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An International Human Right to Free Legal Counsel for Unaccompanied and Separated Children in U.S. Immigration Proceedings

III. POTENTIAL ARGUMENTS

This section identifies potential arguments, which could be utilized by U.S.-based advocates to promote a right to free legal counsel for UASC navigating immigration proceedings in the United States. The arguments are intended to provide a broad framework within which advocacy strategies and campaigns promoting a right to free legal counsel can be designed. Once advocates identify the most compelling and promising arguments, further research on the merits of these arguments will be undertaken.

Within this context, the following potential arguments are discussed:

§  Respect for the best interests of the child requires procedural safeguards for UASC, which includes the provision of free legal counsel in immigration proceedings;

§  Children who are temporarily or permanently deprived of their family environment have a right to free legal counsel;

§  Fairness/access to justice for UASC necessarily requires free legal counsel;

§  Detained UASC have a right to free legal counsel; and

§  UASC seeking asylum have a right to free legal counsel. 

A. The Best Interests of the Child Support the Right to Free Legal Counsel

An overarching argument that is open to U.S.-based advocates is one based on respect for the best interests of the child.

As previously discussed, the non-discrimination principle expressed in Article 2 of the CRC imposes an obligation on States Parties to respect and ensure the rights set forth in the Convention to each child within its jurisdiction without discrimination of any kind, including on the basis of the child’s status as a foreign national. One such right, as identified in Article 3 of the CRC, requires that the best interests of the child be a primary consideration in all actions concerning children. Accordingly, the combined application of these two articles requires that the best interests of the child be a primary consideration in all actions concerning UASC who are within the jurisdiction of the United States.

According to the Committee, in order to respect the best interests principle, both substantive and procedural safeguards must be implemented.[1] Notably, the Committee highlights that in circumstances where UASC are referred to administrative, judicial or asylum proceedings, a key procedural safeguard includes the provision of a legal representative.[2] Arguably, this wording suggests that a mere right or access to legal representation for UASC is inadequate to ensure respect for their best interests when they are navigating civil proceedings; rather, in such circumstances, there is an obligation on States to provide children with a legal representative in order to ensure respect for their best interests. This argument can be buttressed by highlighting the heightened vulnerability of UASC as acknowledged by ExCom,[3] and the Committee.[4]

If advocates decide to campaign for a right to free legal counsel on the basis of respect for the best interests of the child, additional research on its application to procedural safeguards should be undertaken. This should include a review of relevant literature, a review of regional and national jurisprudence (as the best interests concept is used in many domestic settings) as well as an exhaustive review of the Committee’s recommendations to State Parties.

 

B. Children Temporarily or Permanently Deprived of their Family Environment have a Right o Free Legal Counsel

Another overarching argument open to U.S.-based advocates is one based on Article 20(1) of the CRC. Article 20(1) recognizes the heightened vulnerability of children who do not have the protection of a family environment; it provides that any child who is “temporarily or permanently deprived of his or her family environment… shall be entitled to special protection and assistance provided by the State” (emphasis added). As children who are temporarily or permanently deprived of their family environment, UASC fall within the protection afforded by this article.[5]

While special protection and assistance in not defined in the CRC, in paragraph 33 of GC6, the Committee in interpreting Article 20(1)[6] provides that “States are required to create the underlying legal framework and to take necessary measures to secure proper representation of an unaccompanied or separated child’s best interests.” In this context, the Committee subsequently states in paragraph 36 that “[i]n cases where children are involved in asylum procedures or administrative or judicial proceedings, they should, in addition to the appointment of a guardian, be provided with legal representation.”

Based on Article 20(1) and the Committee’s interpretation of this article in paragraphs 33 and 36 of GC6, advocates can argue that UASC are entitled to special protection and assistance from the State, and that this concept of special protection and assistance encompasses the provision of free legal representation for UASC during immigration proceedings. If advocates decide to campaign for a right to free legal counsel on this basis, additional research should be undertaken on the interpretation of “special protection and assistance” as well as “protection and assistance”. This should include a review of relevant literature, a review of regional and national jurisprudence as well as an exhaustive review the Committee’s recommendations to State Parties.

