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Committee on the Rights of the Child Rights of Children in International Migration 2012

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Committee on the Rights of the Child
2012 Day of General Discussion
The Rights of All Children in the Context
of International Migration

BACKGROUND
PAPER

August 2012

1

TABLE OF CONTENTS
I. Introduction
II. Structural Causes of International Migration of Children
a. Why children migrate
b. Pathways into irregularity
c. Gender factor in international migration
III. International Framework on the Rights of Children in International
Migration
a. International human rights framework, including regional and
other pertinent instruments
b. Role and jurisprudence of treaty bodies and regional human
rights systems
c. International cooperation
IV. Human Rights Challenges Affecting Children in the Context of
International Migration
a. Criminalization of irregular migration
b. Lack of human rights focus in international cooperation
c. Absence of consideration of best interests of the child in migration
situations
d. Restrictions on the right to family life and restrictive family
reunification policies
e. Lack of due process in migration procedures
f. Migration-related detention
g. Repatriation of migrant children in disregard of their best interests
h. Exclusion from systems for protecting child rights
i. Denial of access to economic, social and cultural rights and basic
services, including using such access as a migration management
tool
j. Lack of birth registration and statelessness
k. Lack of opportunities for regularization
l. Lack of awareness and training of pertinent authorities
m. Vulnerability to exploitation, abuse and trafficking
n. Vulnerability of children left behind
o. Insufficient data on international migrant children

V. Policy Proposals for Consideration
VI. Conclusion
Endnotes
Annexes (1 & 2)

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I.

Introduction
It is estimated that 214 million people – 3 percent of the world‟s population – live outside
their country of origin. Of these, around 33 million – 16 percent – are under 20 years of
age.1 Approximately 60 percent of international migrants under the age of 20 live in the
least developed and developing countries. There are, however, important regional
differences. In Africa, child and adolescent migrants account for 28 percent of the total
migrant population, and in Asia 21 percent, while in Europe and the Americas, this age
group represents only 11 and 10 percent of the total international migrant population,
respectively. Among international migrants under 20 years of age, boy migrants
outnumber girl migrants in most areas of the world. Globally, there are 95 female
migrants for every 100 male migrants under the age of 20.2 Again, there are significant
regional differences that arise due to distinct and unique intra- and inter-regional
migratory patterns.3
An increasing number of children are migrating in search of survival, security, improved
standards of living, education, protection from exploitation and abuse, or a combination
of these factors.4 Until recently, migration has been discussed in terms of adult male
movement, with the exception of trafficked, refugee, unaccompanied and separated
children having received some attention by researchers and policy-makers. These
categories of children on the move have often been presented in the literature as “passive,
vulnerable, and exploited”,5 an approach that has led to “inadequate assumptions” about
the motivations, lives and needs of child migrants.6 For the most part, the discourse on
child migration has not yet fully taken into account the fact that human mobility not only
affects the millions of migrant children who leave their countries of origin, but also
countless children left behind, as well as children born to migrant parents* in countries of
destination.
The situation of all children in the context of migration is of major concern, given their
greater vulnerability to human rights violations. This is a diverse group including both
children with regular and irregular migration status. Although children in an irregular
migration situation are the most at risk of human rights violations across law, policy and
practice, children with regular migration status7 are also vulnerable to discrimination and
exclusion from basic rights and services. In addition, they also face practical challenges,
such as, inter alia, language barriers and a lack of awareness on the rights that migrants
are entitled to – both on the part of service providers and migrant families. Even with
regular status, migrant families often do not have equal access to social protection
measures, and are at risk of poverty, marginalization, and social exclusion.
Furthermore, migration status is transient, and it is common for children to experience
both regular and irregular migration statuses at different times. Children with regular
migration status are at risk of becoming irregular at a later date, because, inter alia, their
or their parents‟ visa expires or application for international protection is refused. Many
also face irregularity (and thus suffer the immediate threat of deportation) on turning 18,
and may face difficulties in renewing or accessing residence permits at this time.8 On the
other hand, irregular migrant children may also have opportunities to regularize their
*

Throughout this Note, reference to “parents” refers to parent(s) or other primary caregiver(s).

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status, for example by qualifying for regularization after residing in the destination
country for a number of years. Whatever their pathway into irregularity, children in such
situations are particularly vulnerable to human rights violations (see Section II.b).
As noted by the former Special Rapporteur on the Human Rights of Migrants, Jorge
Bustamante, there are two major gaps regarding the protection of the rights of children
affected by migration, regardless of their status. The first gap “relates to the lack of
specific provisions on children in migration laws, policies and programmes”.9 The
second gap concerns public policies aimed at protecting child rights in general (most of
them based on the Convention on the Rights of the Child), which have not yet taken into
account the specific condition and needs of migrant children.10
Against this background, the Committee on the Rights of the Child (CRC Committee) has
chosen the theme The Rights of All Children in the Context of International Migration
for its 2012 Day of General Discussion (DGD) on 28 September 2012. The DGD‟s
overall objective is to promote the rights of all children affected by international
migration through consultation with, and participation of, a wide range of relevant actors.
Specific objectives of the DGD include facilitating the CRC Committee‟s dialogue with
States Parties and developing more comprehensive guidance for the fulfillment of
children‟s rights in the context of migration, regardless of their, or their parents‟,
migration status.11
The purpose of this Background Note is to provide a reference for the key issues that will
be discussed at the DGD. This will include addressing the main lines of concern
mentioned in the Committee‟s Outline for Participants in the 2012 CRC DGD12 under
two major topics: 1) international legal framework on the rights of children in the context
of international migration; and 2) measures to implement the rights of children in
international migration situations at the national level. The Note focuses on: the
international movement of children, including children migrating with their parents, legal
guardians or other caregivers; unaccompanied and separated children; children left behind
in countries of origin; and children born to migrant parents in destination countries. It
does not address children in the context of internal migration, nor children who qualify as
internally displaced persons (IDPs) or refugees.† The scope of the Note is on the “rights
of the child” as per article 1 of the Convention on the Rights of the Child (CRC).‡
II.

