Acta Universitatis Danubius. Juridica, Vol 11, No 3 (2015)

Andy PUŞCĂ¹

Abstract: In the civil law and the international law, the minor immigrants are the new protagonists of migratory processes and constitute a fundamental subject. During the last decade, the presence of minors in the most important migration phenomenon has united migrations worldwide and the numbers increased significantly. There is no universal definition of the minor immigrant. This paper aims to describe the concept of minor immigrant, the effects of juvenile migration on the EU Member States and the measures to be taken in order to prevent the negative aspects and to reduce the human costs of migration processes. The method applied is the creation of placement and protection models able to comply with the obligations imposed by international conventions, model that is far from being considered adequate, since the convictions of the European Court of Human Rights prove the lack of practice in the field.

Keywords: immigration; juvenile; Europe

1. Introduction

The movement of population, in its diverse forms and with its different results, has always led to the formation of stable societies, whether this movement of persons was performed individually or in a group, commercial exchanges, peaceful colonisations and bloody invasions that contributed to the creation of the history of human civilization. Nowadays, migrations are one of the most visible and controversial factors of change in our societies, as, indeed, during the past decades, movement beyond borders has increased and diversified. New states have joined the map of departure and arrival places, others have become transit areas. Different neighbouring countries of more developed regions, such as Mexico, Russia, and North Africa have become, at the same time, departure, arrival and passage areas for the migrating flow. Others, such as Italy and, generally, Southern Europe have changed their status in world geography of human mobility, upgrading from origins of the migrating flow to destination countries.

However, immigration is not just an issue of population movement, but it is a more articulate case, in which the active subjects of the migration process, the receiving states, the reactions of society and the origin states come up in the discussion. (Ambrosini, 2010, p. 12)

In total, migration is around 3% of the world population: in numbers, this represents approximately 214 milions out of 7 billion people.² Nevertheless, these numbers hide a very heterogenous and differentiated phenomenon whose explanation would not be complete if we would not take into consideration different factors comprising it and that are in permanent evolution.

We start from the reasons determining people to leave their own country (conflicts, persecutions, poverty, increased need of jobs) and we arrive at the reasons for which a certain country is chosen (previous settlement of a family member, major facility of settlement and residence, the influence of the mass-media in promoting certain places). The subjects, protagonists of the migrating phenomenon, are also heterogenous: not just people forced to move or people looking for modest jobs, but also qualified subjects, with intellectual, professional, entrepreneurial competencies, that, nowadays, are the object of specific recruitment policies abroad.

An additional element of differentiation that can be generally identified: one of the most interesting and innovative aspects of contemporary migration is the „feminisation” of the migrating flow. The case in which the husband migrated first and was followed by his wife was typical for indo-european migration after the world wars, but, today, almost half of the immigrants are women, many times workers (Ambrosini, 2010, p. 15).

Finally, in the general framework of migration processes, we introduce a phenomenon that needs to be studied and monitored in a specifical and punctual manner: the phenomenon of juvenile migration that needs to be analysed more profoundly as it is in continuous transformation. More precisely, these transformations regard the minors’ nationality of origin; their anagraphic characteristics; their migration and insertion paths; the reasons for migration; their difficulties; their desires; their favorite places on their journey; the structures to which they are entrusted or on which they count, whether they are institutional or not.

To simplify this very dynamic and hard to characterize phenomenon, we can distinguish between different categories:

• the minors born from foreign parents, that have not experimented migration first hand;

• the minors born abroad that return regularly to their destination state in order to join their parents;

• the minors immigrating along with their family;

• the minors that are refugees or asylum seekers;

• the minors that are war refugees;

• the children in mixed families;

• the unaccompanied minors. (Bertozzi, 2010, p. 23)

According to the latest report of the United Nations High Commissioner for Refugees³, children and youngsters under 18 years of age represent 46% of the refugees and 34 % of the asylum seekers.

2. The Definition of the Minor Immigrant Concept

There is no universal definition of the minor immigrant, at an international level. According to the United Nations High Commissioner for Refugees the minor immigrant is defined as the: „child under 18 years of age – only if, in accordance with the legislation applying to the minor, the legal age was not reached before – separated from his parents and who is not under the guardianship of an adult who, based on the usual law, is responsible for him.”⁴

Still in accordance with the United Nations High Commissioner for Refugees, the terms „unaccompained minor” or „unaccompained child” should be used differently than the term „orphan”, as an orphan child is a child whose both parents are deceased. This aspect must always be carefully checked and must never be assumed because labeling children as „orphans” tends to favour adoptions, rather than the search for their families.⁵

Furthermore, different separation reasons have diverse implications regarding the care for the child: minors can be, incidentaly, separated from their families, they can be kidnapped or they can be orphans. They may have run away from their own family, or they can live independently with their parents’ agreement. Some children may be sent to the country of destination by the parents remaining in the country of origin, while others may be left in the country of destination by the parents returned home or relocated in another country. In conflict situations, however, children may be separated from their parents due to their military recruitment or detention.