 

C. Fairness/Access to Justice Requires Free Legal Counsel for UASC

A complementary argument to those highlighted in the preceding two subsections is one based on fairness/access to justice.  As discussed above, the CRC explicitly provides that children temporarily or permanently deprived of their family environment are entitled to “special protection and assistance provided by the State.”[7] As regards the subset of asylum seeking children, the CRC also requires States to take appropriate measures to ensure that such children “receive appropriate protection” in the enjoyment of rights set forth in the Convention and other international human rights or humanitarian instruments to which they are a party.[8] Regarding the content of special protection, the Committee in GC6 states that it encompasses the provision of legal representation, in addition to the provision of guardianship for UASC, where they are involved in administrative, judicial or asylum procedures.[9] Similarly, in elaborating the content of appropriate protection for asylum seeking children, the Committee states that UASC should “in all cases, be given access, free of charge, to a qualified legal representative”.[10] The Committee further states that the refugee status applications of UASC must be given priority and “every effort should be made to render a decision promptly and fairly.”[11] (emphasis added)

Articles 20(1) and 22(1) and the Committee’s interpretation of these articles in GC6 together arguably reflect an attempt to incorporate notions of fairness and access to justice by accommodating the specific protection needs of children temporarily or permanently deprived of their family environment and UASC seeking asylum. The Committee’s interpretation suggests that where such children are navigating asylum, administrative or judicial procedures, mere guardianship is inadequate to comply with the requirement to provide appropriate or special protection. Rather, the provision of legal representation is a necessary component to ensuring that the rights of such children are adequately protected. In this regard, appropriate and special protection seems to reflect an attempt to level the playing field and ensure that UASC who have specific protection needs and who by nature of their age do not have the capacity to represent themselves have a fair opportunity to defend and enjoy their rights. [12] 

In a similar vein to the Committee’s guidance, UNHCR’s commentary also correlates the provision of legal representation with notions of fairness. In its Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards, including legal representation, to ensure that fair refugee status determination decisions are reached with respect to their claims.[13]

In GC6, the Committee also states that “[t]he ultimate aim in addressing the needs of unaccompanied and separated children is to identify a durable solution that addresses all their protection needs and takes into account their view…”[14] In this regard, a legitimate argument exists to the effect that fair asylum, judicial and administrative proceedings are necessary to identify durable solutions that, address all the protection needs of UASC, are in their best interests and protects their legal rights such as those relating to non-refoulement.

Within this framework, and in light of the acute vulnerability of UASC, advocates can argue that in order to ensure fairness/access to justice for UASC, they should be provided with free legal representation in immigration proceedings.  Fairness requires that individuals who do not have the capacity to protect their legal rights be provided with the necessary procedural safeguards, including free legal representation. The Committee’s interpretation of special and appropriate protection in GC6 for children temporarily deprived of their family environment and asylum seeking children, respectively, supports this position.

If advocates decide to campaign for a right to free legal counsel on the basis of an argument related to fairness/access to justice, additional research on the content of “special protection” and “appropriate protection” should be undertaken. Beyond the committee’s interpretation of those terms in GC6, it may also prove valuable to exhaustively review the Committee’s recommendations to State Parties in individual State Party reports, and to review relevant literature as well as regional and national jurisprudence.

 

D. Detained UASC have a Right to Free Counsel

The three arguments discussed in the preceding sections could assist in providing a right to free legal counsel for all UASC navigating immigration proceedings in the United States. A narrower argument that is also open to advocates concerns the promotion of a right to free counsel for detained UASC.

In this regard, the explicit reference to prompt legal assistance for detained children in Article 37(d) when combined with the Committee’s interpretation that Article 37(d) relates to prompt and free legal assistance could be utilized by advocates to campaign for a right to free legal assistance for all UASC in U.S. custody.

Under this argument, advocates should utilize, the Committee’s liberal interpretation of deprivation of liberty, which indicates “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children… placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[15] This interpretation arguably includes not only children in DHS and DHS-contracted detention facilities, but also the much larger number of UASC who have been placed in facilities contracted by the Office of Refugee Resettlement/Health and Human Services for the purposes of care and protection.