Structural Causes of International Migration of Children
a. Why children migrate
Children migrate for diverse reasons and in a variety of ways. The causes of their
movement are not very different to those of adult migration, and it is in this context that
they have usually been considered.13 The extremely unequal distribution of income and
†

The complexity of migration dynamics has led to the conceptualization of different categories of migrants
and the use of specific terminology in the literature (e.g. voluntary migrants, involuntary or forced
migrants, children left behind, etc.). Some of these terms appear in this Note to explain that throughout the
migration process the same children may fall within several different categories. However, migrants rarely
think of themselves under these analytical terms. It is therefore recommended that caution be used before
putting children in the context of migration into “boxes”, which can prevent a comprehensive analysis of
their situation, including an assessment of the extent to which they enjoy all their rights.
‡
“A child means every human being below the age of eighteen years unless under the law applicable to the
child, majority is attained earlier” (Article 1 CRC).

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opportunities within and between sending and receiving areas is one of the key factors
that drives human movement,14 with people migrating from situations of economic
crisis, unemployment, and financial vulnerability.15 Migration represents an increasingly
important livelihood diversification strategy for many households in the world‟s poorest
nations, for example, where one member migrates in order to guarantee support for the
whole family.16 For instance, in rural Guatemala, migration is a survival strategy to cope
with extreme poverty. Parents send adolescents between 13 and 17 years old to Chiapas
(Mexico), where they have better chances to find jobs. These adolescents are expected to
send remittances to support their parents and other family members. 17 According to a
UNICEF report, poverty or socio-economic inequalities in Uzbekistan, compared to
neighboring Kazakhstan, compel many Uzbek children to migrate to Kazakhstan for
work. The majority of children interviewed for the report were living and working on the
streets of small towns and stated that their move was motivated by the absence of
income-generating activities in their countries of origin.18 However, it should be noted
that very poor households lack resources, and have reduced possibilities, to migrate.
Yet it is necessary to go beyond economic factors and consider the often complex social
phenomena that are at the basis of unequal opportunities when analysing the structural
causes of international migration. These phenomena include, inter alia: poverty and lack
of human development; gender inequalities and discrimination; conflict and violence;
political instability, socio-ethnic tensions; bad governance; food insecurity,
environmental degradation, and climate change. As underscored by the Office of the
High Commissioner for Human Rights (OHCHR), human rights abuses (civil, political,
economic, social, and cultural) play a crucial role in the decisions to migrate of both
adults and children.19 Indeed, “the vast majority of migrants have all suffered some kind
of constraint on their rights in their country of origin”.20 South-South migrants,§
including children, are particularly likely to be compelled to migrate because of conflict
and natural disasters.21
Whether the focus is on lack of opportunities, conflict or human rights violations, it is a
reality that many children, just like adults, migrate out of necessity. For example, a study
on patterns of international migration within sub-Saharan Africa highlights that factors
such as rapid population and labour force growth, unstable politics, escalating ethnic
conflict, breakdowns of governments rooted in precarious democratization processes,
persistent economic decline, retrenchment of public sector workers in response to
structural adjustment measures, poverty, environmental deterioration and landlessness all
contribute to migration within the region.22 A study on mobility of children in West
Africa shows that their migration was motivated by the need to search for economic,
educational or professional opportunities, and concludes that if local living conditions
were better and migration did not represent real prospects for improving their lives,
children and adults would not choose to migrate.23
Between 2000 and 2010, the number of international migrants under the age of 20
increased by almost 2 million.24 Family reunification is deemed to be one of the main
causes of the increasing number of both regular and irregular international child
migrants, including unaccompanied and separated migrant children.25 A UNICEF study
on Central American and Ecuadorian children in transit through Mexico to the United
§

The term “South-South migration” is commonly used to refer to migration from one developing
country to another developing country.

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States found that, besides employment, the main reason for migrating was to join their
parents abroad.26 There is also evidence that a great number of migrant children
accompany their parents or caregivers to destination countries in search of better
opportunities.27
Most decisions to migrate are made by individuals based on a complex combination of
free choice and compulsion. Migration is not, per se, a negative experience, nor it is
always associated with vulnerability. The fundamental human right to leave one‟s
country can indeed represent an empowering choice for both children and adults when
they move in the right circumstances and are protected throughout their migratory
journeys.
b) Pathways into irregularity
In addition to the factors mentioned above, irregular migration is also largely a result of
institutional aspects, including migration policies and practices. Migrants become
irregular in different ways: by entering the country of destination in an irregular manner;
by staying in the country after their application for international protection is rejected or
their temporary status expires; by losing their job; by facing obstacles to renew or keep a
regular residence permit, etc. Therefore, while some people decide to migrate irregularly
because of a lack of regular migration channels, others find themselves in an irregular
situation due to administrative barriers or a lack of information. As a child‟s status is
usually linked to those of their parents, children find themselves in an irregular situation
along with them. A number of children are also born in the country of destination to
irregular migrant parents, and inherit their irregular migration status.
Increasingly restrictive migration control mechanisms are gradually limiting
opportunities for regular migration. Selective migration laws and policies (reduction of
available visas, more strict entry and departure regulations) have impeded potential
migrants and their freedom of movement, affecting those with fewer resources
disproportionately.
Similarly, especially within the context of the global economic financial crisis, many
countries of origin and destination are enforcing migration laws more severely,28
including heightening restrictions on legal avenues for migration and employing more
harsh deportation and detention policies.29 In various countries, family reunification
regulations have become more severe, imposing new restrictions that make reunification
more difficult and inaccessible for many.30 Irregular migration, particularly of children
migrating alone, has increased in part due to these obstacles preventing family
reunification.31 Further restrictions on accessing existing regularization mechanisms,
long-term residence status, and citizenship are also being imposed, further increasing the
number of children in an irregular migration situation.32
At the same time, literature on South-South migration notes the likelihood that a high
proportion of South-South migration occurs irregularly. This is due to a combination of
several factors, including, inter alia, strict requirements for regular migration, unclear
immigration rules, the level of bureaucracy and high costs associated with regular
migration applications, weak enforcement of border controls, difficulties in obtaining
travel documents, and large informal employment sectors.33

