Breaking down barriers to reception rights for unaccompanied migrant children in Europe: Does intersectional discrimination matter?
Date
2023-10-10Embargo Date
2025-05-29
Author
Raissian, Claire
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Abstract
Introduction
‘States should ensure that children in the context of international migration are
treated first and foremost as children’ 1
Although the exact number cannot be known, recent figures indicate that there are
approximately 36.5 million children on the move internationally, with at least 300,000
unaccompanied children estimated to have moved across borders globally in 2021.2
Many have been forced to flee brutal and protracted conflict, the effects of the climate
crisis, or from persecution arising from civil wars or gang violence.3 While some will
seek asylum, many others will not.4 Whatever the reason for their migration,
unaccompanied children on the move in the context of international migration remain
inherently vulnerable to harm and violence.5 Where smugglers are relied upon to
transport them to Europe, such children are more likely to experience violence or exploitation, or to fall into the hands of human traffickers on the way.6 Now, without
any government to protect them and limited recourse to rights, they must rely on the
political will of receiving states and foreign governments to operationalise their rights,
as set down in international human rights law and policy, most notably in the
Convention on the Rights of the Child.7
The almost universally ratified CRC sets a baseline for the age of a child in its Article
1, as ‘every human being below the age of eighteen years’, while Article 2(1) CRC
stipulates that States Parties ‘shall respect and ensure the rights set forth […] to each
child within their jurisdiction’, irrespective of migration status.8 However, while
unaccompanied children are recognised in Europe as rights-bearers in international,
regional and domestic law, discriminatory barriers to rights are frequently erected by
receiving states. Actions by states may include the physical exclusion of children from
the territory of the state, or a refusal to recognise an adolescent as a child, in order to
deprive them of their rights under the CRC and other legal instruments.
Unaccompanied children who are correctly identified as such are frequently ‘left to
languish’ in dire conditions in reception facilities across the region, that violate the
prohibition on torture and inhuman or degrading treatment under Article 3 of the
European Convention on Human Rights.9
It will be seen that, while the actions of
states in the treatment of this group constitute de facto breaches of Article 2(1) CRC
and other discrimination norms, the constraints inherent in a ‘traditional’ legal
analysis of discrimination means that complaints of discrimination are rarely made by
unaccompanied children.