In light of the near universal ratification of the CRC, a campaign for a right to free legal counsel for detained UASC may benefit from an examination of State practice with regard to Article 37(d). A useful starting point for this analysis will include State Party reports submitted to the Committee, followed by a review of national law and policies. Such an examination may highlight the extent to which there is scope to argue that the requirements under Article 37(d), particularly as interpreted by the Committee, have become customary international law. In this regard, attention should be paid to European countries, which have experienced a pronounced increase in the migration of UASC in recent times.

After determining which States have implemented laws consistent with Article 37(d) of the CRC, it may also be valuable to undertake background research on efforts leading to the implementation of the relevant national laws in those States. This may highlight advocacy and campaign lessons for U.S.-based advocates. In this regard, a useful starting point would be Sweden, which requires public counsel to be appointed for children held in detention if they do not have a custodian in the country.[16]

 

E. UASC Seeking Asylum have a Right to Free Counsel

Finally, another more limited argument open to advocates relates to a right to free legal counsel for UASC seeking asylum in the United States.

As discussed earlier, in addition to singling out children who are temporarily and permanently deprived of their family environment, the CRC also imposes obligations on States Parties to ensure that asylum-seeking children receive appropriate protection.[17] Within this context, the Committee has repeatedly elaborated that appropriate protection measures include the provision of free, qualified legal representation where UASC are navigating asylum procedures.[18] The Committee has also noted that the legal representative should be present at all interviews with the child.[19]

UNHCR’s guidance confirms that the principles of non-discrimination and best interests of the child should inform procedural aspects of a determination of a child’s refugee status.[20] In this regard, UNHCR’s commentary highlights the importance of qualified legal representation for children who are principal applicants in asylum procedures as a minimum procedural safeguard to ensure fairness in refugee status determinations.[21]

An argument on the right to free legal counsel based on Article 22(1) of the CRC as well as the commentary and guidance of the Committee and UNHCR should highlight the importance of legal representation for UASC in U.S. immigration proceedings. For example, empirical research has highlighted the critical importance of legal representation for success in U.S. asylum proceedings.[22] Additionally, an UASC’s chance of gaining asylum could be impacted by the risk that he/she may not be able to clearly articulate subjective fear and relevant experiences,[23] and where adjudicators are unfamiliar with forms and manifestations of persecution experienced by children (i.e. under-age recruitment, trafficking, sexual exploitation, female genital mutilation, forced marriage and persecution of kin) and fail to handle children’s claims in an age-sensitive manner.[24]

If attempts are made to advocate for a right to free legal counsel for UASC seeking asylum in the United States, it may be valuable to keep abreast of developments in Europe regarding the proposed recast (a consolidated legislative enactment, which incorporates existing and additional amendments)[25] of the Council Directive on Minimum Standard on Procedures in Members States for Granting and Withdrawing Refugee Status.[26] In its proposed Article 21(4), the recast states that subject to limited exceptions, “unaccompanied minors shall be granted free legal assistance with respect to all procedures provided for in this directive.”[27] In light of the magnitude of migration of UASC into Europe, if and when this recast becomes operative,[28] it arguably has the capacity to significantly influence consensus in State practice, which in turn may be of persuasive value in influencing reform in the United States.

At present, it should be noted that some European countries provide legal representation to UASC in asylum proceedings in certain circumstances. For example, in Denmark, there are strict rules for unaccompanied minors in appeals proceedings.  In addition to the general right to have counsel appointed by the Refugee Appeals Board, Denmark provides all unaccompanied minors with counsel in cases where the Danish Immigration Service does not deem the case appropriate for a hearing in front of the Refugee Appeals Board.[29]  “If the Danish Immigration Service submits a case concerning a residence permit under section 7 for a child falling within subsection (1) to the Danish Refugee Council... the Danish Immigration Service shall at the same time assign counsel to the child unless the child has itself retained one.”[30]  A Section 7 residence permit is essentially the grounds to claim refugee status, subsection 1 outlines the definition of an unaccompanied minor, and the Danish Refugee Council reporting only occurs when immigration officials deem the case unsuitable for the Refugee Appeals Board.  So, in addition to being represented in front of the Appeals Board, unaccompanied minors have a right to legal counsel even if their case is denied a hearing in front of that board.[31]

