Impact of the new pact on migration and asylum on child refugees and unaccompanied minors

Abstract

In the wake of the refugee and migration crisis in 2015, the European Union changed its legislation with a view to improving the protection of refugees, as well as children and unaccompanied minors. As part of the changes, the European Commission proposed the New Pact on Migration and Asylum, which drastically amends the Common European Asylum Policy. The Commission also withdrew the Proposal to amend the Dublin III Regulation on grounds of being contrary to the case law of the Court of Justice of the European Union concerning the transfer of a child to the country of first entry. The New Pact on Migration and Asylum envisages procedures to take place at the external borders of the EU and exempts unaccompanied children and children under the age of twelve together with their families from border procedures. Such setting of the age limit of a child outright contradicts the definition of a child under the Convention on the Rights of the Child and the case law of the Court of Justice of the European Union, which determine it as any person under the age of eighteen is considered a child. A burning issue is the current practice of treating asylum-seeking children and minors principally as asylum seekers and not children. While they may be asylum seekers, they are children and minors first, and as such must be protected primarily by international law relating to their protection. Although the 1951 Convention relating to the Status of Refugees also applies to children, nowhere is the term refugee child explicitly defined. Comparably, while the Convention on the Rights of the Child does recognize the term refugee child, it provides limited guidance to States Parties to identifying and assessing the refugee status of the child. In arguing that the New Pact on Migration and Asylum should be in line with international refugee law and the Convention on the Rights of the Child and abide by the principle of the best interest of the child, this paper will attempt to answer the following: Is the New Pact on Asylum and Migration in compliance with the principle of the best interests of the child? Does it protect the asylum-seeking child as required by international and European law?