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Return of separated children toreturn houses in countries of originPolicy and practice in the Netherlands, European andinternational governing instruments, and recommendationsfor protecting the best interests of the childUNICEF the NetherlandsMay 20121

Claire Achmad, Author and Project Lead, Research and Advocacy OfficerKarin Kloosterboer and Mark Wijne, Project Supervisors,Child Rights and Advocacy TeamUNICEF the NetherlandsPublished by UNICEF the Netherlands, 2012Jacob van den Eyndestraat 732274 XA VoorburgThe NetherlandsTel: 31 (0) 70 333 [email protected]

CONTENTSPreface7Part 1: IntroductionMotivation behind the reportMethodologyEndnotes – Part 1Part 2: Separated children Contextual background and overviewChild asylum-seekers: Who is an “unaccompanied minor” or“separated child”?Understanding separated children seeking asylum as a groupA specific response: Return of separated children to returnhouses in countries of originEndnotes – Part 2Part 3: The European contextThe Charter of Fundamental Rights of the European UnionThe EU Returns Directive and other relevant EU action onseparated childrenThe Council of Europe – Key documents and actionsregarding return of separated childrenEndnotes – Part 3Part 4: International law and policy instrumentsTreaties and soft law documentsThe United Nations Convention on the Rights of the ChildSoft law documentsEndnotes – Part 4Part 5: The Dutch contextThe policy positionThe use of return houses by the Dutch Government –the current situationConcern expressed at the European level about theDutch policy on return of separated children to return housesin countries of originCurrent on-going plans for more return houses in countries of originEndnotes – Part 5Part 6: ConclusionRemaining questions and concernsRecommendationsEndnotes – Part 6Part 7: ChecklistChecklistBibliographyJournal articlesBooksOfficial documents and reportsMedia articlesSpeeches and Conference 0576060616365666868686873743

Annex A: Interview questionsThe use of return-housesThe decision-making processThe process of return to return houses in countries of originConditions in return-housesCare of the child in the return-houseLong-term outcomes for the childAnnex B: Checklist7676767777787881A checklist to achieve good practices when considering the returnof children to third countries: A tool for quality planning for memberstates (the European Council on Refugees and Exiles in strategicpartnership with Save the Children (EU Office).814

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PREFACEUNICEF is mandated by the United Nations General Assembly to advocate forthe protection of children’s rights, to help them meet their basic needs and toexpand their opportunities to reach their full potential. UNICEF is guided bythe Convention on the Rights of the Child, and strives to establish children’srights as enduring ethical principles and international standards of behaviourtowards children. UNICEF’s overall mandate means that as an organisation,it also has a responsibility to monitor the rights of separated children, and toensure their protection as one of the most disadvantaged groups of children.UNICEF the Netherlands is actively engaged with this responsibility andthrough this study has made separated children, and in particular the practiceof returning separated children to return houses in countries of origin fromthe Netherlands, a focus. Of particular concern is the lack of a formal BestInterests Determination in relation to these children when assessing theirsituation, and whether their return to a return house in the country of origin isin their individual best interest. This Report highlights the reasons why this isproblematic and emphasises the need for greater efforts in working to protectand uphold the rights of this group of vulnerable children.Sincere thanks go to all those who have contributed to and cooperated inthe process of this study. Particular thanks go to Jyothi Kanics, Child RightsAdvocacy and Education Section, Private Fundraising and Partnerships Division UNICEF for her support and guidance in the preparation of this Report,along with thanks to Martine Goeman, Defence for Children International theNetherlands, and Christel Kievits, the Netherlands Red Cross for their timegenerously given to reviewing the Report. Finally, thanks go to HeleneSoupios-David, European Council on Refugees and Exiles for so readily encouraging UNICEF the Netherlands efforts to advocate for the use of the ECREand Save the Children “Checklist to Achieve Good Practices When Considering the Return of Children to Third Countries” in the Netherlands. It is hopedthat this invaluable tool (Part 7 of this Report) is put to use in the Netherlandsand we will continue to endorse it in our ongoing advocacy efforts for betterand more meaningful protection of the best interests of separated children.Claire AchmadProject LeadResearch and Advocacy OfficerAdvocacy and Child Rights TeamUNICEF the NetherlandsThe Hague, May 20127