Thus, it is essential that unaccompanied minors are identified as soon as possible in order to begin the search for their parents or other relatives. Indeed, many times, minors end up in the care of other immigrants or refugees and experience has proven that their physical and developmental needs are not always satisfied.

The United Nations High Commissioner for Refugees, thus, advises for the usage of the expression „separated children” since, especially in emergency situations, not all minors who should be classified as minor immigrants are in the situation of being „without guardian” as it is provisioned in the general guidelines regarding protection and care, even if they are separated from their legal guardian. (Bichi, 2008, p. 35)

Also, in certain cases, when minors are not completely alone, but live with members of their „extended”family or with other adults, although they are classified as „unaccompanied” they require the same protection offered to unaccompanied children as the „guardian” does not appear to be capable or adequate to take on the responsibility, and it is not uncommon that the minor is in a risk situation due to this relation. For these reasons, the expression „separated children” would be the most adequate to direct attention to the protection that this group requires.

The program in favour of the minor immigrants in Europe encourages the usage of the term „separated” minor rather than „unaccompanied”, also mentioning the category of minors who are considered to be separated minors and, explicitely, including asylum seeker minors. The definition of the unaccompanied foreign minor to be found in a Resolution of the Council of Europe⁶ is in the same direction, whose application field is limited to: „third countries citizens under the age of 18 who arrive on the territory of member states unaccompanied by an adult, in accordance with the usual law and as long as their custody is not taken over by a responsible adult, as well as minors, citizens of third countries, left unaccompanied after the entry on the territory of member states.”⁷

Especially with this provision, the Resolution shows how not all unaccompanied minors cross the border alone. Indeed, children and youngsters may come with their parents or with other relatives or adults declaring to be relatives, but whom, in reality, are just smugglers. In the first case, the minors could be taken away from their parents due to their incapacity to take on responsibility for the children, thus becoming unaccompanied minors or, more precisely, separated minors. However, the second case describes the human trafficking phenomenon. In this case, there is a difference between human trafficking and smuggling. They are both an organized form of illegal immigration, but they are different. Human trafficking is, indeed, a criminal act intent on exploiting people, which leads either to their illegal recruitment and entry in the countries of destination, or to their introduction in illegal business networks, including illegal work, sexual industry, pornography, forced labour and human organs trafficking. But human smuggling is the illegal transport of people from their country of origin to their destination country, the difference being that the relation between the smugglers and the victims ends at the time of arrival at destination.

Concerning the recognized importance of the phenomenon, human trafficking, especially women and minor trafficking, has become the object of different documents approved by the European Union⁸, the Council of Europe⁹, the Organisation for Security and Cooperation in Europe¹⁰ and the United Nations¹¹; these were classified among the forms of slavery and were recognized as crimes against humanity in the founding statute of the International Criminal Court in Hague, due to an amendment requested by humanitarian organizations and suggested by the Italian delegation during the Rome Diplomatic Conference in June 1998.

The diversity and complexity of these phenomena are reflected in the number of human trafficking victims: there are more than 23 milion migrants submitted to trafficking, sexual exploitation, forced labor and, out of these, 26% are minors.¹² However, these numbers do not include the case of asylum seeker minors that, even they are not explicitely mentioned, are also considered to be the object of the Resolution in 1997, as follows: „the objective of this resolution is to set directions concerning the treatment of these unaccompanied minors regarding issues such as reception, residence and repatriation terms and, for asylum seekers, the acceleration of the applicable procedures.”¹³

Regarding this latest aspect, it must be specified that, according to the Dublin Convention, an asylum seeker is: „a foreigner who submitted an asylum demand for which a final decision was not yet reached.”¹⁴ Based on the Geneva Convention, the refugee is the person who: „fearing, on solid grounds, persecution due to his race, religion, nationality, belonging to a certain social group or political opinion, is outside the country whose citizen he is and cannot or does not want, due to this fear, to use the protection of the state in which he has regular residence as a consequence of such events, cannot or does not want to return due to the fears presented above.”¹⁵

The United Nations High Commissioner for Refugees, when analyzing the situation of minor immigrants, detected some states that not only are not capable of supplying exact data about these children but, also, use the definitions presented here even though these refer to asylum seekers in general, ignoring the special conditions of minors.

