Transcript THE IMMIGRATION ASPECTS OF CHILD TRAFFICKING IN THE UK

FORMALISING RIGHTS
The Best Interests of Separated Children
in the Asylum System
BEST INTERESTS
• Article 3 of the CRC states that in all
actions concerning a child his or her
best interests shall be a primary
consideration
• Lady Hale recognised this as a
fundamental principle of
international law in ZH (Tanzania) v
SSHD [2011] UKSC 4
SEPARATED CHILDREN
• The content of the CRC must be
applied without discrimination of any
kind
• It applies to all separated children
outside their country of origin
• It also recognises their specific
needs
WHAT ARE BEST INTERESTS ?
• More than providing the care and
protection that may be necessary for
their well-being ?
• Wider than Section 1 of the Children
Act 1989 ?
• Is the content of the concept
informed by the other articles in the
CRC?
HISTORICAL DEVELOPMENT
• 1948 Universal Declaration on
Human Rights stated that children
were entitled to special care and
assistance
• 1966 International Covenant on Civil
and Political Rights said a child has
the right to the protection required
by his or her status as a child
1959 DECLARTION ON THE
RIGHTS OF THE CHILD
• Still characterised children as
needing special safeguards and
care because of their physical and
mental immaturity
• As yet no recognition of children as
the active bearers of rights in
addition to welfare and
developmental needs
1989 CONVENTION ON THE
RIGHTS OF THE CHILD
• Provides children with a range of civil
and political rights (Case of Neulinger
and Shuruk v Switzerland, ECtHR,
Application 41615/07)
• As well as cultural, economic and
social rights
• A right under Article 12 to participate
and
• A right to life and development
PROTECTION NEEDS
• CRC prohibits physical, mental or sexual
abuse and exploitation, neglect, child
trafficking, torture and ill-treatment and
recruitment of child soldiers
• It also confirms a child’s right to asylum
DURABLE SOLUTIONS
• The CRC obliges the United Kingdom to
find a durable solution for an asylum
seeking child based on an individual
assessment of his or her best interests
• See Article 16.2 of Trafficking Directive
DUAL ROLE OF ARTICLE 3
• Article 3 has both a procedural and
substantive component
• These are inter-dependent and it is
only when both are fully developed
that a durable solution can be
arrived at for the individual
separated child
SUBSTANTIVE CONTENT
• Recognition of the child’s right to
asylum
• Recognition of child specific
persecution
• Preparation of child specific country
information
PROCEDURAL CONTENT
• Access to the territory and child
specific processes
• Achieving best evidence interviews
• Pathway Planning
• Legal representation
PROVISION OF A GUARDIAN
• Separated children lack legal capacity
• Foster carers and social workers do not have
parental responsibility for them
• Need an adult to take a co-ordinating role in a very
complex situation
BEST INTERESTS PROCESS
• The asylum determination process
sits within a wider Best Interests
Determination
• Even if a child is granted asylum a
durable solution to meet the totality
of his or her needs will have to be
decided upon
NON ASYLUM RIGHTS
• If the child is not found to be entitled
to protection under the Refugee
Children – he or she may be entitled
to other international protection
• And/or it may be a breach of the
CRC to remove him or her from the
United Kingdom
• This also requires a Best Interests
Determination process
FORMAL PROCEDURES
• At present the concept of best
interests is applied without any
consistency
• No national body is monitoring its
application to separated children
outside their countries of origin
ACTIONS NEEDED
• A national system to ensure durable
solutions for separated children, whether
or not they are entitled to refugee status
• National procedures providing a means by
which a child can participate in the
process
• The sharing of responsibility between the
family court and other professionals
coming into contact with separated
children
NADINE FINCH
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Barrister
Garden Court Chambers
57 – 60 Lincoln’s Inn Fields
London WC2A 3LS
8th OCTOBER 2012