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PART 1: INTRODUCTIONOver time, Dutch government policies addressing separated children1 seekingasylum in the Netherlands have taken an increasingly strict position. This isevident from the way separated children are treated in the asylum process,and through the increased focus of government policy in this area on thereturn of separated children to their country of origin,2 or to a country of transit.3 This trend continued and was expanded under the recently collapsed (asof April 2012) Rutte-coalition government, formed in 2010.4 This raises seriousconcerns for the protection of this specific group of children (referred to inDutch as “AMVs”, but for the purpose of this report will be referred to throughout as separated children) and their wellbeing and rights under applicableand relevant international and regional protection and legal standards.UNICEF the Netherlands is concerned about practices in this context. An areaof particular concern is the policy of returning separated children who are ineligible to remain in the Netherlands (following a failed asylum application) to“reception houses” or “return houses”, located in the country of origin of thechild. These are sometimes simply referred to as “places of shelter”, “shelters”or “orphanages”, but to ensure clarity, this report will use the term “returnhouses”.The Dutch government’s reliance on the use or existence of returnhouses in countries of origin appears to be in response to the obligation theNetherlands is under by virtue of Article 10(2) of the Directive on commonstandards and procedures in Member States for returning illegally stayingthird-country nationals (the Return Directive) to make sure that ‘adequatereception facilities’ are available in the country of return if children are beingreturned to such reception facilities. Whilst the Netherlands provides theprimary example of the use of such measures, other European States have, inrecent times, taken active steps to emulate the Dutch policy, and in a numberof cases are now working alongside the Dutch government in cooperation onspecific projects in this area, under the European Return Platform on Unaccompanied Minors (discussed in Part 5 of this Report). The policy of usingreturn houses as a mechanism to facilitate return to countries of origin raisesa number of important and specific questions and issues regarding the treatment of these children. First and foremost, whether children who are returnedto return houses in countries of origin are being treated in accordance withtheir best interests under the United Nations Convention on the Rights of theChild (CRC) and other international human rights protection measures mustbe considered. It should also be noted at the outset that return to a returnhouse may either be voluntary in nature, that is, the child is willing or agreesto return (but there may be a level of pressure exerted on the child to do so),or forced, whereby the child does not want to return, but is forced to do so.Motivation behind the reportUNICEF the Netherlands has prepared this report in order to highlight theissue of decisions to return separated children to return houses in countriesof origin, which have not been informed by a formal Best Interests Determination (BID). To date, the policy of returning separated children to return houses9

