CLINIC

 

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

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.”[1] 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.[2] 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.[3] 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”.[4] 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.”[5] (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. [6] 

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.[7]

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…”[8] 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.

 

 


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

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

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

[4] Id. at, paragraph 69.

[5] Id. at, paragraph 72.

[6] 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. 

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

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