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In sum, in light of the current economic crisis, it must be stressed that irregular
migration may increase, particularly due to the existence of increasingly restrictive
controls and limited legal avenues for migration (including family reunification) in some
countries of destination, and a rise in unemployment and social exclusion in some
countries of origin.
c. Gender factor in international migration
Over the past few years, issues of gender and migration have received increased attention
by researchers and policy-makers. However, the majority of State migration policies
remain inadequate in addressing gender-specific vulnerabilities.
Research by feminist scholars on international migration34 has elaborated on how gender
roles, relations, and inequalities affect the composition of international migration, as well
as its impacts on countries of origin and destination. Gender is closely intertwined with
migration decisions affecting adult and child migrants. Prevailing gender patterns and
family systems in societies of origin significantly influence the decision to migrate of
men, women, boys, and girls.35 Gender-specific factors also influence migrants‟ social
and economic integration in countries of destination. For migrant children, gender affects
migration choices, trajectories and outcomes, including the ages at which adolescent
boys and girls migrate, and whether they choose to do so autonomously, alone,
accompanied by an adult, or in groups.36
Recent work on child migration from a gender perspective has focused on gender-related
impacts and vulnerabilities throughout the migration process, in countries of origin,
destination, and during migration journeys (for example in relation to culturallydetermined gender roles, education, work, etc.).37 These studies acknowledge the role of
social and cultural structures in shaping gender norms (e.g. the patterns according to
which gender-specific roles are defined in the family, community, and society at large)
and examine the different impacts these can have on the trajectories of boys and girls
who migrate, as well as on those left behind.38 Furthermore, migration of a parent often
entails changes in the previous arrangements concerning the division of care and other
domestic responsibilities within the household.39 Children left behind often face greater
responsibilities, depending on whether the father or the mother has migrated, fulfilling
the corresponding roles. For example, children, particularly boys, may leave school in
order to look for work and support the household. While remittances generally have a
positive impact on girls‟ schooling, migration of a parent can also affect their school
performance when they are expected to take on household chores or care for younger
siblings.40
Work on migration and gender has also focused on the increased feminization of
migration41 and the specific vulnerabilities and risks facing women and girls.42 Gender
norms and violence affect both boys and girls. Many adolescent children migrate to
escape sexual abuse, social stigma, or pressure to marry.43 However, women and girls
often have limited access to information regarding work opportunities and labor-market
conditions in destination countries,44 as well as necessary steps for safe and regular
migration,45 which contributes to a greater vulnerability of female migrants at all stages
of the migration process.46 Furthermore, migration policies that are discriminatory often
have the effect of limiting regular migration channels for women and girls, resulting in
their marginalization to the most vulnerable labour sectors or as dependents of male
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migrants. These circumstances contribute to the compulsion to resort to migration
through smuggling and trafficking,47 exposing women and girls to violence and abuse
during their migration journey, as well as in countries of destination.48
While for a large percentage of female migrants a primary motivating factor is to join
their parents or spouse,49 a significant number of women and girls migrate on their own
or as heads of households in search of work. Women and girls often migrate as
agricultural workers, domestic workers, carers of the elderly, sex workers, entertainers,
and other occupations that are generally undervalued and characterized by the worst
working conditions regarding remuneration and legal protection. The Committee on
Migrant Workers has noted that the vast majority of domestic workers are women and
girls who are reportedly at greater risk of certain forms of exploitation and abuse.50
According to the Committee on the Elimination of Discrimination against Women,
“gendered notions of appropriate work for women result in job opportunities that reflect
familial and service functions ascribed to women or that are in the informal sector. Under
such circumstances, occupations in which women dominate are, in particular, domestic
work or certain forms of entertainment. In addition, in countries of destination, such
occupations may be excluded from legal definitions of work, thereby depriving women
of a variety of legal protections.”51 Working predominantly in largely unregulated
occupations, women and girls are particularly vulnerable to exploitation and abuse by
employers. For example, it can be difficult to obtain binding contracts concerning terms
and conditions of work in such occupations, often resulting in long hours being worked
without overtime payment.
It is necessary to take into account the different experiences of boys and girls throughout
the migration process, as well as the multi-faceted impacts of migration on social and
gender structures. Analyzing experiences of gender is imperative to understanding the
different situations and motivations that drive boys and girls to migrate, as well as their
migration trajectories. A gender perspective is key to assessing the impact of migration
on children and their rights, and developing policy accordingly, since gender roles,
relations, and inequalities influence the reasons as well as the outcomes of their
migration.
III.

