Introduction
In 2015 Sami, a Syrian boy aged 15 years, embarked on the journey from Turkey crossing the Mediterranean Sea alone in an attempt to attain a form of asylum within Europe. On arrival in Greece, when interviewed, Sami narrated his aspiration to reach Germany in order to seek safety and continue his education:
This account given by a Syrian child, who fled armed conflict to Turkey thereafter undertaking the perilous sea crossing to reach Europe in pursuit of international protection, provides the starting point for an analysis that aims to place the refugee child at the heart of the current so-called European refugee “crisis” (Gilbert 2015) and the search for solutions.1I left Syria because my house was bombed. I left my family sleeping in a park. I want to go to live in Germany because people tell me that there I will be able to live in peace and I will be able to go back to school. …I called my mother yesterday. She was so happy to hear from me, to know that I was safe, she cried from happiness. No one would ever have known if I was alive or dead, if I had managed to make the journey by boat [to Greece] safely or if I had drowned. How would they know? Who would tell them? (Save the Children 2016)
Reflecting on the self-expressed motivations of a refugee child, seeking sanctuary, safety, and stability coupled with the hope to construct a future through education come to light as driving forces underlying the journey to and within Europe, despite its grave risks. This forms a reminder that regardless the child’s status, first and foremost he or she is a rights holder, with hopes and experiences shaped in diverse and significant ways by forced displacement. For Syrian children, the armed conflict has impacted their civil, developmental, social, and cultural rights for more than five years. Assessments indicate that more than 700,000 Syrian refugee children do not have access to formal education in their respective countries of asylum (UNICEF 2016b). This is the message proffered by Jason Hart, who argues that:
Displacement, whichever form it takes, can entail upheaval on many levels—societal, familial, and institutional—with specific consequences for those in the early years of life. … Throughout most of the world the state bears responsibility as the ultimate guarantor of the basic rights and well-being of children, intervening when parents fail. … Yet forced migrant children are often distanced from state bodies and denied … access to basic services, and family reunification. (2014, 2)
Throughout the course of 2015 and at the beginning of 2016, a large-scale movement of women, men, boys, and girls seeking international protection in Europe captured global attention. In 2015 alone, more than one million individuals, principally originating from so-called “refugee producing” countries, including Syria, Iraq, and Afghanistan, entered Europe by sea. Within the 1.26 million first-time applicants for asylum in European Union (EU) member states in 2015—almost double that of 2014—29 % were of Syrian nationality, followed by Afghanistan with 14 % and thereafter Iraq—two other countries beset by violence and armed conflict resulting in continuous waves of displacement, particularly of unaccompanied children (Eurostat 2016a). On this basis, the vast majority are considered in need of international protection and, whereas reasons for migration are complex, this essentially represents a refugee movement. Even though accurate data disaggregated by age and gender is not available, estimates by the United Nations High Commissioner for Refugees (UNHCR) suggest children below the age of 18 years constituted 25 % of the total in 2015, a figure steadily increasing in 2016 to 35 % (UNHCR 2016f). Visa requirements and carriers’ sanctions pursuant to the Schengen Agreement act as a barrier to regular entry into the EU countries for individuals seeking asylum. Children in search of international protection enter Europe irregularly, aided by people smugglers facilitating movements for profit and thus placing their lives and safety at risk (Guild et al. 2015).2
First propelled onto center stage of both the European and international agendas by human tragedy—more than 600 individuals drowning in a single day in the Mediterranean after their boat capsized in April 2015—the high number of asylum-seekers coupled with the uncoordinated and ad hoc European policy response has kept this subject under the international spotlight (UNHCR 2015b). At present, Europe is considered largely on the cusp of a “self-induced humanitarian crisis” (Edwards 2016), characterized by an increase in refugees, including many children, stranded in subpar reception centers in Greece, chaotic border restrictions along the Western Balkans route, and the implementation of returns to Turkey under the EU–Turkey Agreement.
