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

II.  Main Sources of International Law and Commentary

A.  Introduction

The international materials discussed in this section include:

§  The Convention on the Rights of the Child (1989);

§  The Committee on the Rights of the Child: General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (2005);

§  The United Nations High Commissioner for Refugees’ Executive Committee Conclusion No. 107 on Children at Risk (2007);

§  The United Nations High Commissioner for Refugees’ Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (2009); and

§  The United Nations High Commissioner for Refugees’ Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997).

Where relevant, references are also made to regional human rights law.

B.  The Convention on the Rights of the child and the United Nations High Commisioner for Refugees

As a preliminary matter, a brief introduction to the Convention on the Rights of the Child, the Committee on the Rights of the Child, the United Nations High Commissioner for Refugees and the Executive Committee of the United Nations High Commissioner for Refugees is provided.  This treaty and bodies speak to the rights of UASC.

 

1. The Convention on the Rights of the Child

The Convention on the Rights of the Child (“CRC” or “Convention”) is the paramount international human rights treaty dedicated to the rights of children. Every nation except two has ratified the CRC; the United States and Somalia have, however, signed the treaty,[1] and as a consequence, are obliged under international law to act in a manner consistent with the treaty’s object and purpose.[2]  In the very least, advocates can use the CRC for its persuasive value before policymakers and judges in the United States.  If and when the Unites States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the Unites States.  That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.

 

2. The Committee on the Rights of the Child and General Comment 6

The Committee on the Rights of the Child (the “Committee”) is a body of independent experts mandated pursuant to Article 43 of the CRC to measure State Party compliance and progress with obligations under the CRC. Progress and compliance is generally measured through a reporting mechanism intended to engender dialogue between the Committee and State Parties.[3] In an attempt to improve implementation of the CRC, the Committee publishes interpretative guidance in the form of ‘General Comments’ to enhance State understanding of the CRC’s provisions and to highlight thematic concerns. The Committee’s General Comments are based on the experience gained through examination of State Party reports. While not strictly binding on States Parties, the Committee’s pronouncements are regarded as authoritative.[4]

The Committee’s General Comment No. 6 on the Treatment of Unaccompanied and Separated Children Outside Their Country of Origin (“GC6”) is of particular relevance to the subject of this memorandum. This comment was issued in order to “draw attention to the particularly vulnerable situation of unaccompanied and separated children…”[5] and to “provide guidance on the protection, care and proper treatment of unaccompanied and separated children based on the entire legal framework provided by the Convention on the Rights of the Child…”[6]

 

3. The United Nations High Commissioner for Refugees and its Executive Committee

The United Nations High Commissioner for Refugees (“UNHCR”), a body established by the United Nations General Assembly, is mandated to lead and coordinate international action to protect refugees and resolve refugee problems worldwide. To this end, its primary purpose is to safeguard the rights of refugees. Pursuant to its mandate, UNHCR issues guidelines on various facets of international protection of asylum seekers and refugees. The Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (“Guidelines on Child Asylum Claims”) are intended to provide legal interpretative guidance for, inter alia, governments, legal practitioners, decision makers and the judiciary on carrying out asylum determinations.[7] The Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (“Guidelines on Unaccompanied Children Seeking Asylum”) are intended to, inter alia, promote awareness of the special needs of unaccompanied children and the rights reflected in the CRC.[8] UNHCR’s guidelines have been regarded to be of persuasive value in U.S. case law.[9] 

The Executive Committee (“ExCom”) of the High Commissioner’s Programme,[10] the governing body of the UNHCR adopts conclusions on international protection, which contribute to the development of international refugee law. ExCom has adopted Conclusion No. 107 on Children at Risk (“Conclusion on Children at Risk”) which is aimed at strengthening the protection of children at risk.[11] Factors that put children in situations of heightened risk include individual risk factors such as being unaccompanied or separated,[12] and wider environmental risk factors such as lack of access to child-sensitive asylum procedures.[13] The Conclusion on Children at Risk provides operational guidance to States, UNHCR, and other relevant agencies and partners on the protection of children affected by forced displacement and statelessness and outlines the main aspects of a comprehensive child protection system.[14]

C.  Non-discrimination, Best Interests of the Child, and Special Protection and Assistance

This subsection introduces the principles of non-discrimination and best interests of the child. These represent two of four fundamental principles which underlie the Convention.[15] This subsection also examines Article 20(1) of the CRC, which states that children temporarily or permanently deprived of their family environment are entitled to special protection and assistance provided by the State. The manner in which these principles may prove valuable for attempts to advocate for a right to free legal counsel for all UASC in immigration proceedings are discussed in section III.