has not received much attention. Indeed, there is little information publicallyavailable that explains the policy and what it involves in practice.5Despite this, the practice of return to return houses in countries of originis already being observed by other European governments who have expressed their desire to pursue similar policies, or have indeed begun to do so,thus seemingly treating the Dutch practice as a good example of action in thisarea (indeed, the Dutch government, as will be discussed later, does take theposition that it is an example of good practice due to a lower inflow of separated children from certain countries of origin).This presents a worrying development and this Report makes a contribution to wider discussion and deeper understanding of the issues at stake. Given current information gaps regarding how the policy of return of separatedchildren to return houses is implemented and works in practice, especially interms of to what extent and how the best interests of the child are taken intoaccount and incorporated in the process, the wider research which has culminated in this Report has sought to fill some of these pre-existing gaps.This Report also complements the work previously undertaken and currently on-going by UNICEF the Netherlands and other relevant stakeholdersin this area, both in the Netherlands and in wider Europe. For example, in2010, UNICEF the Netherlands and Defence for Children International theNetherlands (DCI) established the Advisory Committee on the Monitoring ofUnaccompanied Minors Seeking Asylum Return. This Committee functionsas an informal think-tank on these issues, and to date one of the main topicsof discussion has been the policy of return to return houses without a formalBID, and the decision-making process in relation to separated children. TheCommittee features representation from UNICEF the Netherlands, DCI, theNetherlands Red Cross, International Organisation for Migration the Netherlands (IOM), United Nations High Commissioner for Refugees (UNHCR), theDutch Guardianship and Family Guardianship Organization for refugees andasylum seekers (NIDOS) and the Dutch Ministry of Interior and KingdomRelations. In 2011 an invitation was extended to the Immigration and Naturalisation Service of the Dutch Ministry of the Interior (IND), and officials of thisagency along with those from the Repatriation and Departure Service (DienstTerugkeer en Vertrek or “DT&V”) now attend Committee meetings. This Reportwill be formally presented to the Committee, and will provide further impetusand a basis for greater discussion and actions on the subject, to ensure thata formal BID is incorporated in the decision-making process to protect anduphold the best interests of separated children.Scope and coverage of the ReportThis Report is focussed on the specific issue of the lack of a formal Best Interests Determination procedure for separated children and the practice of return of separated children to return houses in countries of origin. Wider issuesregarding return in general and the larger area of the treatment and rightsof child migrants and asylum seekers fall outside the scope of this particular10

Report and study. However, these are areas that UNICEF the Netherlands isactively engaged with and working on, along with other UNICEF NationalCommittees and relevant partner organisations.Part 2 of the Report focuses on providing relevant background and overview content, in order to locate the particular issue of return of separatedchildren to return houses in countries of origin – and the general lack of aformal BID in the process - in its wider contextual setting.In terms of geographical scope, this report has two main facets. In Part 3,the wider European context is considered, in terms of the issue of separatedchildren in Europe and the European and international legal and policy framework which operates in this area (Part 4). Part 5 focuses on the specific Dutchcontext, in order to better understand the relevant law and policy pertainingto this issue in the Netherlands, and the specific practice as developed andimplemented by the Dutch government and being considered for the futureregarding return of separated children to return houses in countries of origin.The study of policies and practice in other European countries regarding thistopic falls outside the scope of this study, but it is an area in which furtherresearch would be useful in the future. This would be particularly valuable inadding a comparative perspective to assess whether return houses in countries of origin are being more widely utilised or developed as a way to dealwith the issue of separated children seeking asylum in Europe.Part 6 of this Report draws together the discussion appearing throughout.It provides a set of recommendations and for ensuring the best interests ofthe child are incorporated and infused into any Dutch government policyaround the return of separated children to return houses in countries of originas a measure to regulate the situation of separated children. Part 7 discussesthe checklist which appears as Annex B of this Report, which is a reproductionof the checklist prepared by the European Council on Refugees and Exiles andSave the Children entitled “Checklist to Achieve Good Practices When Considering the Return of Children to Third Countries”.The checklist was first published as part of the Comparative Study on practices in the field of returns ofminors in December 2011, undertaken by the European Council on Refugeesand Exiles in strategic partnership with Save the Children (EU Office) for theEuropean Commission Directorate-General Home.6 UNICEF the Netherlandshas translated the checklist into Dutch in order to make it user-ready in theDutch context, for example by government officials including immigrationofficers. This translated version will be made available separately. As part ofthis study, UNICEF the Netherlands has also prepared a one page summarychecklist which also appears in Part 7 of this Report, entitled “UNICEF theNetherlands Checklist on Children and Return”. It condenses the key aspectsof the larger checklist. It is intended that this be used by the same actors asmentioned above, as a quick reference tool when dealing with return decisions related to separated children in the Netherlands.In terms of the aims of this research project, some of the key researchquestions that we set out to explore are as follows, broken down into grou-11

