CLINIC

 

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

B. CHILDREN TEMPORARILY OR PERMANENTLY DEPRIVED OF THEIR FAMILY ENVIRONMENT HAVE A RIGHT TO 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.[1]

While special protection and assistance in not defined in the CRC, in paragraph 33 of GC6, the Committee in interpreting Article 20(1)[2] 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.

 

 


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

[2] 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.