Introductory Remarks
1. UNHCR supports the initiative of the Department of Citizenship and Immigration (CIC) to develop a national policy regarding the reception and care of unaccompanied minor asylum-seekers. Protection and assistance need to be delivered to unaccompanied minor asylum-seekers in a systematic, comprehensive and integrated manner, and UNHCR welcomes CIC's stated commitment to work, in conjunction with the Provinces, to identify and address existing policy and programme gaps, and to ensure that unaccompanied minors are treated in a manner that promotes and protects their best interests. UNHCR appreciates this opportunity to comment on the August 18, 2000 draft of the Discussion Paper, "Unaccompanied Minor Asylum-Seekers," and looks forward to participating in the ongoing regional consultations on this important issue.
2. UNHCR's comments are offered from the perspective of international
refugee law and best practices concerning unaccompanied minor asylum-seekers. UNHCR has provided guidance on the specific needs of unaccompanied minor refugees and asylum-seekers in "Refugee Children - Guidelines on Protection and Care" (1994) and "Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum" (1997). UNHCR has also commented on the detention of minor asylum-seekers in "UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers" (1999).
3. The overriding objective in this area must be to act in the best interests of the child. UNHCR therefore welcomes the revised statement of the Principal Policy Objective in the most recent draft of the Discussion Paper: to develop policy proposals that ensure that "minors are treated in a manner that is consistent with their best interests,including protection from exploitation…." Nonetheless, the Paper appears to have been written largely with one group in mind: the Chinese migrant youth who arrived in British Columbia in 1999. Thus the Paper is framed very much as a response to the phenomenon of trafficking of minors and their possible exploitation. Yet unaccompanied minor asylum-seekers come to Canada from numerous countries of origin, by diverse means, and have varying needs and degrees of vulnerability. Care must be taken to ensure that national policy is not unduly influenced by the experience with the Chinese minors. UNHCR urges CIC to ensure that a broader perspective is adopted in considering the issue of unaccompanied minor asylum-seekers, since protection from exploitation is but one of a number of vital interests of these children. Measures to protect children from exploitation should not compromise a state's ability to meet its broader obligations towards unaccompanied minors.
4. UNHCR welcomes the confirmation in the Discussion Paper of CIC's commitment to ensure that policies and procedures are consistent with Canada's obligations under the Convention on the Rights of Child. The Paper identifies specific articles of that Convention which decision-makers must take into account when making decisions which affect unaccompanied minors. UNHCR urges that the principles articulated in Article 12(1) of the Convention be respected, along with the other articles mentioned in the Discussion Paper.
Standard Definition for Unaccompanied Minor
5. UNHCR recognizes that the development and implementation of a uniform policy for the care of unaccompanied minors in Canada is complicated by the distinct legislative and administrative framework through which the care of minors is delivered in each Province. The adoption of a standard definition for an unaccompanied minor, and the acceptance of 18 years as the age below which certain minimum standards of care and treatment will be delivered to minors in Canada, will help to narrow significant protection gaps which result from regional disparities. The acceptance of 18 as the age of majority is in keeping with international instruments and standards on the rights of minors.
6. The definition proposed in the Discussion Paper is: "any child under the age of 18 who is separated from his/her parents." This definition fails to take account of the fact that minor asylum-seekers who have been separated from their parents are frequently looked after by relatives, or by others who (by law or by custom) have assumed the role of guardian. This reality is reflected in the definition of "separated child" adopted by UNHCR and The International Save the Children Alliance in their 2000 report. It is also reflected in the definition of "unaccompanied child" in UNHCR's "Refugee Children - Guidelines on Protection and Care" (1994.) It is UNHCR's experience that separation from customary care-givers can be very harmful to a child, and may be contrary to the minor's best interests. While care must be taken in assessing and monitoring the nature and implications of such custodial relationships, children should not be separated from appropriate customary care-givers. We would recommend that the definition in the Discussion Paper be revised to acknowledge appropriate non-parental custodial relationships.
7. Unaccompanied minors should be identified on a priority
basis. In general, an individual claiming to be under 18 years of age should
be treated as such. If unaccompanied minors are incorrectly identified
as adults, they will not be accorded the full protection to which they
are entitled under international law. UNHCR's "Guidelines on Policies and
Procedures in dealing with Unaccompanied Children Seeking Asylum" (1997)
recommend that children should be "given the benefit of the doubt if the
exact age is uncertain." If an age assessment is considered necessary,
it should be carried out by an independent physician who has expertise
in safe age assessment procedures and familiarity with and respect for
the child's ethnic/cultural background. Examinations should not be forced
or conducted in a degrading or age-inappropriate manner. It is important
to note that scientific procedures for age assessment are not exact, and
a considerable margin of error needs to be recognized.