pings under a number of core focus aims:Gain a better statistical picture:--What are the numbers of separated children arriving in the Netherlandsand wider Europe?In what numbers are separated children being returned from the Netherlands and other European countries to return houses in countries oforigin?How many children have stayed in return houses in countries of originafter being returned there from the Netherlands?Gain a better understanding of the policies:--What is the motivation of the Dutch Government behind the use of returnhouses? What are the policy drivers?Is the use of further return houses planned by the Dutch government?Are there any further return houses planned for use by other EuropeanStates in the future? If so, where and when, and what countries areinvolved?Why are other governments motivated to follow the Dutch model?What alternatives are considered as viable options other than return toreturn houses?Gain a better understanding of the process:---What is the decision-making process for return in the Netherlands, andwhat, if any, measures are in-built in the process in order to protect andtake into consideration the best interests of the child? Does an explicit,formal Best Interests Determination (BID) occur, and if so at which stageof the process?Through what process is it determined that the child should return?Through what process is it determined that the child should return to areturn house as the specific solution for that child? What is the assesment undertaken?What role does family tracing play, and what (if any) assessment of thefamily situation takes place?What focus, if any, is placed on finding a durable solution for the child?Are the child’s views taken into account and if so, to what extent?How does the role of the guardian in the Netherlands fit into the process?How important is the role played by the guardian?How does return occur? (i.e. practically, what is the process?)What partner agencies are involved in the process of return?The conditions in and related to return houses:-12How many return houses are currently in use by the Netherlands andwhere are they located?How long do such children remain in return houses and under what conditions?

-Who runs the existing return houses?In general, what are the conditions in the return houses in terms of thefacilities and services offered in the return houses?What are the secondary effects or unintended consequences of the policyof return to return houses in countries of origin?What alternatives exist to the use of return houses?Follow-up post-return--What monitoring of the child’s situation, if any, takes place after their return to a return house?What agencies are involved with the child in the post-return phase?When does the returning country’s involvement with the child cease oncehe or she has been returned? (i.e. is there a period of continued involvement, or does this cease immediately upon return?)Is there a long-term plan for such a returned child, either in terms of family reunification, or reintegration into society with adequate guardianship?How does guardianship in the country of origin connect to or overlap withguardianship established in the host country?MethodologyThe methodology utilised for the research presented in this report has beentwo-fold. During the initial phase, extensive desk research and a significantliterature review was undertaken, utilising a wide array of sources which arecomprehensively detailed in the bibliography at the end of this Report. Thisincluded reference to a situation analysis on forced return undertaken by UNICEF Child Rights Advocacy and Education Section, Private Fundraising andPartnerships (PFP), Geneva.7 The sources canvassed through the literature review are listed in a comprehensive bibliography appearing at the end of thisReport. Given its comprehensive coverage of the topic, the bibliography mayprovide a useful starting point for further studies in this area which may beundertaken by UNICEF national committees or other organisations, agenciesor interested individuals in the future.During the second phase, qualitative research was undertaken by conductinginterviews/discussions with stakeholders in the Netherlands and Europe,identified as having experience or information useful to this research. A seriesof key interview questions were formulated (these appear in full at Annex Ato this report) and used during stakeholder interviews; sometimes discussion during interviews deviated from the precise interview questions, butgenerally a broad range of questions which appear at Annex A was covered.The following stakeholders gave generously of their time and expertise eitherproviding support to this research or sharing information in an interview:-Defence for Children International the Netherlands (DCI)8International Organization for Migration, The Netherlands (IOM)9The Netherlands Red Cross10Direction for Migration Policy, Ministerie van Veiligheid en Justitie (later13

-Ministerie van Binnenlandse Zaken en Koninkrijksrelaties - Ministry of theInterior and Kingdom Relations, The Netherlands -11Repatriation and Departure Service (Dienst Terugkeer en Vertrek) – Ministry of the Interior and Kingdom RelationsUNICEF Country Office AfghanistanUNICEF Country Office AngolaUNICEF Country Office Democratic Republic of the CongoUNICEF GenevaSwiss Foundation of the International Social Service12The Report is therefore a product of these two research streams beingdrawn together, in an effort to provide as clear a picture as possible of theissue of return of separated children to return houses in countries of origin,both in terms of policies and practices.14