The New York Children’s Rights Convention provides, indeed, that: „the participating states must adopt appropriate measures to ensure that a minor asylum seeker or who is recognized as refugee in accordance with national or international legislation that applies to the minor, whether he is accompanied or not by his natural parents or by another person, receives adequate assistance and international protection as it is provided by this Convention or by other humanitarian international law instruments to which these states have adhered.”¹⁶

3. Effects of Juvenile Migration in Europe

Out of the 17700 asylum applications submitted in 2013 by minor immigrants more than 13300 were made in Europe.

Switzerland and Germany have registered, again, the most of applications, 2700 and 2100. Belgium and the United Kingdom were other important countries for which applications were made, 1600 and 1300. The information available indicates that 5200 unaccompanied minors had their refugee status recognized or some form of complementary protection was offered to them. The number of positive answers was, however, higher in the years before: 5400 in 2012 and 7700 in 2011. In any case, Europe gave 58% of all positive decisions in 2013. The information regarding the minor immigrants’ countries of origin confirm the trend already present in the past years: most of them are coming from countries of origin such as Afganistan and Somalia; half of minor immigrants in 2013 come, indeed, from these two countries.

Regarding the general phenomenon of minor immigrants, in Europe we can notice different factors of heterogeneity. There are profound differences in the singular national definitions, in the registration method and even in the social policies implemented.¹⁷ Definitely, the accuracy of statistics increases according to the quality of registrations: a high number of questioned minors can be a sign of a good registration procedure, while a small number of questioned minors indicates, too often, an inefficient procedure. Unfortunately, since Europe does not have yet standardized procedures, it is not possible to precisely assess the accuracy of these statistics. All these obviously lead to an incomplete and partially correct analysis regarding the juvenile migration phenomenon which, if known precisely and punctually, would facilitate the management of the corresponding social policies. (Bichi, 2008, p. 45)

In this regard, the United Nations¹⁸ recommends certain practices, good to follow in order to obtain complete, accurate and, most of all, comparable data: the statistics should contain biographic information for each minor (age, sex, country of origin, citizenship, ethnicity), should indicate the full number of minors trying to enter the country and the number of those who were denied entry, legal status, the solution for lodging, news regarding potential family reunions and the number of asylum applications. Regarding the last aspect and in specific reference to minor immigrants, the Resolution of 1997 is decisive.¹⁹ The general guidelines set the necessity to immediately identify the minor, to search for the parents or the relatives and, where it is possible, to unite them, but also to lodge the minor, during the asylum procedure, in adeaquately equipped places.

The main step of the „communitarization” process was the Tampere Program²⁰ which, in founding a European space of justice, freedom and security, insists on the necessity to develop a common policy that includes, besides the management of the migrating flow, the relation with the countries of origin of the immigrants and the guarantee of fair treatment for the citizens of third countries, as well as a common European regime regarding asylum. Two phases are foreseen having as a purpose the creation of such a regime: the first phase, already concluded with the adoption of several legal instruments,²¹ meant to harmonise national legislations through the adoption of common minimal regulations and the second phase, meant to create a common procedure for asylum and a common protection status.

Some critical aspects of the system, such the excessive differentiation of the procedures in force in the member states and the treatment conditions have determined the European Commission to start a revision phase: first with the Lisbon Treaty²² and, then, with the European Pact for Immigration and Asylum, an important step was made towards defining a common European policy with regard to immigration and, particularly, regarding asylum. Indeed, one of the priorities is to constitute a Common European Asylum System whose main purpose is to create fairness in asylum procedures and to ensure that the people in need of international protrction can benefit from it in the entire European Union. This commitment was signed by all the member states of the European Union.

Problems referring to the European framework are also related to a further aspect: evaluation of age. For several reasons, that can be traced back to the lack of documents of identification, to the lack of registration of the birthdate in the country of origin, the lack of knowledge of one’s own birthdate, the knowledge about the actual age of the children crossing the border proves to be difficult enough. The methods used in these cases may vary, but they do not always take into consideration the minor’s human rights and they are not riskless in case of a wrong result. Several European countries use methods such as tags on the hand wrist and teeth X-rays, but legal medicine studies appear to deny their accuracy, indicating these methods only to make estimates.

Royal College of Pediatrics and Child Health²³ stated the adequacy of using X-rays to determine the age of immigrants and recommended to pediatricians to state opinions about the child’s age only in terms of „probability” „posibility” or „unlikeliness”.

