Abstract
Children experiencing persecution, torture, ill-treatment, exploitation and violence are compelled to flee across international borders to seek protection in another state. When a child ...seeks international protection, the framework of rights under the Convention on the Rights of the Child and the Convention Relating to the Status of Refugees should guide a state to determine the child’s status and protection needs. However, a child’s best interests and right to protection may clash with a state’s interest in immigration control. Increasingly, states are implementing strict laws to discourage irregular migration and to encourage those without leave to remain to return to their countries of origin. Such laws or policies have an impact on people seeking international protection, including children. The UK government’s ‘hostile environment’ policy is an example of this and applies to all adults and children who enter the UK irregularly and have no right to remain. I argue that the UK’s approach violates its international obligations under the Convention on the Rights of the Child. This article analyses how the children’s rights framework, in particular the ‘best interests’ principle, is able to challenge the UK’s ‘hostile environment’ policy.
This article presents a tentative analysis of 30 years of academic research in the field of children's rights and migration (1989-2019). Much research has addressed the plight of unaccompanied, ...refugee and asylum-seeking children, trying better to link children's rights considerations with international refugee law. Many publications address the best interests of the child principle and the right to be heard. Most research focuses on (migration towards) Europe. This has led to an increased visibility and recognition of children's rights in the context of migration.
However, there are still various blind spots in the research reviewed. Most research focuses on some children, but not all (e.g., accompanied children), on some rights, but not all (e.g., economic, social and cultural rights), and on some types of migration, but not all (e.g., economic migration). Moreover, refugee and migrant children tend to be studied as a group, which risks reducing attention for their internal diversity.
This article presents a tentative analysis of 30 years of academic research in the field of children’s rights and migration (1989–2019). Much research has addressed the plight of unaccompanied, ...refugee and asylum-seeking children, trying better to link children’s rights considerations with international refugee law. Many publications address the best interests of the child principle and the right to be heard. Most research focuses on (migration towards) Europe. This has led to an increased visibility and recognition of children’s rights in the context of migration.
However, there are still various blind spots in the research reviewed. Most research focuses on some children, but not all (e.g., accompanied children), on some rights, but not all (e.g., economic, social and cultural rights), and on some types of migration, but not all (e.g., economic migration). Moreover, refugee and migrant children tend to be studied as a group, which risks reducing attention for their internal diversity.
There is broad acceptance of the interaction between international human rights law (IHRL) and international refugee law (IRL) and that the growing alignment between both areas of international law ...contributes to the development of IRL. Nevertheless, the child is often invisible or incorrectly assessed in a refugee status determination process. The United Nations Convention on the Rights of the Child (CRC) is recognised as an interpretative instrument to assess refugee children’s claims. This is evidenced in contexts including the interpretation of the definition of ‘refugee’ in the Refugee Convention, the determination of the ‘being persecuted’ criteria, the non-refoulement duty of the state and as a potential additional source of protection for children. The best interests principle in Article 3(1) CRC, which renders children’s best interests a primary consideration in all actions concerning them (including refugee and asylum-seeking children) has been used to balance a child’s interests against the interests of others in cases involving them. The principle has become a dominant feature in asylum cases where children are involved, with the child’s interests being balanced against those of the state. The growing alignment between IHRL (including children’s rights) and IRL reflects the fact that IRL is moving towards a rights-based approach to protection in the context of child asylum claims, but that the parameters of protection are interpreted too restrictively. This is due to a narrow interpretation of the best interests principle, resulting in the privileging of state interests over the refugee child’s protection and rights. My thesis argues that this state of affairs is problematic in terms of ensuring the protection and the rights of refugee children. It does so on the basis that the balancing exercise currently carried out by decision-makers ignores the obligation of the state under Article 3(2) CRC to protect and care for the child as is necessary for their well-being. The thesis argues that this obligation, which complements the best interests principle in Article 3(1) CRC, as well as the obligation to provide ‘appropriate protection and humanitarian assistance’ to refugee children under Article 22 CRC amounts to a right to protection for the refugee child in terms of the CRC. This right should be an integral part of the operationalisation of the best interests principle in decision-making about the refugee child.
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