Endnotes – Part 11.See Part 2 of this Report for a discussion of who constitutes a separated child.2.The country that the child originates from or that they are a national of.3.A country that a child travels through or arrives in prior to arriving in their final destination.4.See the Kingdom of the Netherlands, Coalition Agreement, (2010) available at (http://www.government.nl/Government/Coalition agreement) last visited 1 August 2011.5.One of the few sources is Mariska Kromhout, “Return of Separated Children: The Impact ofDutch Policies”, International Migration, (2011) 49: 24–47.6.European Council on Refugees and Exiles in strategic partnership with Save the Children(EU Office) for the European Commission Directorate-General Home, Comparative Studyon Practices in the Field of Return of Minors, Final Report, (HOME/2009/RFXX/PR1002),December 2011. The Checklist for supporting Member States when Considering the Returnof Children to Third Countries appears at p.166-189.7.P. Seidel, Situation Analysis: Forced Return of Separated Children to Reception Centres,Child RightsAdvocacy and Education Section, PFP, UNICEF, (2011).8.See http://www.defenceforchildren.nl/.9.See http://www.iom-nederland.nl/.10. See http://www.rodekruis.nl/paginas/home.aspx.11. See http://www.rijksoverheid.nl/ministeries/venj.12. See http://www.ssiss.ch/en/the swiss foundation of the iss 0.15

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PART 2: SEPARATED CHILDREN CONTEXTUAL BACKGROUND AND OVERVIEWThis section provides some wider contextual background regarding asylumseeking separated children, which forms an important backdrop to discuss theissue of return of separated children to return houses in countries of origin.Moreover, it is essential to understand the issue of return of these vulnerablechildren in this context.Child asylum-seekers: Who is an “unaccompanied minor” or“separated child”?As noted above, there are a number of different terms used in relation to achild who is essentially an unaccompanied minor or separated child. However, what does such a status actually entail? That is, who counts as an unaccompanied minor or separated child, in the Netherlands and in Europe, andhow is the term defined? This is important background context to the discussion of return of this group of children to return houses in countries of origin.Under Dutch family Law, a minor is a person who is under 18 years of ageand who is unmarried and who has never been married before. Dutch policy(Vreemdelingencirculaire 2000) considers minors to be unaccompanied ifthey are not accompanied by (one of) their adult parents or their guardian appointed abroad when entering the Netherlands, and if none of their adult parents or previously appointed guardian(s) resides in the Netherlands.13 DutchLaw considers minors to be unaccompanied if they are not accompanied bytheir adult parents.14At the European Union level, a definition of unaccompanied minors wasadopted by the European Council in 2001, which defines unaccompaniedminors (separated children) as “Third country national or stateless personsbelow the age of 18, who arrive on the territory of the Member States unaccompanied by an adult responsible for them whether by law or custom, andfor as long as they are not effectively taken into the care of such a person, orminors who are left unaccompanied after they have entered the territory ofthe Member States.”15 This definition is endorsed and applied in the EU ActionPlan on Unaccompanied Minors (2010-2014).16The Statement of Good Practice of the Separated Children in EuropeProgramme provides a further useful definition worth bearing in mind. It isbroader than the European Council definition, and uses the term “separatedchildren”. It defines separated children as “under 18 years of age, outside theircountry of origin and separated from both parents, or their previous legal, orcustomary primary caregiver.”17Finally, the Committee on the Rights of the Child, in its General Commentno. 6 defines both the terms “unaccompanied children (or unaccompaniedminors)” and “separated children” as distinct from each other. Unaccompanied children are “children, as defined by Article 1 of the Convention, who17