Finally, the United Nations Committee on Children’s Rights stated that, in order to determine age and to identify the minor and protect him, we shouldn’t only take into consideration „the individual’s physical appearance, but also his psychological maturity”. They also recommend that this determination be done scientifically and with certainty, taking into consideration the minor’s needs, in order to avoid any risk on the minor’s physical integrity and to respect his dignity, at all times. Finally, the Committee states the principle according to which, if his age is uncertain, the individual must be given the benefit of a doubt, in the sense that „if there is a possibility that he may be a minor, he should be treated as such.”²⁴

The recurrent usage of forensic procedures raises particular issues, especially when, based on these procedures, decisions such as detention or expulzarea are made for children whose age could not be determined with certainty.

4. Conclusion

The management of juvenile immigration is a serious issue whose solutions are fragile, prone to constant changen due to more and more restrictive laws that, in too many cases, do not take into consideration the age of these subjects and their painful stories, but tend to consider them adults.

There is not much attention paid to these youngsters, who are abandoned, becoming this way an easy prey for adults with illegal activities like prostitution, drugs and illegal work.

More and more often, the needs of minors are delegated from local institutions to non-governmental organisations. Each intervention that has in mind the minor’s interest should, however, be conceived like an integrated intervention, in which different institutions cooperate with other entitites and structures dealing with minors, looking for appropriate solutions satisfying their multiple needs.

Also, it is fundamental to take into consideration the fact that many minor immigrants come from countries at war and, many times, have psychological problems caused by different traumas. The experience of war and violence creates in them mechanisms of physical and psychological defense.

At the same time, the forced separation from their own parents can be a cause of shock and crisis, manifesting as feelings of fury and guilt. These behavioural mechanisms must be corrected, this only being possible if the minors trust people caring for them in the new country, this not implying that the reconnection with their country of origin cannot be made. For these reasons, the interventions of formation of minor immigrants must be articulate interventions taking into consideration a multitude of factors and expectations about the life of the minor. A social policy whose purpose is to integrate the minor cannot ignore their training. The most appropriate educational approach is intercultural, unifying training experiences gained in the country of origin with those that the child will acquire in the country of destination.

Their needs are not only material, their particular situation requiring a global and interdisciplinary approach capable of helping them rebuild a new balance, that is, definitely, hard to obtain, but that is, also, indispensable for their future life and for the life of society as a whole.

Especially the placement and detention, where these are necessary, should take place in spaces that are appropriate and dignified, where the minors can perform recreational activities and keep a connection with the outside world; as soon as possible, the minor should be informed, in a language he understands, that he has the possibility to submit an asylum application. All these guarantess should be applied to minor immigrants irrespective of the reasons for their entry on the territory of another state, whether they are related to economic necessities or to the risk of suffering offensive treatments of human dignity in the country of origin.

Thus, from the analysis of the migrating phenomenon of foreing unaccompanied minors, we notice the necessity of admitting the complete centralitatea of these children: not „foreigners” to regulate and sanction their presence, but minors to protect, the causes of immigration, such as violence or abuse to which they may have been exposed, if they are abandoned by the society to which they turned for protection.

All these are possible only by the provision of placement and protection models capable of complying with the obligations imposed by international conventions.

5. References

Ambrosini, M. (2010). Richiesti e respinti. L’immigrazione in Italia, come e perche/ Requested and rejected. Immigration in Italy, how and why. Milano: Il Saggiatore.

Bertozzi, R. (2010). Le politiche sociali per i minori stranieri non accompagnati. Pratiche e modelli locali in Italia/ Social policies for unaccompanied minors. Practices and local models in Italy. Milano: Franco Angeli.

Bichi, R. (2008). Separated children. I minori stranieri non accompagnati/ Separated children. The unaccompanied minors. Milano: Franco Angeli.

Van Bueren, G. (2007). Child Rights in Europe, Pushing an pulling in different directions: The Best interests of the child and the margin of appreciation of States, Council of Europe, 2007.

*** (2011). Drepturile copiilor, așa cum le văd ei/ Children's rights, as they see them. Oficiul pentru Publicații al Uniunii Europene, Comisia Europeană, Luxemburg/ Publications Office of the European Union, European Commission, Luxembourg.

*** (2014). Manual de drept european în materie de azil, frontiere și imigrație/ European Law on Asylum, Borders and Immigration. Agency for Fundamental Rights of the European Union. Council of Europe.

*** Minori străini neînsoțiți lipsiți de protecție în Europa/ Unaccompanied foreign minors in Europe unprotected. Sinteză a raportului comparativ, publicat în 2013, în cadrul proiectului PUCAFREU „Promovarea accesului copiilor neînsoțiți la drepturile fundamentale în Uniunea Europeană”/ Comparative summary report, published in 2013 under PUCAFREU project "Promotion of unaccompanied children's access to fundamental rights in the European Union.

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