International Framework on the Rights of Children in International Migration
a. International human rights framework, including regional and other pertinent
instruments
Although States have the sovereign power to control their borders and formulate
migration policies, they also have a duty to respect and ensure the human rights of
migrants while enacting and implementing immigration policies and laws. States are
bound to comply with the international treaties that they have ratified or acceded to. There
is a large body of international law that obligates States to protect children‟s rights in the
context of international migration.
International human rights instruments with provisions relevant to the protection of migrants
 Universal Declaration of Human Rights (UDHR) (1948)
 International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966)
 International Covenant on Civil and Political Rights (ICCPR) (1966)
 Convention on the Elimination of All Forms of Racial Discrimination (CERD) (1966)
 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and

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




its Optional Protocol (1979)
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT) (1984)
Convention on the Rights of the Child (CRC) (1989) and its three Optional Protocols (2000;
2000; 2011)
International Convention on the Rights of All Migrant Workers and Members of Their Families
(CMW) (1990)
Convention against Transnational Organized Crime (UNTOC) (2000) and two of its three
supplementing Protocols (2000)

Regional human rights instruments with provisions relevant to the protection of migrants
 European Convention on Human Rights with its Protocols (1950)
 American Convention on Human Rights with its Protocols (1969)
 African Charter on Human and Peoples‟ Rights (1981)
 African Charter on the Rights and Welfare of the Child (1990)
ILO Conventions and Recommendations52
 Migration for Employment Convention, 1949 (No.97)
 Migration for Employment Recommendation, 1949 (No.86)
 Minimum Age Convention, 1973 (No.138)
 Migrant Workers Convention, 1975 (No.143)
 Migrant Workers Recommendation, 1975 (No.151)
 Worst Forms of Child Labor Convention, 1999 (No.182)
 Convention on Decent Work for Domestic Workers, 2011 (No. 189)

Particularly relevant to the situation of children in the context of migration are: the
Convention on the Rights of the Child (CRC) and its three Optional Protocols; the
International Covenant on Economic, Social and Cultural Rights (ICESCR); the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) and its Optional Protocol; and the Convention on the Rights of All Migrant
Workers and Members of Their Families (CMW).
The Convention on the Rights of the Child (CRC) with its three Optional Protocols53 is
the most comprehensive and widely ratified54 international instrument on the rights of the
child. The treaty enshrines a set of universal rights that constitute the minimum standards
that States must ensure for every child within their jurisdiction. These rights must be
guaranteed without discrimination of any kind, including, but not limited to, on the
grounds of age, sex, birth, social origin, nationality, or status of the child‟s parents or
legal guardians. In its General Comment No. 6 Treatment of unaccompanied and
separated children outside their country of origin, the CRC Committee stated, “the
enjoyment of rights stipulated in the Convention is not limited to children who are
nationals of a State Party and must therefore, if not explicitly stated otherwise in the
Convention, also be available to all children – including asylum-seeking, refugee and
migrant children – irrespective of their nationality, immigration status or statelessness”.55
Other treaty bodies and regional human rights courts have made similar statements.56
States Parties to the CRC have a duty to ensure that the treaty‟s principles and standards
are fully reflected and given legal effect in relevant domestic legislation (article 4). In all
actions concerning children, States are to be guided by the overarching principles of nondiscrimination (article 2); the best interests of the child (article 3); the right to life,
survival and development (article 6); and the right of the child to express his or her views
in all matters affecting him or her, and to have these views taken into account (article 12).
Respecting the key CRC principles outlined below is critical for the protection and
fulfillment of the rights of children in the context of migration.
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Non-discrimination (article 2 (1)):
The principle of non-discrimination provides that all rights contained in the Convention
are applicable “to each child within their [States Parties‟] jurisdiction without
discrimination of any kind”.57 This principle thus, “prohibits any discrimination on the
basis of the status of a child as being unaccompanied or separated, or as being a refugee,
asylum-seeker or migrant”.58 It must be fully applied and adhered to in any policy,
decision, or action related to migrant children throughout the migration process,
irrespective of the child‟s migration status. The meaning of this article has been clarified
by the CRC Committee in its General Comment No. 6 Treatment of unaccompanied and
separated children outside their country of origin, where the Committee affirmed that:
State obligations under the Convention apply within the borders of a State,
including with respect to those children who come under the State‟s jurisdiction
while attempting to enter the country‟s territory. Therefore, the enjoyment of
rights stipulated in the Convention is not limited to children who are citizens of a
State Party. If not explicitly stated otherwise in the Convention, the rights must
be guaranteed to all children – including asylum-seeking, refugee and migrant
children – irrespective of their nationality, immigration status or statelessness.59
The CRC Committee has also noted that the principle of non-discrimination requires
measures
to address possible misperceptions and stigmatization of unaccompanied or
separated children within the society. Policing or other measures concerning
unaccompanied or separated children relating to public order are only
permissible when they comply with certain conditions. The measures should be:
based on the law; entail individual rather than collective assessment; comply
with the principle of proportionality; and represent the least intrusive option. In
order not to violate the prohibition on non-discrimination, such measures can,
therefore, never be applied on a group or collective basis.60
Best Interests of the Child (article 3 (1)):
This principle recognizes that in “all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration”. The
CRC Committee has stated that
a determination of what is in the best interests of the child requires a clear and
comprehensive assessment of the child‟s identity, including her or his
nationality, upbringing, ethnic, cultural and linguistic background, particular
vulnerabilities and protection needs. Consequently, allowing the child access to
the territory is a prerequisite to this initial assessment process. The assessment
process should be carried out in a friendly and safe atmosphere by qualified
professionals who are trained in age- and gender-sensitive interviewing
techniques.61
Age assessment procedures should be carried out in a child-friendly manner and in
accordance with the best interests of the child. A best interests determination must be
documented at every stage of the process in preparation for any decision that impacts the
child‟s life.62 In decisions regarding matters of family unity, the child‟s best interests
10

