Post by Ana Aliverti, Associate Professor, School of Law, University of Warwick. Ana is an Associate Director of Border Criminologies. She is on Twitter @a_aliverti. This is the first installment of Border Criminologies new themed series on Current Legal Issues on Migration organised by Ana and Celia Rooney.

At Border Criminologies we are starting a new series of posts focusing on legal issues concerning migration and its control. The law has an important role to play in protecting people on the move by establishing minimum safeguards and imposing duties to protect people’s rights. At the same time, it can also be profoundly exclusionary and disempowering. By upholding the primacy of the sovereignty principle, for example, it can exclude those without formal citizenship status from basic protections. Given the law’s potential for remedying or exacerbating social and global inequalities, it is increasingly important to pay more attention to the way it operates in the field of migration and border controls, to document its shortcomings and highlight its potential for social change. Although recent developments, particularly in Europe, do not give us reasons for optimism, we believe that engaging with current legal issues on migration is vital for understanding the endurance of exclusionary practices and for subjecting states to account.

This series will start by looking at the situation of unaccompanied children in Europe and beyond. Children –and particularly those who migrate alone and are not being cared for by their parents or responsible adults- are among the most vulnerable groups of people on the move. Acknowledging their vulnerability, human rights, humanitarian and refugee laws provide extra protections for these children. The best interest of the child, enshrined in the UN Convention on the Rights of the Child, demands the appointment of a competent guardian on behalf of unaccompanied children. Children need to be identified and registered by the receiving state at the earliest opportunity to ensure they are cared for appropriately. Their family should be traced immediately. They should have access to asylum procedures. In addition to the rights generally recognised for children, unaccompanied migrant children are protected against refoulement to places where they would be in danger, and they should be provided with special measures according to their specific needs. The UN Committee on the Rights of the Child has stated that unaccompanied children should not be detained as a general rule, and their detention should never be justified ‘solely on the basis of the child being unaccompanied or separated, or on their migratory or residence status, or lack thereof’.

In spite of these legal protections, the situation of migrant children in various parts of the globe could not be more appalling and disheartening. Their immigration status often takes precedence thus trumping their right to protection in receiving states. In many countries, health, educational and housing facilities for these children are underfunded, inadequate or non-existent. A culture of disbelief prevails as their age and right to protection is continuously doubted and denied.

As the recent events at the now dismantled Calais camp attest, legal protections do not automatically translate into actual protection as states are adamant to buck their responsibilities towards ‘unpopular minorities’. After a long legal battle in Parliament, last May the Tory majority was forced to backtrack on its opposition to offer settlement to unaccompanied refugee children stuck in the ‘Jungle’ by agreeing to incorporate a clause in the Immigration Act 2016 -the so called ‘Dubs’ amendment named after Lord Dub who proposed it- to transfer these children to the UK. Despite being obliged by domestic law, the British government managed to circumvent its duties by refusing to initiate identification and resettlement proceedings on behalf of these children. A few days before the French government started the clearance of the camp at the end of October, a convoy of children arrived in Britain. Yet, it is not clear how many children are eligible for settlement and what the criteria for protection is. Further, those lucky enough to be transferred are often met with hostility.

In these dark times, when people’s fears and divisions are exploited and manipulated, and basic instincts of compassion, solidarity and humanity are shattered and cast aside, it is vital that we insist on basic protections and reiterate the principles which bind us all. We are keen to open this dialogue with academics, legal practitioners and experts spanning a range of disciplines from around the world to reflect on what the place of the law should be and its potential for protecting the most vulnerable, and for building more tolerant and inclusive societies.       

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How to cite this blog post (Harvard style)

Aliverti, A. (2017) Current Legal Issues on Migration: Our New Themed Series. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/01/current-legal (Accessed [date]).