 

1. Non-discrimination

Pursuant to Article 2 of the CRC, States Parties to the Convention are required to respect and ensure the rights set forth in the Convention to each child within its jurisdiction and subject to its territory without discrimination of any kind, including on the basis of the child’s status.[16]

Article 2(1): States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.

In its interpretative guidance, the Committee notes that the principle of non-discrimination applies in all dealings with UASC and does not prevent, and may indeed call for, affirmative action and differentiation on the basis of protection needs.

GC6: Paragraph 18: The principle of non-discrimination, in all its facets, applies in respect to all dealings with separated and unaccompanied children. In particular, it prohibits any discrimination on the basis of the status of a child being unaccompanied or separated, or as being a refugee, asylum-seeker or migrant. This principle, when properly understood, does not prevent, but may indeed call for, differentiation on the basis of different protection needs such as those deriving from age and/or gender….[17]

A plethora of other international instruments including the Universal Declaration of Human Rights,[18] the United Nations Charter[19] and the International Covenant on Civil and Political Rights[20] also articulate the prohibition against discrimination.[21] Similarly, the notion that States may be required to undertake affirmative action in order to protect the rights of various vulnerable populations is also common to other international treaties.[22]

Many regional treaties also articulate the prohibition against discrimination including, most notably, the American Convention on Human Rights.[23] While the United States has signed this treaty, it has yet to proceed with ratification.[24]

 

2. Best Interests of the Child

Similar to Article 2 on non-discrimination, Article 3(1) of the Convention, sets out a pivotal standard, which underpins all other rights articulated in the Convention. Article 3(1) provides that in all actions concerning children, the best interests of the child shall be a primary consideration.

Article 3(1): In all actions concerning children, whether undertaken by a public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

 According to the Committee, as regards displaced children, the principle of the best interests of the child must be respected throughout the displacement cycle with the ultimate aim that any durable solution addresses the protection needs of UASC.

GC6: Paragraph 19: …In the case of a displaced child, the principle must be respected during all stages of the displacement cycle….

GC6: Paragraph 79: The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs….

The CRC does not provide a definition of best interests. The Committee states that the concept does require a clear and comprehensive assessment of the child’s particular vulnerabilities and protection needs and that in order to conduct this initial assessment a child should be given access to the State’s territory.[25]

GC6: Paragraph 20: A determination of what is in the best interests of the child requires a clear and comprehensive assessment of the child’s identity, including her or his nationality, upbringing, ethnic, cultural and linguistic background, particular vulnerabilities and protection needs. Consequently, allowing the child access to territory is a prerequisite to this initial assessment process. The assessment process should be carried out in a friendly and safe atmosphere by qualified professionals who are trained in age and gender-sensitive interviewing techniques.

 While it is clear that the best interests concept is indeterminate, the Committee also notes that key procedural safeguards must be implemented in order to ensure respect for the best interests of an UASC; this includes the provision of a legal representative in addition to a guardian where a child is referred to asylum, administrative or judicial proceedings.

GC6 Paragraph 21: …[T]he appointment of a competent guardian as expeditiously as possible serves as a key procedural safeguard to ensure respect for the best interests of an unaccompanied and separated child. Therefore such a child should only be referred to asylum or other procedures after the appointment of a guardian. In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian.

 Including the reference in Article 3, the best interests standard is invoked eight times in the Convention in seven articles.[26] Regional instruments also endorse the best interests principle as a primary consideration in actions concerning children[27] while the Conclusion on Children at Risk recognizes that strategies and actions under it should be underpinned by, inter alia, the best interests principle.[28] The standard is also a familiar concept in U.S. family law.

 

3. Special Protection and Assistance

Article 20(1) of the CRC, addresses the situation of children who are temporarily or permanently deprived of their family environment and states that such children are entitled to special protection and assistance provided by the State. In this respect, UASC would be entitled to the protection afforded under this article.

Article 20(1): A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

The Committee clearly states that UASC fall within the protection afforded under Article 20(1).

GC6: Paragraph 39: Unaccompanied or separated children are children temporarily or permanently deprived of their family environment and, as such, are beneficiaries of States’ obligations under article 20 of the Convention and shall be entitled to special protection and assistance provided by the relevant State.

 In interpreting Articles 18(2) and 20(1), the Committee notes that States are required to undertake necessary measures to secure the proper representation of UASC’s best interests. According to the Committee, necessary measures include the provision of legal representation where children are involved in asylum, administrative or judicial proceedings. 

GC6: Paragraph 33: 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.…

GC6: Paragraph 36: In 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.