have been separated from both parents and other relatives and are not beingcared for by an adult who, by law or custom, is responsible for doing so.”18 Onthe other hand, separated children are “children, as defined in article 1 of theConvention, who have been separated from both parents, or from their previous legal or customary caregiver, but not necessarily from other relatives.These may, therefore, include children accompanied by other adult familymembers.”19Understanding separated children seeking asylum as a groupThe Rapporteur for the Council of Europe’s Parliamentary Assembly Committee on Migration, Refugees and Population recently described unaccompanied minors (separated children) as:“a multifaceted and diverse group: they can be asylum seekers who have fledtheir countries of origin because of armed conflicts or persecution; often toavoid being forcefully recruited to militias or other armed groups; they can besent by their families to Europe in search of better living conditions; they maybe runaways; those who arrive in Europe to be reunited with their family butwho do not fall under the official family reunification programmes; or childrenwho are victims of trafficking. They often arrive in Europe for mixed motivations and/or move from one category to another.”20Given the nature of this group of children, specific issues and challengescan and do arise which are particular to the circumstances such children findthemselves in. In the view of UNICEF the Netherlands, some of the most pressing are: Risk of child trafficking;Unsafe migration, risks of exploitation and abuse;Absence of protection and adequate care;Limited guidance and support in asylum procedures, and perhaps unsatisfactory guardianship arrangements;Children are not heard and their individual wishes are not taken into account in decision-making;The best interests of the individual child are not adequately considered;Separation from family and kinship groups; andA durable solution for the individual child might not be considered.What these challenges and issues facing separated children highlight is theapparent gap between the commitments of national governments to the principles and obligations under international law and international agreementsthat they have signed up to, and the reality of practice when it comes todealing with separated children as a group. Often, separated children are approached as a group primarily as migrants, whereas first and foremost, theyshould be treated as children. As Hernandez and Touzenis assert:“This disparity between the principles agreed to by governments and thereality of individual lives underscores the vulnerability of migrants in terms of18

dignity and human rights. A major problem for children is that they are considered as migrants before they are considered as children – this automaticallylowers their legal protection, as international standards regarding children aremuch more elaborated and more widely ratified than those regarding migrants.”21In terms of the profile of the group of separated children seeking asylumin Europe, a few observations are helpful. It is difficult to establish a clear statistical picture regarding the numbers of separated children seeking asylum inEurope. This is because, as the EU Action Plan on Unaccompanied Minors notes, “Statistics on unaccompanied minors are not widespread or consistent.”22Moreover, the European Fundamental Rights Agency (FRA) comments on thedifficulty of developing accurate statistics in this area, noting for example that“a failure to recognise children as separated at the time of arrival can leadto under-reporting; conversely, children recorded upon arrival as separatedmay subsequently be reunited with their parents, which may lead to overreporting. Furthermore, difficulties in assessing age, when in doubt, add tothe problem of compiling accurate figures.23 A further particular difficulty incompiling accurate statistics on unaccompanied minors also comes from thefact that not all separated children lodge a claim for asylum, and therefore areoften not captured in statistics.24Most recent official Eurostat asylum statistics show that in 2010 in the 27European Union Member States there were in total 71,350 asylum applicantswho were minors.25 Of this number, 10,700 were unaccompanied minors(therefore a child under 18 years of age arriving unaccompanied by an adultresponsible for them or a child who is left unaccompanied after having entered the territory of an EU member state).26 Frontex27 states that “The majorityof unaccompanied minors seem to be young males aged between 16 and 17”,but that in some groups coming from specific countries, girls may also behighly represented and may be under under 16 years old.28In terms of where the main flows of separated children seeking asylum inEurope originate, Frontex notes the most prominent nationalities of separatedchildren in 2009 were Afghan, Somali, Iraqi, Nigerian and Eritrean.29 Howeverwithin these groups, different trends are evident, such as a sharp rise in thenumbers of Afghan and Somali nationals,30 with both Afghanistan and Somalia singled out by Frontex as being countries which will remain hotspots in themid-

rently on-going by UNICEF the Netherlands and other relevant stakeholders in this area, both in the Netherlands and in wider Europe. For example, in 2010, UNICEF the Netherlands and Defence for Children International the Netherlands (DCI) established the Advisory Committee on the