Other countries also have general requirements regarding free legal counsel or legal aid that often cover UASC in asylum proceedings.[32] For example, in the United Kingdom, means-tested, publicly-funded legal aid is available to asylum seekers who qualify.[33] Outside Europe, both New Zealand and Canada have legal aid schemes which cover UASC. In New Zealand, for example, all refugee status determinations, including all applicable appeals, are eligible for legal aid under part 2, section 7, of the Legal Services Act 2000.[34] Guideline 3 on Child Refugee Claimants issued by the Canadian Immigration and Refugee Board, provides that the Immigration Act (now the Immigration and Refugee Protection Act) requires the designation of a representative for all child claimants.[35] One duty imposed on designated representatives relates to the retention of counsel,[36] and federally-funded legal aid is available to retain counsel.[37]

If advocates decide to campaign for a right to free legal counsel for UASC seeking asylum, given the shared common law heritage between the United Kingdom, Canada, New Zealand and the United States, consideration should be given to undertaking additional research on the provision of legal aid to UASC in asylum proceedings in these countries to determine whether lessons from these countries may lend assistance to advocacy in the United States. Additionally, case law research should be undertaken in applicable countries to determine whether national and regional courts have made persuasive pronouncements regarding the importance of counsel for children and particularly UASC in asylum proceedings.

 

 


[1] Committee on the Rights of the Child, General Comment No. 6, paragraph 21.

[2] Id. at 21 and 36.

[3] See Executive Committee, Conclusion on Children at Risk, at paragraph (c)(ii) (discussing individual risk factors)

[4] See Committee on the Rights of the Child, General Comment No. 6, at paragraph 3 (stating “The issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of such children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention. They are often discriminated against and denied access to food, shelter, housing, health services and education. Unaccompanied and separated girls are at particular risk of gender-based violence, including domestic violence. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials. In other cases they are admitted but are denied access to asylum procedures or their asylum claims are not handled in an age and gender-sensitive manner. Some countries prohibit separated children who are recognized as refugees from applying for family reunification; others permit reunification but impose conditions so restrictive as to make it virtually impossible to achieve. Many such children are granted only temporary status, which ends when they turn 18, and there are few effective return programmes.”)

[5] See Committee on the Rights of the Child, General Comment No. 6, at paragraph 39.

[6] Article 20(1) is interpreted together with Article 18(2). Article 18(2) of the CRC states that “[f]or the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.

[7] Convention on the Rights of the Child, at Article 20(1).

[8] Id. at Article 22(1).

[9] Committee on the Rights of the Child, General Comment 6, at paragraph 36.

[10] Id. at, paragraph 69.

[11] Id. at, paragraph 72.

[12] Despite the primarily implicit nature of this argument, in paragraph 72 of its General Comment No. 6, the Committee explicitly refers to fairness in refugee status determination procedures for UASC. Additionally, the Committee’s reasons for issuing General Comment No. 6 were at least partially motivated by gaps in protection experienced by UASC. See Committee on the Rights of the Child, General Comment No. 6, paragraph 3, which states that the “issuing of the general comment is further motivated by the Committee’s identification of a number of protection gaps in the treatment of [UASC] children, including the following: unaccompanied and separated children face greater risks of, inter alia, sexual exploitation and abuse, military recruitment, child labour (including for their foster families) and detention…. In some situations, such children have no access to proper and appropriate identification, registration, age assessment, documentation, family tracing, guardianship systems or legal advice. In many countries, unaccompanied and separated children are routinely denied entry to or detained by border or immigration officials….” See also, Committee on the Rights of the Child, General Comment No. 6, at paragraph 1. 

[13] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraphs 65 and 69.

[14] Committee on the Rights of the Child, General Comment No. 6, at paragraph 79.

[15] Report of the Committee on the Rights of the Child, Sixty-third Session, Supp. 41,  at 55, footnote a.

[16] Aliens Act, Ch. 18, Sec. 1, available at http://www.sweden.gov.se/content/1/c6/06/61/22/bfb61014.pdf.

