CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ

AGE ASSESSMENT OF UNACCOMPANIED MINORS IN ASYLUM LAW

2. Specific standards of child protection in the field of asylum law and the need to determine the applicant’s age International law, EU law, and national law reveal the importance of determining whether a person in migration is a child. These legal standards show that children in migration situations, especially unaccompanied children, are given significantly higher guarantees compared to other migrants. Protection of children in migration following international documents The main document universally applicable at the international level and exclusively dedicated to children’s rights protection is the Convention on the Rights of the Child. 6 It stands ‘as the centrepiece and key unifying element in an integrated legal regime for recognizing the rights of all children that stems from all human rights law, IHL and refugee law’. 7 T he document indicates that state authorities must protect the rights of every child during migration, following the principle of the child’s best interest. All branches of government (executive, legislative, and judicial) must obey this principle regarding unaccompanied and separated children 8 without discrimination. Other international documents support the protection of child rights embedded in the Convention on the Rights of the Child, which is equally applicable to children and adults in migration. Europe has additional international documents applicable to children in migration within the Council of Europe: the European Convention on Human Rights with Protocols (ECHR), the European Social Charters, and the Convention on Action against Trafficking in Human Beings. The ECHR, 9 a general convention applicable not only to children in migration 10 but also to other children and adults, does not contain explicit provisions for unaccompanied minors. However, other provisions of the convention require the protection of children’s rights without discrimination (Article 14 of ECHR and Article 1 of Protocol 12). Such guarantees include the rights to liberty and security (Article 5), a fair trial (Article 6), respect for family and private life (Article 8), education (Article 2 of Protocol No. 1), and others. In the same way as adult migrants, they have a right to leave the country (Article 2 of Protocol No. 4). Article 4 of Protocol No. 4 prohibits the collective expulsion of foreigners, and Article 1 of Protocol No. 7 foresees procedural safeguards against expulsion for lawfully resident foreigners. The European Court of Human Rights (ECtHR) emphasised that states have a duty to care for unaccompanied minors, and any decision concerning a child must respect the rights of the 6 Convention on the Rights of the Child Rights (with additional protocols) (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3. 7 CROCK, Mary / MARTIN, Hannah. First things first: international law and the protection of migrant children. In: Protecting Migrant Children . In. CROCK, Mary / BENSON, Lenni. Protecting migrant children: in search of best practice . Northampton, MA: Edward Elgar Pub., 2018, 75–96, 82. 8 Convention on the Rights of the Child General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children outside of their Country of Origin, CRC/GC/2005/6, 1 September 2005, Article 4(13). 9 Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe Treaty Series 005, Council of Europe, 1950, (ECHR). 10 For an early study on this topic, see NYKANEN, Eeva. Protecting Children? The European Convention on Human Rights and Child Asylum Seekers. Online. European journal of migration and law . 2001, 3 (3-4), 315–345.

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