Article 22: The Right to Protection for Refugee and Asylum-Seeking Children

Abstract

AbstractArticle 22 guarantees the substantive application of all Convention rights to the particular situation of asylum seeking and refugee children, and also guarantees them protection and assistance in advancing their immigration and residency status claims and in overcoming the hurdles posed by international migration channels, including guarantees of due process. The rights of refugee and asylum-seeking children can be analyzed in relation to four essential attributes. First of all, Article 22 insists upon appropriate protection and humanitarian assistance. Refugee children are not granted a special status under the Convention, but they are not given any lesser status. They are to be treated as children first and foremost and not as migrants per se, in the sense that national immigration policy cannot trump child rights. The basic rights to education, health, and child welfare of these children needs to be protected to the same extent, and as much as possible, as children who are nationals of the host country. The second attribute preserves the rights of refugee children not only under the Convention but under all other international human right treaties and humanitarian instruments binding on the relevant States Party. These may include, for many governments, the 1951 Refugee Convention, the Convention on the Reduction of Statelessness, the Geneva Conventions and the Hague Convention for the Protection of Minors, 1961, among others. A third attribute of Article 22 insists upon the duty to protect and assist refugee children. This entails a clear duty to provide children with appropriate due process rights throughout their asylum and refugee claims procedures, including the child’s right to be heard and participate in all the processes determining the child’s residence or immigration status, border admission, deportation, repatriation, detention, alternative measures, or placement, including best interest determination processes. The fourth and final attribute of Article 22 asserts that two basic principles should guide each activity with the refugee child: the best interests of the child and the principle of family unity.