[17] Convention on the Rights of the Child, at Article 22(1).

[18] Committee on the Rights of the Child, General Comment No. 6, at paragraphs 21, 36, 68-69.

[19] Id. at paragraph 72.

[20] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 5.

[21] Id. at paragraphs 65 and 69.

[22] See e.g. Andrew I. Schoenholtz & Jonathan Jacobs, The State of Asylum Representation: Ideas for Change, 16 GEO. IMMIGR. L.J. 739, 742 (2002); Jaya Ramji-Nogales, Andrew I Schoenholtz & Phillip Schrag, Refugee Roulette: Disparities in Asylum Adjudication  (NYU Press, 2009).

[23] See generally, Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010); The Committee on the Rights of the Child, General Comment No. 6, at paragraph 66; See e.g. United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 11; United Nations High Commissioner for Refugees, Guidelines on Unaccompanied Children Seeking Asylum, at paragraph 8.6.

[24] See generally Executive Committee, Conclusion on Children at Risk; United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims; The Committee on the Rights of the Child, General Comment No. 6, at paragraphs 3, 59 and 74.

[25] Recasting is like codification in that is brings together in a single new legislative act all the amendments made to it. The new act passes through the full legislative process and repeals all the acts being recast. But unlike codification, recasting involves new substantive changes, as amendments are made to the original act during preparation of the recast text. See http://ec.europa.eu/dgs/legal_service/recasting_en.htm (last accessed December 8, 2010)

[26] See Amendment proposed by 52009PC0554 Repeal, at http://eur-lex.europa.eu/Notice.do?val=418705:cs&lang=en&list=418705:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=Granting%20and%20Withdrawing%20Refugee%20Status~ (last accessed December 8, 2010)

[27]See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52009PC0554:EN:HTML (last accessed December 8, 2010).

[28] As a consequence of the entry into force of the Treaty of Lisbon on 1 December 2009, the European Parliament and the European Council will have to decide on proposals presented by the Commission (such as the recast proposal on granting and withdrawing asylum status discussed above), on the basis of Treaties, before that date and that are at different stages of the legislative process. As of August 2010, the recast proposal is awaiting a parliamentary decisions/first parliamentary reading; See http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2009/0165. This link will continue to be updated as the recast moves through the relevant legislative process.

[29] Aliens (Consolidation Act) §56a, available at http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf.

[30] Id.

[31] Id.

[32] Sweden typically provides counsel for the most serious immigration proceedings. Norway has a general right to legal counsel under Immigration Act § 34; Denmark, under §55 of Aliens Consolidation Act (available at http://www.nyidanmark.dk/NR/rdonlyres/C2A9678D-73B3-41B0-A076-67C6660E482B/0/alens_consolidation_act_english.pdf) provides counsel at the Refugee Appeals Board, unless it is not reasonable to do so; Finland, under the Legal Aid Act (available at http://www.finlex.fi/en/laki/kaannokset/2002/en20020257.pdf) provides a right to counsel in most administrative proceedings, and Section 9 of Aliens Act (available at http://www.finlex.fi/en/laki/kaannokset/2004/en20040301.pdf) requires that legal aid be provided under the requirements of the Legal Aid Act.

[33] See e.g., Community Legal Advice, Asylum seekers and refugees, http://www.communitylegaladvice.org.uk/gateway/immigration.jsp?rid=5665 (last visited June 15, 2010). Check to see if available on UK Border Agency website, such as Home Office, UK Border Agency, Rights and Responsibilities http://www.ukba.homeoffice.gov.uk/asylum/rights/

[34] See http://www.legislation.govt.nz/act/public/2000/0042/latest/DLM71807.html (last visited June 15, 2010).

[35] See Immigration and Refugee Board of Canada, Guideline 3: Child Refugee Claimants Procedural and Evidentiary Issues, available at http://www.irb.gc.ca/eng/brdcom/references/pol/guidir/pages/ChiEnf.aspx (last accessed December 8, 2010).

[36] Id.

[37] Correspondence with practitioners acting as designated representatives for UASC in Canada  (on file).