Post by Celia Rooney, practicing barrister at Blackstone Chambers, with a particular interest in migration, criminal justice, equality law and human rights. She holds an undergraduate degree in law (LLB) from the University of Glasgow, a masters in law from the University of Oxford (BCL) and was called to the Bar in 2015. This is the final instalment of Border Criminologies’ themed series on Current Legal Issues on Migration organised by Ana Aliverti and Celia Rooney.​

IIn January this year, Border Criminologies launched the first in a series of themed blog posts with a legal perspective on issues of migration and border control. The theme of the first series of posts was unaccompanied child migrants in and beyond Europe. As Ana Aliverti outlined in her introductory post, the aim of the series was to open a dialogue on this topic across a number of disciplines and around the world. To that end, a variety of individuals and organisations – academics, practitioners, charitable organisations and researchers – from across the globe have contributed to the series. The posts have added to the literature available in this field in an accessible and digestible format. We hope that the series has plotted dots which the community can begin to join through further debate, research and activism.

Photo: Lydia Geissler / Fotolia

In terms of the findings of the series, two preliminary issues emerged: data and definitions. Nando Sigona and Rachel Humphris considered the former in a post that examined the number of child migrants coming to Europe, as well as their profiles and routes. Data in this field is plagued by gaps and inaccuracies: migrants are conflated with refugees; the definition of an unaccompanied minor varies; and there is a real risk of double counting (or failing to account for certain children at all).

In terms of defining childhood, the practical issue of age determination has proved important. As practitioners in this field know well, the arbitrary application of age determination criteria means that children are often not recognised as such and are therefore excluded from the protections associated with that status. 

I analysed the issue of age determination a post for the series through the lens of the recent decision of the European Court of Human Rights in Abdullahi Elmi & Aeys Abubakar v Malta. While the Strasbourg court found that detention in Malta violated the rights of two children where there were unreasonable delays in their release pending final notification of the results of their age determination processes, there nonetheless appears to be tacit acceptance amongst Europe’s courts and global human rights institutions of both the use of age determination processes and the associated detention pending confirmation of age.

Roxanna Dehaghani also examined the issue of age determination, focusing on the procedures and guidelines used to assess age in the UK. Her post not only questions the accuracy and ethical implications of age determination processes, but also records the culture of disbelief that children often encounter. Migrant children are often expected to look and behave like children in the UK, despite the obvious differences in culture and experience. 

Photo: AP/Lefteris Pitarakis
From home to abroad, the series focused not only on the position of unaccompanied minors in the UK, but also the comparative experience. Andriani Fili and Virginia Xythali, for example, examined the asylum process for child migrants in Greece. In her post, she noted the disparities in the approach of the Greek authorities in identifying and registering unaccompanied minors, as well as the dysfunctional system they face upon arrival. Children on the move are not only deprived of some of their most basic needs (including food, shelter, education and healthcare), they also often lose their autonomy and agency. For good or bad, things are done to them and for them – they are governed, protected, abused – in a system in which they have little control.

While the number of unaccompanied minors arriving as migrants in Greece has increased dramatically in recent years, it has fallen in Ukraine. Yulia Ioffe outlined this phenomenon and the experience of unaccompanied minors in Ukraine in her post. In light of problems in Ukraine, including internal conflict and unrest in Crimea, people appear to be choosing alternative transit routes that may be safer. For those unaccompanied minors that arrive in Ukraine, problems persist despite reform of the system and legal recognition of the rights of unaccompanied minors due to gaps in implementation. 

Beyond Europe, the treatment of unaccompanied minors and other children by the Australian authorities in the offshore processing centre at Nauru Island has made the headlines. Louise Boon-Kuo considered this issue in her post. Offshore processing is used to deprive individuals of the legal protections they would be entitled to on the mainland. This practice is particularly sinister when there is extensive evidence of the harm that unaccompanied children face in offshore processing facilities.

Having identified some of the problems that unaccompanied minors face, the question that remains is what, if any, role the law can play in alleviating their suffering?

It is clear that legal challenges continue to lead to important (hard-fought) victories in individual cases. First instance decision making in the field of immigration and asylum is notoriously poor, such that legal action is often justified. Moreover, cases involving unaccompanied minors (particularly where they involve young children) may be met with sympathy in the courts.

Photo: USA/Rex/Shutterstock
However, as John Hopgood, writing for Bail for Immigration Detainees, has recognised reductions in the legal aid budget in the UK have cut off this vital lifeline for many people before the courts.  Moreover, while litigation may meet the needs of unaccompanied minors in specific cases, it is unclear that it provides an answer to the wider problems in this field. This was recognised in the context of the offshore processing centre at Nauru, by Louise Boom-Kuo, who noted that while there were notable victories before the courts, overall, “legal strategies have been unsuccessful in preventing harm”. I came to a similar conclusion in my contribution to the series, which considered the decision of R (ZAT) v Secretary of State for the Home Department. In that case, unaccompanied children from the Calais camp challenged the UK’s refusal to admit them to the UK where they had not applied for asylum in France. While the children in that case are now in the UK, the attempt to remedy systematic failures in the European asylum system via the courts was unsuccessful. Legislation, rather than litigation, was required.

Since that post was published, the Government has announced that the number of children brought to the UK under the so-called ‘Dubs amendment’ process will be capped at 350. The Dubs amendment, named after Lord Dubs (himself a former kindertransport refugee), sought to ensure that unaccompanied children could be brought from the Calais camps to be resettled in the UK. The cap has been passed in Parliament, despite early assurances that thousands of children would be relocated under the scheme and in the face of the insistence of many local authorities that they have the capacity to take more.

Overall, while this themed series has focused on legal issues faced by unaccompanied child migrants, the law can only go so far. There must be political will to effect real change in this field. To that end, it is vital that the legal community, and those in other fields, continue to advocate the rights of unaccompanied children – and to ensure that the most vulnerable in the system are themselves heard.

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How to cite this blog post (Harvard style)

Rooney, C. (2017) Current Legal Issues in Migration: unaccompanied minors – what have we learned?. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/03/current-legal (Accessed [date]).