must be a paramount consideration.63 Furthermore, immigration and border control
justifications should not override the child‟s best interests.64
Right to life, survival and development (article 6):
The right to life, survival and development has been interpreted to encompass and go
beyond physical survival, to include the development of the child “to the maximum extent
possible” (article 6 (2)). In regard to migrant children, this right must be respected and
ensured in migration procedures that could lead to, for example, the repatriation of
children to their countries of origin. Decisions to repatriate or provide residence in the
destination country can significantly impact a child‟s life and development. Moreover,
issues raised in regard to the best interests of the child, such as the health conditions in the
country of origin, are often linked to the child‟s right to survival and development.
Right to express views, respect for the views of the child, and right to be heard (article
12):
Article 12 of the CRC recognizes the fundamental right of every child to be heard. This
principle is key to due process safeguards (see chapter VI). The CRC Committee has
adopted General Comment 12 The right of the child to be heard (2009) which provides
further guidance on the interpretation of this principle. Accordingly, the views expressed
by children should be considered in decision-making processes, particularly with regard
to assessing what is in the child‟s best interests. Efforts must also be made to recognize
the right of children affected by migration to understand proceedings and to express their
views. This implies the need for competent and child-friendly interpretation in migration
proceedings. Furthermore, this right requires that the child be informed about the matters,
options and possible decisions to be taken as well as the consequences of these decisions.
Such information should be provided by those who are responsible for hearing the child
and by the child‟s parents or guardian.65
Since its entry into force in 1990, the CRC has served as catalyst for legislative reform,
constitutional amendments, and policies aimed at protecting children‟s rights. It has also
helped to eliminate diverse forms of de jure and de facto discrimination, to promote
gender equality, and to establish more effective child protection systems and
institutions.66 Despite the significant impact of the CRC to date, the treaty has not yet
been sufficiently applied or promoted amongst policy-makers with regard to protecting
the rights of children in the context of migration. Some States Parties also continue to
have declarations or reservations regarding the principle of non-discrimination, with the
interpretation that it does not confer the same rights to foreign children as citizen
children.67 On the contrary, the CRC provides both a comprehensive catalogue of civil,
political, social, economic and cultural rights, and clear principles regarding their
application to all children, regardless of migration status. Thus, as a legally-binding
instrument with virtually universal ratification, the CRC, as the most relevant
international child rights instrument, has the potential to play a key role in the protection
of children‟s rights in the context of migration. This potential should be fully explored by
policy-makers and stakeholders in the future, particularly in view of the absence of
systemic coherence in the existing international framework applicable to children in the
context of migration.
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
underlines States‟ obligations to take steps to progressively realize the full enjoyment of
economic, social and cultural rights for every person within the State‟s jurisdiction.68
11

The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) and its Optional Protocol apply to all women, including migrant girls and
women, as well as those left behind in countries of origin. CEDAW recognizes that all
women, including migrants, should have equal access to employment, as well as fair and
equitable remuneration and benefits (see CEDAW articles 10, 11 and 16).69 The CRC and
CEDAW are mutually reinforcing and complementary. Together they oblige States to
maintain a child and gender perspective in migration laws and policies in countries of
origin, transit and destination.
In addition to these instruments, the International Convention on the Rights of All
Migrant Workers and Members of Their Families (CMW) is the only international
human rights treaty that specifically protects the rights of all migrant workers and
members of their families, including migrant children. It affirms that due regard shall be
paid not only to labour needs and resources, but also to the social, economic, cultural, and
other needs of migrant workers and members of their families and their communities.
Several provisions of the CMW protect specific rights of the children of migrant workers.
Article 29, for example, provides for the right of all children of migrant workers to a
name, to birth registration, and to a nationality. Article 30 protects the basic right of
children of migrant workers to access education on the basis of equality of treatment with
nationals of the State concerned.
This international normative framework is complemented by regional instruments. These
include, inter alia, the European Convention on Human Rights, the American
Convention on Human Rights (and other basic documents pertaining to human rights in
the American system),70 the African Charter on Human and Peoples’ Rights, and the
African Charter on the Rights and Welfare of the Child. Their respective
mechanisms are: the European Court of Human Rights, the European Committee on
Social Rights, the Inter-American Court and Commission on Human Rights, and the
African Court of Justice and Human Rights. These mechanisms have developed an
important body of jurisprudence and case law (see below Section III.b and Annex 2),
based on the rights and obligations recognized in the above regional instruments.
The European Convention on Human Rights entered into force in 1953 and all Council of
Europe Member States are party to the treaty, with any new Members expected to ratify
it promptly. The treaty established the European Court of Human Rights, where both
individuals and States can file their claims of rights violations. Some fifteen protocols to
this Convention have been opened for signature on a wide range of issues, including civil
imprisonment, free movement, and expulsion of foreigners.
The American Convention, also known as the Pact of San José, Costa Rica, entered into
force in 1978. It establishes the general obligation of States Parties to uphold the human
rights set forth in the treaty to all persons under their jurisdiction, and to adapt their
domestic laws in accordance with its provisions. The majority of States members of the
Organization of American States have ratified this Convention. An additional Protocol to
the American Convention, which deals with Economic, Social, and Cultural Rights (more
commonly known as the Protocol of San Salvador) came into effect in 1999. The
Protocol's provisions cover such areas as the right to work, the right to health, the right to
food, and the right to education. Individuals can bring their cases of human rights
violations under the Convention and its Protocols to the Inter-American Human Rights
System.
12

