Treatment of vulnerable migrants and the responsibilities of states for their care is a matter of international concern and has been elaborated upon in several compacts and declarations, including the New York Declaration on Refugees and Migrants, the Global Refugee Compact, and the Global Compact for Safe, Orderly and Regular Migration. First point of order is whether or not these compacts apply to the circumstances of unaccompanied migrant children near the southern US land border. The answer is unambiguously "yes".
The UN maintains a précis on the commitments in the New York Declaration on Refugees and Migrants
The New York Declaration for Refugees and Migrants expresses the political will of world leaders to save lives, protect rights and share responsibility on a global scale. At the UN Summit on 19 September, we expect to hear from world leaders about how each country will implement these...
refugeesmigrants.un.org
Among the commitments are:
- Work towards ending the practice of detaining children for the purposes of determining their migration status.
UNICEF has published a working paper on "Alternatives to Immigration Detention of Children" which offers proposals for the question that has been asked many times
The paper is worth reading in full. I will quote the opening summary in full because it addresses the issues of detention of unaccompanied migrant children from several directions. I have highlighted several sections that I think bear on the topic of the thread.
- Immigration detention of children – whether they are travelling alone, or with their families - is never in their best interests, is a violation of their rights, and should be avoided at all costs.
- Immigration detention is expensive, burdensome to administer and rarely fulfils its stated objectives as a migration management tool, and it does not act as a deterrent to would-be migrants.
- The provisions on detention of children (as a 'measure of last resort') in the Convention on the Rights of the Child (CRC) may apply to children in conflict with the law, but are not applicable to immigration proceedings and therefore cannot be used to justify immigration detention of children.
- Child immigration detention cannot be justified solely on the basis of a child being unaccompanied or separated. When children are accompanied, the need to keep the family together also is not a valid reason to justify a child's detention.
- To avoid the risk of detention for unaccompanied or separated children, the key mechanism is swift identification, referral to national child protection authorities and provision of a guardian.
- Alternatives to detention for children and families include a range of options such as supported community placement, including placement with host families, bail schemes to ensure compliance with immigration proceedings or reporting requirements, or schemes whereby guarantors or sponsors agree to support the care and supervision of a migrant family in the community. The most effective alternatives involve case management provided by a range of actors – social workers, civil society or specialised staff from immigration authorities.
- Many states in all regions of the world already implement a mixture of alternative measures for both unaccompanied children and families; states that have invested in alternatives have found them both effective and cost-efficient, with low rates of absconding and high rates of compliance with migration status determination processes, including removal orders.
- The commitment of States to end the practice of immigration detention of children in the New York Declaration on Refugees and Migrants needs to be translated into concrete road maps supported by investment and political change.
- To meet commitments in the Global Refugee Compact (GCR) and Global Compact for Safe, Orderly and Regular Migration (GCM), UNICEF calls upon states to develop national action plans to manage the transition from the use of detention to the use of alternatives and a prohibition of child immigration detention.
Later in the paper under a heading "Special Measures for Unaccompanied and Separated Children" is this statement:
For unaccompanied and separated children, once identified, the key mechanisms that states can put in place to prevent detention are referral to national child protection authorities, and provision of a guardian. An unaccompanied and separated child should be accorded the same protection, support and care that any national child deprived of parental care would be offered. No State would wish to deprive a child citizen of their liberty simply because they are without parental care. If the obligation of the CRC to treat all children on a territory in a non-discriminatory manner is to be met, then migrant and refugee children must receive the same treatment.
I have to emphasize the bolded sentences above: Unaccompanied migrant children must receive exactly the same care as non-migrant children. This stance is damning for the US policy of detaining migrant children in separate facilities under conditions that are never applied to native children. The location, physical plant, supervision, and freedom of movement all differ markedly from conditions of non-migrant children. Above all is the policy of segregation of migrant children from other non-migrant children, and indeed from society at large.
The sentence highlighted in orange addresses the matter in a different way: lack of parental care does not justify taking away a child's liberty. Children are not to be confined as flight risks are locked in compounds for their own safety or any other reason; their status as citizens or aliens makes no difference.
Regarding the practical application of these obligations the UNICEF paper points to Zambia as a case of humane child migration policy. The Zambia program is described in another paper, Alternatives to Detention in Zambia.
A
National Referral Mechanism (NRM) and associated
Guidelineswere developed to effectively identify vulnerable migrants and refer them to appropriate authorities and services. According to the NRM, vulnerable migrants include refugees, asylum seekers, rejected asylum seekers, victims of trafficking (including 'presumed' and 'potential' trafficked persons), unaccompanied and separated children, stranded migrants and stateless migrants. The NRM process starts with an initial interview and registration of migrants by front-line officers.
The purpose of this initial interview is to assess immediate protection/assistance needs and to collect and register basic bio-data. The migrant is then referred to the relevant authority for a more comprehensive assessment and status determination. The relevant authority may include the police (for victims of trafficking), the social welfare ministry (for unaccompanied or separated minors), the Office of the Commissioner for Refugees (for refugees, asylum seekers and refused asylum seekers) and the immigration authorities (for stranded migrants or stateless persons).
Note in particular that emphasis is placed on speed and that unaccompanied children are placed in the care of the Social Welfare Ministry. They are not placed under the supervision of border security, law enforcement, or the military. They are put into the same system as native Zambian children.
This is what I demand. I demand a processing system that will make preliminary determinations of status in a matter of hours, not days or weeks or months. I demand that border control thugs have absolute minimum contact with children and that unaccompanied children are handed over to our child welfare social services in a matter of hours, not days or weeks or months. I demand that from that point onward migrant children be treated exactly as native children are treated in similar circumstances of unknown or missing family. I demand they be placed in communities all across the country to minimize the risk of systemic failures in border communities. I demand that the children be placed with guardians as quickly as possible with no prejudice for their immigration status, that they attend public schools with their peers regardless of immigration status, and that they have freedom of movement and association that any other American child would enjoy.
