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Unaccompanied Migrant Children and the Implications of Brexit

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Gender and Queer Perspectives on Brexit

Part of the book series: Gender and Politics ((GAP))

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Abstract

The protection of unaccompanied minors (UAMs) is a moot legal and policy matter both at the European and international levels. The 2015/16 ‘refugee crisis’ has exposed the weaknesses in design and implementation of the Common European Asylum System (CEAS) with respect to the protection of child refugees in general, and UAMs in particular. In light of these shortcomings, the European Commission set out to reform the CEAS rules with the aim of bolstering the human rights protection dimension. This chapter will discuss the implications of Brexit on UAMs from a gender perspective by arguing that male UAMs, in particular, will be most affected by it. Without the EU regime (legal and policy) of rights protection, male UAMs in the UK will face reduced children’s rights protection, lack of specific safeguards for UAMs, such as guardianship, and, therefore, will be exposed to the risks of child trafficking and exploitation.

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Notes

  1. 1.

    ‘Unaccompanied children’ refers to the category of children—as defined by the UN Convention on the Rights of the Child—who are outside their country of origin and who have been separated from both parents and other relatives and are not being cared for by an adult, who, by law is responsible for doing so. It includes a child who is left unaccompanied after they have entered the territory of an EU Member State (Art.2(1) of the Directive 2011/95/EU Recast Qualification, OJ L 337, 20.12.2011).

  2. 2.

    UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html.

  3. 3.

    Procedures Directive 2005/85/EC (recast 2013/32/EU).

  4. 4.

    Reception Conditions Directive 2003/9/EC (recast 2013/33/EU).

  5. 5.

    Qualification Directive 2004/83/EC (recast 2011/95/EU).

  6. 6.

    Dublin II Regulation 343/2003 (recast 604/2013).

  7. 7.

    Directive 2011/36/EU on prevention and combating trafficking in human beings and protecting its victims in the Official Journal of the European Union (OJ L 101, 1 15.4.2011).

  8. 8.

    https://fullfact.org/immigration/asylum-seekers-uk-and-europe/.

  9. 9.

    http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report.

  10. 10.

    https://www.gov.uk/government/collections/immigration-bill-2015-16.

  11. 11.

    Borders, Citizenship and Immigration Act (2009), section 55, available at: http://www.legislation.gov.uk/ukpga/2009/11/section/55.

  12. 12.

    UK Visas & Immigration, Section 55 Guidance, 12 October 2011, available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/431346/Section_55_v12.pdf.

  13. 13.

    According to the UNHCR Manual on Refugee Protection and the ECHR: ‘the Court considers that Article 3 of the ECHR can be used by those in need of international refugee protection. While the ECHR is not an international instrument concerned with the protection of refugees per se, Article 3 has been interpreted by the Court as providing an effective means of protection against all forms of return to places where there is a risk that an individual would be subjected to torture, or to inhuman or degrading treatment or punishment. In many respects, the scope of protection provided by Article 3 is wider than that provided by the 1951 Convention, though in others it is more limited’. Available at: http://www.unhcr.org/3ead2d262.pdf.

  14. 14.

    The UK adopted a scheme to enable a number of unaccompanied children to come to live safely in the UK—even if they did not have family links here. This was called the Dubs Amendment. It was named after a man who led the scheme being introduced, called Lord Alf Dubs. See http://www.bbc.co.uk/newsround/38932500.

  15. 15.

    http://www.bbc.co.uk/newsround/38932500.

  16. 16.

    Among the EU Member States, only Britain and Denmark have opted out from the Family Reunification Directive.

  17. 17.

    https://www.refugeecouncil.org.uk/what_we_do/childrens_services/about_the_childrens_section.

  18. 18.

    Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ L 180, 29.6.2013, pp. 60–95.

  19. 19.

    Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, OJ L 337, 20.12.2011, pp. 9–26.

  20. 20.

    Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ L 180, 29.6.2013, pp. 96–116.

  21. 21.

    For instance, under Art. 3.5 of the Commission proposal it is stated that ‘the rights of unaccompanied minors have also been strengthened through better defining the principle of the best interests of the child and by setting out a mechanism for making a best interests of the child-determination in all circumstances implying the transfer of a minor’ (European Commission 2016d, 14).

  22. 22.

    According to the CRC General Comment No. 6: ‘The assessment must be conducted in a scientific, safe, child and gender-sensitive and fair manner; avoiding any risk of violation of the physical integrity of the child; giving due respect to human dignity; and in the event of remaining uncertainty, should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, s/he should be treated as such’ (UN Committee on the Rights of the Child 2005, 10).

  23. 23.

    UN Committee on the Rights of the Child, General Comment No. 6 (2005).

  24. 24.

    For instance, in March 2017, a Court of Appeal’s ruling criticised Home Office policy and claimed that immigration officers could not simply disbelieve the age given by child refugees (The Guardian2017c).

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Authors and Affiliations

  1. Politics & International Relations, Social Sciences, University of Southampton, Southampton, UK

    Ingi Iusmen

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  1. Ingi Iusmen
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Correspondence to Ingi Iusmen .

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  1. School of Law, University of Sussex, Brighton, UK

    Moira Dustin

  2. School of Law, University of Sussex, Brighton, UK

    Nuno Ferreira

  3. School of Law, University of Sussex, Brighton, UK

    Susan Millns

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Iusmen, I. (2019). Unaccompanied Migrant Children and the Implications of Brexit. In: Dustin, M., Ferreira, N., Millns, S. (eds) Gender and Queer Perspectives on Brexit. Gender and Politics. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-03122-0_8

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