D.  Free Legal Counsel for Children Deprived of Liberty

In Article 37(d), the CRC explicitly addresses the right to counsel for all children, including UASC, who are deprived of liberty.

Article 37(d): Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

 The Committee elaborates that the right to “prompt access to legal and other appropriate assistance” is a right to prompt and free access, and that children should have the opportunity to make regular contact with, and receive visits from, legal counsel.

GC6: Paragraph 63: …In order to effectively secure the rights provided by article 37(d) of the Convention, unaccompanied or separated children deprived of their liberty shall be provided with prompt and free access to legal and other appropriate assistance, including the assignment of a legal representative.

GC6: Paragraph 63: …Children should have the opportunity to make regular contact and receive visits from… legal counsel and their guardian….

 As to the definition of “deprivation of liberty” the Committee notes “that the rights of a child deprived of his/her liberty, as recognized in the Convention, apply with respect to children in conflict with the law, and to children placed in institutions for the purposes of care, protection or treatment, including… child protection or immigration institutions.”[29]

E.  Free Legal Counsel for Asylum Seeking Children

The CRC also imposes obligations on States Parties with regards to asylum seeking children. In particular, the CRC requires States to ensure that such children receive appropriate protection in the enjoyment of applicable rights set forth in the Convention and in other international human rights and humanitarian instruments to which the State is a party.

Article 22(1): States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

 The Committee elaborates, noting that where UASC are referred to asylum procedures or other administrative or judicial proceedings, appropriate measures include providing such children with a legal representative. According to the Committee, refugee status applications of UASC seeking asylum must be given priority and should be determined promptly and fairly.

GC6: Paragraph 21: …In cases where separated or unaccompanied children are referred to asylum procedures or other administrative or judicial proceedings, they should also be provided with a legal representative in addition to a guardian. (emphasis added)

GC6: Paragraph 36: In 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. (emphasis added)

GC6: Paragraph 68: Appropriate measures required under article 22(1) of the Convention must take into account the particular vulnerabilities of unaccompanied and separated children. Such measures should be guided by the considerations set out below.

GC6: Paragraph 69: …The unaccompanied or separated child should also, in all cases, be given access, free of charge, to a qualified legal representative, including where the application for refugee status is processed under the normal procedures for adults. (emphasis added)

GC6: Paragraph 70: Refugee status applications filed by unaccompanied and separated children shall be given priority and every effort should be made to render a decision promptly and fairly. (emphasis added)

GC6: Paragraph 72: …The guardian and the legal representative should be present during all interviews.

In its recent Guidelines on Child Asylum Claims, UNHCR notes that due to their young age, dependency and relative immaturity, children should enjoy specific procedural safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims. According to UNHCR, minimum standards include an entitlement, arguably free of charge, to a legal representative where children are principal applicants in asylum procedures.

Paragraph 65: Due to their young age, dependency and relative immaturity, children should enjoy specific procedural and evidentiary safeguards to ensure that fair refugee status determination decisions are reached with respect to their claims.[30] The general measures outlined below set out minimum standards for the treatment of children during the asylum procedure.

Paragraph 69: An independent, qualified guardian needs to be appointed immediately, free of charge in the case of unaccompanied and separated children. Children who are the principal applicants in an asylum procedure are also entitled to a legal representative.[31] Such representatives should be properly trained and should support the child throughout the procedure. 

 These guidelines also state that a child sensitive application of the refugee definition would be consistent with the CRC and that the principles of non-discrimination and best interests of the child (discussed in subsection C above) “inform both the substantive and the procedural aspects of the determination of a child’s application for refugee status.”[32]

 As part of its operational guidance to States and other entities, the Conclusion on Children at Risk identifies “components that may form part of a comprehensive child protection system, with the aim of strengthening the protection of children at risk”.[33] In this regard, the Conclusion states that the best interests of the child shall be a primary consideration in all actions concerning children.[34] It also recommends that States and other relevant agencies act to prevent children being put at heightened risk by providing qualified free legal representation for UASC.[35]

 The UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum provides that upon arrival, a child should be provided with a legal representative and states that claims from unaccompanied children should be examined in a fair manner.

Paragraph 4.2: Upon arrival, a child should be provided with a legal representative. The claims of unaccompanied children should be examined in a manner which is both fair and age-appropriate.

 

 


[1] See http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&... (last accessed December 6, 2010)

[2] Vienna Convention on the Law of Treaties, Article 18.