Referral of Unaccompanied Minors to Provincial Child-Welfare Authorities
8. UNHCR would urge that an arrangement be reached whereby
all unaccompanied minors in Canada can be referred to Provincial child-welfare
authorities as soon as possible after arrival. This will, of course, require
the Federal and Provincial authorities to come to an understanding on funding
and other support for the children. In UNHCR's view, it is the Provincial
child-welfare authorities who are in the best position to assess what actions
will be in the interests of the child. Child-welfare authorities have the
expertise to make an assessment of immediate needs and protection concerns,
and appropriate long-term care arrangements. UNHCR would urge that referral
to child-welfare authorities take place regardless of the means of arrival
of the child, or the manner in which the minor has come to the attention
of CIC. This will help to ensure that minors who require refugee protection
are referred to the proper resources, and will promote consistency in the
delivery of appropriate care.
Appointment of a Guardian
9. A suitable guardian should be appointed as soon as possible after an unaccompanied minor is identified. In UNHCR's view, guardianship is a fundamental element of protection of unaccompanied minors. The guardian should assume overall responsibility for ensuring that the child's needs (physical, psycho/social, cultural, legal, medical, educational) are met, while refugee status is being determined and until a durable solution for the minor is identified and implemented. The designated representative appointed under the Immigration Act to represent a minor in refugee status determination proceedings before the Immigration and Refugee Board has a narrower function than a guardian, and therefore cannot be considered to be an appropriate substitute.
10. The Provincial Governments in Canada have primary
responsibility for matters relating to the reception and integration of
unaccompanied minor refugees and asylum-seekers, including the appointment
of guardians. Policies and practices regarding the appointment of guardians
vary greatly. In Provinces where there is no automatic appointment of an
appropriate guardian, or assumption of guardianship by the Provincial child-welfare
authorities, many unaccompanied minors do not have anyone to represent
their interests. As a result, their basic needs, including education, health
care, appropriate living arrangements, and access to other child-appropriate
services and programmes, are not always met.
Appropriate Care Arrangements for Unaccompanied Minors
11. The Discussion Paper sets out four possible models for the care of unaccompanied minor asylum-seekers. Consideration of these models, and how they might be implemented, is ongoing, and UNHCR will be pleased to continue to participate in these discussions. It is, however, UNHCR's firmly held view that secure care arrangements should be the exception, not the rule. The detention of minor asylum-seekers is inherently undesirable and should be used only in exceptional circumstances, and as a last resort. The automatic detention of all unaccompanied minor asylum-seekers pending a positive refugee determination or removal would be inconsistent with Canada's international obligations and would not be acceptable to UNHCR. UNHCR urges CIC and the Provinces to work on arrangements based on Option 3 in the Paper ("Special care with partnership"), which would appear best suited to ensure consistency of approach and appropriate care for children.
12. UNHCR recognizes that certain unaccompanied minors, in particular those believed to have been trafficked for the purposes of labour, prostitution or other criminal activity, are particularly vulnerable. Even the best open-care arrangements may not be adequate to protect such minors from exploitation. In these cases, secure-care arrangements may have to be adopted. It is however important to make the distinction between traditional models of detention, and a secure-care arrangement for unaccompanied asylum-seeking children. The use of regular detention facilities and models, including those for juvenile offenders, would not be appropriate for unaccompanied minor asylum-seekers who are perceived to be at risk, yet who have not committed any crime.
13. Secure-care arrangements should only be applied after an assessment by a child-welfare professional that an unaccompanied minor has a particular vulnerability or is at risk of exploitation, and that the best interests of that child cannot be protected in an alternative arrangement, such as in a foster home, group home or other open-custody facility. A decision to adopt a secure-care arrangement must be based on an individual assessment of the particular circumstances of an unaccompanied minor asylum-seeker. Volume, means of arrival, or other administrative considerations, in the absence of other risk factors, should not be used to justify secure-care arrangements.