As noted above, several instruments on human rights were adopted in Africa to reflect
the continent‟s history, values and traditions. The African Charter on Human and
Peoples' Rights came into effect on 21 October 1986 under the aegis of the Organization
of African Unity (now African Union). The Charter recognizes most of the universally
accepted civil and political rights, as well as certain economic, social and cultural rights.
It is unique in that it recognizes both the rights of individuals and collective rights.
Furthermore, it also recognizes duties incumbent on individuals, such as those towards
the family and State security. The African Charter on the Rights and Welfare of the Child
(Children‟s Charter) was also adopted under the OAU. It entered into force in 1999, and
has been ratified by most African States. The Children‟s Charter is a comprehensive
document similar to the CRC that sets out rights and defines universal principles and
norms regarding children. It reflects African cultural values and experiences, and further
recognizes children‟s responsibilities.
A number of specific international instruments further complement the international
normative framework. For example, maritime law is also applicable in cases of the
interception and rescue of migrant children at sea, and should be applied in line with
international human rights, as well as humanitarian and refugee law obligations.
b. Role and jurisprudence of treaty bodies and regional human rights systems
International human rights treaty bodies and regional human rights mechanisms play an
important role in developing the jurisprudence on the rights of children, including those in
the context of migration. The treaty bodies are developing a set of relevant
recommendations and standards through their General Comments and Concluding
Observations issued upon the periodic review of States Parties‟ reports.71
The CRC Committee adopted General Comment No. 6 (2005) Treatment of
unaccompanied and separated children outside their country of origin. Other General
Comments (G.C.) on topics relevant to children‟s rights in the context of migration
include: The aims of education (G.C. 1, 2001); Adolescent health (G.C. 4, 2003);
Implementing child rights in early childhood (G.C. 7, 2005); Children’s rights in juvenile
justice (G.C. 10, 2007); The right of the child to be heard (G.C. 12, 2009); and The right
of the child to freedom from all forms of violence (G.C. 13, 2011).
There are several pertinent General Comments issued by other human rights treaty bodies,
including: Migrant domestic workers (G.C. 1 issued by CMW); The right to education
and the right to the highest attainable standard of health (G.C. 13, 14 and 20 issued by
CESCR, as well as General Recommendation (G.R.) 30 issued by CERD); and Women
migrant workers (G.R. 26 issued by CEDAW).
At the regional level, both the European and Inter-American Courts of Human Rights
assist States in identifying implementation gaps and necessary measures at the national
level. The case law helps to establish the normative content of human rights and gives
concrete meaning to individual rights and States‟ obligations.
Significant cases have been decided by the European Court of Human Rights (ECtHR) in
relation to children in the context of migration, for the most part in relation to article 3
(the prohibition of torture and inhuman and degrading treatment) and article 8 (the right
to respect for private and family life) of the European Convention on Human Rights. For
13

example, the “Tabitha case”, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium
(Application No. 13178/03, 12 October 2006), involved a five-year-old Congolese girl,
who travelled with her uncle, a Dutch citizen, via Belgium, to join her mother in Canada.
The girl was detained on arrival on Belgium, alone and without someone assigned to look
after her, for almost two months in a center that had initially been intended for adults. No
measures were taken to ensure that she received proper counseling and educational
assistance from a qualified person. She was then deported to Congo, again without
suitable accompaniment. The Court held that Tabitha‟s rights under article 3 and article 8
had been violated by her detention and by her deportation, and that Belgium was under an
obligation to facilitate the reunification of the family. A number of recent cases have also
found detention of families with young children in closed centres to amount to a violation
of Article 3 (see Annex 2 for further details). Other ECtHR judgments relating to
violations of article 8 include Rodriguez Da Silva and Hoogkamer v. the Netherlands
(Application No. 50435/99, 31 January 2006), where the Court granted an irregular
migrant mother (of a Dutch citizen child) the right to regularize her status while taking
into consideration the right to respect for private and family life and the child‟s best
interests to remain in the Netherlands with her Dutch father. In Osman v. Denmark
(Application No. 38058/09, 14 June 2011), the Court ruled that the Danish authorities
were in violation of article 8 by denying a residence permit to a non-resident child who
had spent many years regularly residing in Denmark and whose family was still resident.
The Court awarded damages as it found that the best interests of the child had not been
sufficiently taken into account, and indicated that her residence status should be
reinstated.72 The Court has also issued important judgments in relation to extra-territorial
application of ECHR obligations. For example, in Hirsi Jamaa and Others v. Italy
(Application no. 27765/09, 23 February 2012), the Court considered the question of
whether the prohibition of collective expulsion, “applies to a case involving the removal
of aliens to a third State carried out outside national territory”, (article 4, Protocol 4 to the
European Convention on Human Rights). Hereby the Court extended the prohibition of
collective expulsion to extra-territorial actions. In this regard, it condemned Italy‟s
practice of "pushing back" boats of migrants intercepted in the open sea to the shores of
North Africa. The Court also affirmed the duty of States to uphold human rights aboard
ships flying their flag in international waters. and States‟ duty to protect migrants from
being disembarked in countries where they risk suffering serious harm.
In addition to the case law (see Annex 2 for further details), the Inter-American Court of
Human Rights provides good legal analyses on specific issues with regard to children‟s
rights in the context of migration through Advisory Opinions. The Inter-American Court
stated in its Advisory Opinion on the Juridical Condition and Human Rights of the Child
(OC-17/2002) that, inter alia, children are subjects entitled to rights, not only objects of
protection. Also, according to the Court, the phrase “best interests of the child”, set forth
in CRC article 3, entails that children‟s development and full enjoyment of their rights
must be considered the guiding principle to establish and apply provisions pertaining to
all aspects of children‟s lives. The family is furthermore the primary context for
children‟s development and exercise of their rights, and the State must support and
strengthen the family through the various measures it requires to best fulfill its natural
function. Lastly, in judicial or administrative procedures where decisions on the rights of
children are adopted, the principles and rules of due process must be respected.
In its Advisory Opinion on the Juridical Condition and Rights of Undocumented Migrants
(OC-18/03), the Inter-American Court stated that, inter alia, the general obligation to
14

