CLINIC

 

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

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.[1] 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.[2]

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….[3]

A plethora of other international instruments including the Universal Declaration of Human Rights,[4] the United Nations Charter[5] and the International Covenant on Civil and Political Rights[6] also articulate the prohibition against discrimination.[7] 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.[8]

Many regional treaties also articulate the prohibition against discrimination including, most notably, the American Convention on Human Rights.[9] While the United States has signed this treaty, it has yet to proceed with ratification.[10]

 

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.[11]

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.[12] Regional instruments also endorse the best interests principle as a primary consideration in actions concerning children[13] while the Conclusion on Children at Risk recognizes that strategies and actions under it should be underpinned by, inter alia, the best interests principle.[14] 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.

 

 


[1] 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.

[2] 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.

[3] 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.

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

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

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

[7] 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).

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

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

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

[11] 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.” 

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

[13] 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).

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