In September 2015, the image of the young Syrian boy, Aylan Kurdi, drowned at sea and washed ashore on a Turkish beach after a failed attempt to reach Greece, reverberated around the world, resulting in international appeals for measures designed to strengthen the European responsive framework and improve the protection of children. By this time, that is August 2015, more than 2,500 of the estimated 300,000 individuals undertaking the Mediterranean crossing had perished, including thousands of children (United Nations News Centre 2015). Indeed, within this context, the United Nations Committee on the Rights of the Child emphasized the “devastating, and at times irreversible impact, the crisis continues to have on the rights and well-being of children.” The Committee appealed for the EU to adopt a child rights approach when planning and implementing its response. According to Chairperson, Benyam Dawit Mezmur:
To what extent has this plea been heeded by EU member states and its institutions? To date, literature has not comprehensively examined the situation of refugee children within this European “crisis.”All European states have ratified the UN Convention on the Rights of the Child, and have committed to ensuring rights to all children that come under their jurisdiction irrespective of their legal status, and without discrimination of any kind. The majority of these children have already experienced human rights violations before leaving their countries of origin, and subjecting them to yet more violations within European borders through laws and treatment that are contrary to their rights constitutes an additional serious violation of Convention obligations. The right of the child to have his or her best interests taken as a primary consideration should serve as the underlying obligation upon which all migration laws, policies, and services in countries of origin, transit and destination must hinge. (UN Office of the High Commissioner for Human Rights 2015b)
With the objective of addressing this gap, this chapter explores the extent to which European policy and legal responses and national social protection systems are protecting refugee children and ensuring access to durable solutions in their best interests. Three elements guide this analysis and this chapter is accordingly presented in three substantive sections. Section 2 charts the journey of refugee children into and across Europe, and in doing so, identifies the myriad of risks to their protection and well-being. Statistical data establishes that the majority of individuals, including children, sought international protection in Europe via the Mediterranean Sea route from Turkey. Focus is, therefore, placed on reception of children in Greece and their onward internal pathway across Europe. The brief case studies of Germany and Sweden—selected on the basis that these states represent the main destination countries for accompanied and unaccompanied children, respectively—are used to evaluate national child and social protection systems vis-à-vis refugee children. A subsequent analysis is whether the European policy response adequately protects children. Section 3 examines durable solutions for refugee children caught in the midst of this contemporary “crisis.”
It is submitted that legal and policy based measures taken at the national and European levels fail to adequately address the protection, rights, and well-being of those refugee children mixed into the varied phases of the “crisis” in Europe and ensure such children achieve durable solutions in their best interests. Member states and European Union bodies must work towards upholding the rights of refugee children, provide meaningful access to strengthened national child protection systems, and ensure the realization of durable solutions.
Before embarking on a detailed analysis of the place of the refugee child in the European “crisis” and durable solutions, it is necessary to define key terms. Acquis refers to the accumulated legislation and jurisprudence constituting the body of European law. In the media, the terms “refugees” and “migrants” have been employed interchangeably. However, there is a critical legal distinction between them. On the one hand, a refugee refers to an individual, including a minor under the age of 18 years, who falls under the definition of a refugee, enshrined in the 1951 Convention Relating to the Status of Refugees, and/or is a beneficiary of subsidiary protection laid down by the CEAS. In other words, refugees are outside their country of origin as a result of persecution, armed conflict, violence, events seriously disturbing the public order, and accordingly, require international protection. The provisions of the 1951 Convention and its 1967 Protocol form the cornerstone of the legal regime setting out the rights of refugees. An asylum-seeker—denoting essentially what may be considered as an immigration status—is a person seeking a form of international protection, whether recognition as a refugee, subsidiary protection beneficiary or other protection status. It must be borne in mind that determination of refugee status is declaratory in nature—the absence of formal recognition does not preclude the possession of refugee status. For this reason, the term “refugee” for children is used throughout this chapter.
On the other hand, despite that a uniform definition of “migrant” does not exist, “migration” is commonly understood to imply a voluntary process. Blurring this terminology disregards the legal protections afforded to refugees, including against forced return to a place where their life or freedom may be threatened under the principle of non-refoulement and from being penalized for crossing borders without authorization in order to seek safety (Convention Relating to the Status of Refugees 1951, Art. 1(a), Art. 31, and Art. 33; UNHCR 2016g).3 Given that the focus of this chapter falls upon refugee children, it is beyond its scope to address children migrating to Europe who are not refugees and the various legal obligations regarding their treatment.
A Child Rights Analysis of Refugee Children’s Plight and the European Response
Charting the Refugee Child’s Motivations and Journey into Europe
As detailed in the preceding, the majority of children seeking international protection within the European Union depart irregularly from Turkey. In this context, some of the factors propelling this large-scale onward movement of children and their families to Europe should be examined.
Turkey hosts the largest population of Syrian refugees—approximately 2.7 million—mainly dispersed across urban areas, with small numbers residing in refugee camps (UNHCR and Government of Turkey 2016). In addition, Turkey provides asylum to an estimated 258,000 refugees and asylum-seekers originating from other countries, principally Iraq and Afghanistan (European Commission 2016a; UNHCR 2016e). Despite accession to the 1951 Convention and its 1967 Protocol, Turkey expressly maintains the geographical limitation that restricts formal refugee status to individuals fleeing events occurring within Europe. It follows that asylum-seekers from countries outside Europe are provided with a “conditional” form of refugee status. In prac...