respect and guarantee human rights binds States, regardless of any circumstance or
consideration, including the migration status of a person. The right to due process of law
must be recognized as one of the minimum guarantees that should be offered to any
migrant, irrespective of migration status. Also, the broad scope of the preservation of due
process encompasses all matters and all persons, without discrimination. Additionally, the
migration status of a person cannot constitute a justification to deprive him of the
enjoyment and exercise of human rights, including those of a labor-related nature. This
Advisory Opinion constitutes a significant development in international law. The Court
further found that the principles of equality and non-discrimination are widely recognized
in international and regional human rights instruments and enjoy the status of jus cogens,
or peremptory human rights norms. As clarified by the Court, “the obligation to respect
and ensure the principle of the right to equal protection and non-discrimination is
irrespective of a person‟s migratory status in a State.”
On 6 July 2011, the governments of MERCOSUR requested an Advisory Opinion of the
Inter-American Court of Human Rights on the protection of the rights of migrant children
in the Inter-American Human Rights System. This unprecedented initiative has been
supported by the Institute for Public Policies in Human Rights, and taken because the
human rights situation of children is of utmost importance for the effective fulfillment of
human rights in this region.73 The Advisory Opinion is currently pending.
The African Court of Justice and Human Rights, established in 2008, has not yet
developed any case law.74 The African Commission on Human and Peoples‟ Rights
receives communications submitted by States Parties to the African Charter, as well as
individuals or groups of people, regarding violations of the human rights that are
guaranteed by the Charter. The Commission has developed its jurisprudence on the
protection of human rights in Africa, including with regard to African migrants. For
example, it has declared that mass expulsions constitute a specific threat to human rights,
and that conditions in migration-related detention, as well as the varied degrading and
inhuman treatments suffered by detainees, constitute a violation of article 5 of the African
Charter.75
Jurisprudence at the national level also plays an important role in evaluating the
implementation of international, regional and domestic legislation to protect migrant
children‟s rights. While there is not yet case law from the African Court of Justice and
Human Rights, nor a regional court for the Asian region, national courts in these regions
have ruled on cases relating to irregular migrants, for example, on the right to associate in
trade unions in South Korea. In South Africa, the regional High Court for Pretoria ruled in
2005 that the legal mechanisms for the protection of South African children found in the
Constitution and the Child Care Act of 1983 apply equally to unaccompanied foreign
children within South Africa‟s borders (see Annex 2 for further details and examples).
c. International cooperation
By its very nature, international migration has an impact on the relations between
countries of origin, transit, and destination. To date, there is no comprehensive global
framework for managing international migration. However, there are numerous bilateral,
regional, and multilateral agreements and fora dealing with migration-related issues,
including the rights of migrants and their families. There are also a number of
authoritative reference points that can serve as a basis for a comprehensive discussion
15

about global migration management. The International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families calls, in article 64,
for cooperation and consultation between States Parties with a view to promoting sound,
equitable and humane conditions in connection with international migration.
The Program of Action of the International Conference on Population and Development
(ICPD), held in 1994 in Cairo, devotes chapter X to international migration, providing a
comprehensive set of objectives in relation to documented and undocumented migrants.
The Program of Action emphasizes the basic rights of migrants, irrespective of their
legal status, and recognizes the benefits of international migration for the host country.
A major goal of the ICPD Program of Action is to encourage cooperation and dialogue
between countries of origin and destination in order to maximize the benefits of
migration and increase development opportunities. The particular vulnerabilities and
special needs of children, women, and the elderly in the context of international
migration are also mentioned in this document. All Governments, particularly those of
receiving countries, are reminded that “special efforts should be made to enhance the
integration of the children of long-term migrants by providing them with educational and
training opportunities equal to those of nationals”.76 They should also be allowed to
exercise an economic activity, and the naturalization of those who have been raised in
the receiving country should be facilitated. Also, “[c]onsistent with article 10 of the
Convention on the Rights of the Child and all other relevant universally recognized
human rights instruments, [States] must recognize the vital importance of family
reunification and promote its integration into their national legislation in order to ensure
the protection of the unity of the families of documented migrants”[emphasis added].77
However, apart from a mention of effective sanctions against, “those who engage in any
form of international traffic in women, youth and children”,78 the situation and rights of
undocumented migrant children are absent in the Cairo Program of Action.
Bilateral arrangements on international migration are a useful means of responding to
specific issues. These arrangements can also ensure that international migration takes
place in accordance with established rules and conditions that are mutually beneficial to
both States. For instance, bilateral agreements may deal with the return and readmission
of persons without authorization to stay in countries of destination or transit. It is
important to note that article 67 of the CMW requests States Parties to the Convention to
cooperate, “in the adoption of measures regarding the orderly return of migrant workers
and members of their families to the State of origin when they decide to return or their
authorization of residence or employment expires or when they are in the State of
employment in an irregular situation”.
The drive towards economic and political integration has led to formal regional
agreements promoting the free movement of citizens and the harmonization of migration
management policies. Such agreements facilitate human movement under specific
conditions, and have been part of the regulatory framework of common market or free
trade agreements. For instance, MERCOSUR Member States have signed a series of
agreements based on the principles of equal treatment and non-discrimination that also
address the status of irregular migrants from this sub-region. These agreements explicitly
recognize the right of all children to education, regardless of their or their parents‟
migration status (see Annex 2 for more details on MERCOSUR).
Regional Consultative Processes (RCPs) are emerging as a useful mechanism to carry
forward cooperative efforts in migration management. RCPs offer participating States
16