[3] All States Parties are obliged to submit regular reports to the Committee on how the rights in the CRC are being implemented. States must report initially two years after acceding to the Convention and then every five years. The Committee examines each report and addresses its concerns and recommendations to State Parties in the form of “concluding observations”. For information on the Committee, see http://www2.ohchr.org/english/bodies/crc/ (last accessed on December 6, 2010). See also Mieke Verheyde and Geert Goedertier, A Commentary on the United Nations Convention on the Rights of the Child, Article 43-45: The UN Committee on the Rights of the Child, (Martinus Nijhoff Publishers, 2006).

[4] See e.g. Mieke Verheyde and Geert Goedertier, A Commentary on the United Nations Convention on the Rights of the Child, Article 43-45: The UN Committee on the Rights of the Child, (Martinus Nijhoff Publishers, 2006), at 38-41. 

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

[6] Id.

[7] United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees (Guidelines on Child Asylum Claims), at cover page.

[8] United Nations High Commissioner for Refugees, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (Guidelines on Unaccompanied Children Seeking Asylum), at paragraph 1.3.

[9] See Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) (“[T]he Handbook provides significant guidance in construing the Protocol, to which Congress sought to conform.  It has been widely considered useful in giving content to the obligations that the Protocol establishes.”

[10] The UN Economic and Social Council established this body in 1958 and it formally came into existence on January 1, 1959. The Executive Committee is currently composed of 79 member States, which includes the United States. For information on the Executive Committee, see http://www.unhcr.org/pages/49c3646c83.html (last accessed December 6, 2010).

[11] See Executive Committee, Conclusion No. 107 (LVIII) – 2007 on Children at Risk (Conclusion on Children at Risk), at paragraph (a).

[12] Id. at paragraph (c)(ii).

[13] Id. at paragraph (c)(i).

[14] Id. at paragraph (a); See also Ron Pouwels, UNHCR’s Executive Committee Conclusion on Children at Risk, Refugee Survey Quarterly, 27(4).

[15] The Committee has identified the following Articles of the CRC as general principles for its implementation: Article 2 (non-discrimination), Article 3(1) (best interests), Article 6 (right to life and survival and development) and Article 12 (right to express views and be heard). See Committee on the Rights of the Child, General Comment No. 5 (2003): General Measures of Implementation for the Convention on the Rights of the Child, at paragraph 12. See also Committee on the Rights of the Child, General Comment No. 6.

[16] This would include for example, the obligation to respect and ensure the rights in the CRC without discrimination on the basis of a child’s immigration status.

[17] It is well established in international human rights law that not all differences in treatment constitute discrimination. Generally, the concept of differentiation in human rights law permits differences in treatment if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate.

[18] Universal Declaration of Human Rights, at Article 2.

[19] Charter of the United Nations, at Articles 1(3), 55 and 56.

[20] International Covenant on Civil and Political Rights, at Article 2.

[21] The Conclusion on Children at Risk indicates that strategies and actions to strengthen protection of children at heightened risk should be underpinned by fundamental principles. This includes ensuring the non-discriminatory enjoyment of rights and each child’s right to life. See Executive Committee, Conclusion on Children at Risk, at paragraph (b).

[22] See e.g. Convention on the Elimination of Discrimination Against Women, Article 4.

[23]  American Convention on Human Rights, at Article 1(1).

[24] See http://www.oas.org/juridico/english/sigs/b-32.html (last accessed December 6, 2010).

[25] UNHCR’s Guidelines on Unaccompanied Children Seeking Asylum also confirm that an unaccompanied child seeking asylum should not be refused access to the territory. At paragraph 4.1, it states the following: “Because of his/her vulnerability, an unaccompanied child seeking asylum should not be refused access to the territory and his/her claim should always be considered under the normal refugee determination procedure.” 

[26] See Articles 3(1), 9(1), 9(3), 18(1), 20(1), 21, 37(c) and 40(2)(b)(iii).

[27] See e.g. Charter of Fundamental Rights of the European Union, Article 24(2) and African Charter on the Rights and Welfare of the Child, at Article 4(1).

[28] See Executive Committee, Conclusion on Children at Risk, at paragraph (b)(v):

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

[30] “The relevant applicable age for children to benefit from the additional procedural safeguards elaborated in this section is the date the child seeks asylum and not the date a decision is reached…” United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 65, footnote 129.

[31] “…Legal representative” refers to a lawyer or other person qualified to provide legal assistance to, and inform, the child in the asylum proceedings and in relation to contacts with authorities on legal matters…” United Nations High Commissioner for Refugees, Guidelines on Child Asylum Claims, at paragraph 69, footnote 135.

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

[33] Executive Committee, Conclusion on Children at Risk, at paragraph a.

[34] Id. at paragraph b(v).

[35] Id. at paragraph b(viii).