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

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.[1] 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.[2] The Committee has also noted that the legal representative should be present at all interviews with the child.[3]

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.[4] 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.[5]

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.[6] 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,[7] 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.[8]

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)[9] of the Council Directive on Minimum Standard on Procedures in Members States for Granting and Withdrawing Refugee Status.[10] 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.”[11] In light of the magnitude of migration of UASC into Europe, if and when this recast becomes operative,[12] 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.[13]  “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.”[14]  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.[15]

Other countries also have general requirements regarding free legal counsel or legal aid that often cover UASC in asylum proceedings.[16] For example, in the United Kingdom, means-tested, publicly-funded legal aid is available to asylum seekers who qualify.[17] 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.[18] 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.[19] One duty imposed on designated representatives relates to the retention of counsel,[20] and federally-funded legal aid is available to retain counsel.[21]

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

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

[3] Id. at paragraph 72.

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

[5] Id. at paragraphs 65 and 69.

[6] 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).

[7] 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.

[8] 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.

[9] 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)

[10] 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)

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

[12] 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.

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

[14] Id.

[15] Id.

[16] 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.

[17] 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/

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

[19] 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).

[20] Id.

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