14. Where, after careful consideration, it is determined that there is no alternative to deprivation of liberty, detention should be carried out in accordance with Article 37 of the Convention on the Rights of the Child which states: "The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as measure of last resort and for the shortest appropriate period of time…" Conditions of detention must comply with international norms, including the "UN Rules for the Protection of Juveniles Deprived of their Liberty" (1990). The "UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers" (1999) should also be respected. UNHCR welcomes the express acknowledgement by CIC in the Discussion Paper that the conditions in secure-care facilities must be appropriate for the care of unaccompanied minors.
15. Where it is necessary to place a child in a secure-care arrangement, UNHCR considers that, at a minimum, the following conditions must be present:
Minors who are Determined to be Refugees or
otherwise Entitled to Remain
16. The Discussion Paper acknowledges that "immigration
policies do not generally promote family reunification for the unaccompanied
minor in the country of asylum." However, Article 10(1) of the Convention
on the Rights of the Child states that: "… applications by a child
or his or her parents to enter or leave a State Party for the purpose of
family reunification shall be dealt with in a positive, humane and expeditious
manner..." If an unaccompanied minor is recognized as a refugee, UNHCR
believes that the principles of family reunification should be applied,
unless it can be shown that reunification is not in the child's best interest.
Where an unaccompanied minor refugee seeks assistance in being reunited
with his or her family in another country of asylum where reunification
can take place, the child should be helped to join them there. Where this
is not possible, consideration should be given to allowing immediate family
members to join the minor in the country of asylum.
Minors who are Determined not to be Refugees
17. The responsibilities of states regarding unaccompanied minor asylum seekers continue even if a minor is not recognized as a refugee. It is the position of UNHCR that if an unaccompanied child is denied refugee status, an assessment of the long-term solution that is in the best interest of the child should follow, as soon as practicable after the negative decision is confirmed. The Discussion Paper stresses the objectives of removal and return home for rejected claimants. The removal of a rejected unaccompanied minor asylum-seeker should only be undertaken when it can be established that appropriate reception arrangements exist in the receiving country. The need for appropriate reception arrangements is acknowledged by CIC in the Paper:
18. As a guiding concept, the principles of family reunification and best interest of minors are usually compatible. While UNHCR considers that every effort must be made to assess the possibility and appropriateness of promptly reuniting rejected minor asylum-seekers with their families, there are circumstances where return to the family environment may not be in the best interests of the minor concerned. This issue is of particular importance in cases where a child has been the object of trafficking. Parents or guardians may have handed the child over to traffickers, and they may not be willing to resume the care of a minor who is returned, or may compel the minor to depart again. In such a case, a careful assessment must be made as to whether returning a minor to the family and/or the country of origin would be in that child's best interest.
19. The Discussion Paper correctly recognizes that decision-makers should be guided by Article 20 of the Convention on the Rights of the Child. The principles articulated in Article 20 apply to all unaccompanied minor asylum-seekers, including those whose refugee claims are rejected. In particular, Article 20(1) states: "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." Article 20(3) provides guidance on long-term solutions for unaccompanied minors over whom a state has assumed care: "…When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious and linguistic background." It is also important, as stated earlier, that the views of the child be given due consideration, in accordance with Article 12(1) of the Convention.
Conclusion
20. UNHCR attaches great importance to the ongoing efforts of CIC to develop and implement a uniform policy for the care of unaccompanied minor asylum-seekers. Complex issues of Federal and Provincial jurisdiction, as well as the distinct Provincial legislative and administrative frameworks for the care of unaccompanied minors, have resulted in significant protection gaps for unaccompanied minor asylum-seekers in Canada. These gaps need to be closed.
21. UNHCR therefore urges the Federal and Provincial Governments to continue efforts to achieve uniform national standards on the issues, including the adoption of a uniform definition for unaccompanied minors, which accepts 18 years as the age below which certain minimum standards of care will be delivered; the automatic referral of all unaccompanied minors to Provincial child-welfare authorities; and the immediate designation of an appropriate guardian. Agreement on these and other matters, such as level of care, nature of accommodation, and access to education, will help to achieve greater consistency in how Canada deals with unaccompanied minor asylum-seekers.
22. UNHCR reiterates its appreciation for this opportunity
to comment on the CIC Discussion Paper, and looks forward to continuing
co-operation with CIC and the Provincial Governments, in a joint effort
to ensure that care arrangements for all unaccompanied minor asylum-seekers
in Canada promote and protect the children's best interests.
UNHCR Ottawa
13 September 2000