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Safeguards needed to reduce risks to unaccompanied migrant children in Europe (18 October 2016)

Date: 18/10/2016
Duncan Lewis, Public Law Solicitors, Safeguards needed to reduce risks to unaccompanied migrant children in Europe

The closure of the Calais migrant camp ‘the Jungle’ has received backing from the Children’s Commissioner for England, but the risks remain for unaccompanied children seeking refuge in the UK.

Duncan Lewis frequently represents unaccompanied minors who have undertaken long and dangerous journeys across Europe in order to reach the UK. However, for each child represented, there are many more struggling to complete the final leg of their journey. This leaves them exposed to unimaginably poor sanitary conditions in the Jungle and as easy prey for traffickers and others willing to exploit them. There are reports that children previously residing in the Jungle have gone ‘missing’ following evictions organised by the French authorities.

Under the Dublin III Regulation asylum seekers usually have their asylum claims considered by the authorities of the first European Member State that they reach where they are also fingerprinted under the European Union EURODAC system (see Official Journal of the European Union for more information). However, the same Regulation allows children to circumvent this usual procedure and have their asylum claims considered in Member States in which they already have relatives if it is in their best interests to join their family members. Many of the unaccompanied children residing in the Jungle are there in the hope that one day they will be permitted entry to the UK in order to be reunited with their families.

Proving such familial ties exist is more difficult than many imagine. Unsurprisingly it is common for those fleeing war not to carry with them documentation evidencing their family relationships. This lack of documentary evidence can result in prolonged legal battles to prove such relationships exist. In a recent case of MK, IK & HK v Secretary of State for the Home Department (SSHD) [2016] UKUT 00231 (IAC) the President of the Upper Tribunal heard how the French authorities had concluded that the mother of two children was in the UK, herself having acquired refugee status, but that the UK authorities did not accept that there was sufficient evidence to demonstrate that the children were related to their alleged mother. The Tribunal held that the SSHD had a positive duty to work with the French authorities and to take all reasonable steps and use her best endeavours to organise DNA testing, a welcome finding for other children in similar situations.

Unaccompanied children in Europe may also be eligible for transfer to the UK following the Immigration Act 2016 (“Act”) and the amendment tabled by Lord Dubs, himself a refugee and beneficiary of the Kindertransport put in place during World War II to assist thousands of children to escape the Nazis. Under the Act a specified number of unaccompanied children already registered in Europe before the 20 March 2016 (when the EU-Turkey deal came into force) will be transferred to the UK. The exact number of children is yet to be announced but the Act states that the number shall be determined by the Government in consultation with local authorities.

The Government announced on 17 October 2016 that the first of the children eligible to be transferred to the UK from the Jungle will be this week. This is a welcome development and will hopefully result in the reunification of families and a reduction in the number of vulnerable children left to fend for themselves in Europe.

There is no escaping the fact that more still needs to be done to protect unaccompanied children across Europe. The recent House of Lords European Union Committee report: Children in crisis: unaccompanied migrant children in the UK, (see 2nd Report of Session 2016–17) HL Paper concluded that “...collectively, Member States are fundamentally failing to comply with their obligations under EU and international law to receive and protect children in a manner that recognises their specific vulnerability”. The UK government was not exempt from criticism. The Committee also found that access to legal advice is essential to ensure the proper safeguarding of children’s rights. The Committee was concerned that in the UK, the “provision of free legal advice has been drastically curtailed”.

Author: Kate Newman

Kate Newman is a solicitor in the Public Law Department of Duncan Lewis. Kate specialises in both immigration and judicial review claimant matters. Kate's focus is on, but not limited to, cases including British citizenship and nationality issues, unlawful detention and false imprisonment claims, asylum applications and appeals, spousal visa applications, applications to be recognised as a victim of trafficking and judicial reviews of immigration decisions.

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