the opportunity to share experiences with other States of the same geographic region,
and typically revolve around specific issues, such as irregular migration, asylum, or
trafficking in persons. Each process brings together relevant governments, international
organizations, and some civil society partners. Organizations such as International
Centre for Migration Policy Development (ICMPD), International Organization for
Migration (IOM), UNITAR79 and UNHCR have provided substantive technical support
to some RCPs.
Multilateral cooperation has also increased over the past few years. The 2010 SecretaryGeneral Report on International Migration and Development indicates that “since 2006,
as a result of the High-Level Dialogue on International Migration and Development,
there has been growing engagement by the United Nations System and other
international organizations”80 in this field. The Global Migration Group (GMG) is an
inter-agency mechanism bringing together 15 United Nations entities and the
International Organization for Migration (IOM) to promote the wider application of all
relevant international and regional instruments and norms relating to migration.81 The
GMG has undertaken a number of initiatives to show Member States to what extent “the
benefits of international migration hinge on respect for the human rights of migrants”.
The Group has furthermore identified the challenges faced by different groups of
migrants, including migrant children.82 There are numerous multilateral projects relevant
to the situation of children in the context of migration. For instance, the Joint Migration
and Development Initiative is being implemented by the United Nations Development
Programme in partnership with UNHCR, the United Nations Population Fund, ILO, and
IOM. This Initiative supports civil society organizations and local authorities in
implementing projects that maximize the development impacts of international
migration. Among the objectives of the projects funded by this Initiative are providing
support to families that are separated through migration and raising awareness about the
dangers of trafficking in persons and irregular migration, while promoting the protection
of migrants. Furthermore, as part of the Millennium Development Goals Achievement
Fund, there are 14 projects on youth, employment and migration being implemented by
various GMG Member Agencies and other organizations. Project activities include
generating decent work for youth and creating sustainable livelihoods as an alternative to
migration.83
The Global Forum on Migration and Development (GFMD) is the largest and most
comprehensive global platform for dialogue and cooperation on international migration
and development.84 When the GFMD was first established, children affected by
migration and the protection of their rights were not a priority concern. However, the
rights of migrants and their families, as well as irregular migration, figured among the
topics discussed by both government representatives and civil society stakeholders at
recent GFMDs (especially at the GFMD 2010 held in Puerto Vallarta, Mexico).85
Furthermore, it is worth noting that the notion of “shared responsibility” was first
introduced at the GFMD held in Manila in 2008 in a Joint Civil Society Declaration on
Migration, Development and Human Rights. This declaration calls on governments to
institute a functioning international system based on migration and development policies
that guarantee the human rights of migrants. It also calls on States to ensure that
governments in developing countries refrain from adopting policies or enter into
agreements, such as free trade agreements, with countries in more developed States that
increase forced migration of their populations. Additionally, States are called upon to
prohibit multilateral or bilateral agreements that do not fully respect and protect the
17

human rights of migrants.86 The literature reveals diverse views on this
conceptualization of “shared responsibility” and this term has not yet been formally
endorsed nor fully implemented by governments. However, the key message to be
retained from the above paragraphs is that, at present, there are numerous opportunities
for States to engage in dialogue in regard to their shared responsibility to realize the
human rights of children in the context of international migration.
IV.

Human Rights Challenges Affecting Children in the Context of International
Migration
The vast majority of States have ratified or acceded to the core international and regional
human rights treaties. Nevertheless, in practice there are large discrepancies between
human rights norms and their implementation, as States Parties fail to comply with their
obligations. Furthermore, children in the context of migration face a double invisibility.
On the one hand, there is a general absence of a child-rights perspective, including the
best interests principle as per article 3 of the CRC, in migration laws, policies and
actions concerning children. On the other hand, children affected by migration are
invisible within policies and systems for protecting children.87 In many countries of
origin, transit and destination, social policies and programs do not take into account the
conditions and needs of children affected by migration. This contributes to the denial of
their rights, enables discrimination, family separation and exploitation, and makes boys
and girls in the content of migration virtually invisible to policy-makers and other dutybearers.
This section provides a broad, although non-exhaustive, overview of the main human
rights challenges affecting children in the context of international migration that should
be addressed further at the CRC DGD 2012. As pointed out in the introduction, many of
these challenges affect both children with regular and irregular migration status (see in
particular Section IV.h and IV.i below).

a.

Criminalization of irregular migration
In 2010, Jorge Bustamante (the former Special Rapporteur on the Human Rights of
Migrants), Abdelhamid El Jamri (Chair of the Committee on the Protection of the Rights
of All Migrant Workers and Members of Their Families), and Raquel Rolnik (Special
Rapporteur on Adequate Housing Third Committee) appeared before the UN General
Assembly Third Committee. Here, they stated that, “over the past two years the trend
towards the increasing criminalization of irregular migration had continued, with
migrants facing racist attacks, abuse and appalling housing conditions throughout the
world”[emphasis added].88 Evidence shows that deportation and detention policies have
become harsher in recent times, which is partly due to exacerbated fears about migration
in the context of the economic crisis. Raids on migrants and abuses at borders are not
uncommon.89 A particularly worrying practice is the deportation of migrant parents of
children born in destination countries, who are subsequently placed in foster care.90 This
atmosphere of suspicion and hostility towards migrants in an irregular situation has
serious implications for the protection of their human rights. Hostile terminology, for
example where irregular migrants are referred to as “illegal”, can lead to discriminatory
behaviour, hinder public acceptance of migrants, and exacerbate their social exclusion.

18

In some destination countries, an increase has been noted in racist and xenophobic
behavior and acts against migrants, including in the form of physical violence and hate
speech by political groups and officials.91 Xenophobia and violence directed at migrants
severely exacerbate the vulnerability of children affected by migration in transit and
destination countries and are detrimental to their well-being. Addressing negative
perceptions of migrants within host communities, including in the media, is essential for
promoting integration.
Human rights authorities have repeatedly emphasized that irregular migration should not
be criminalized.92 The Working Group on Arbitrary Detention has expressed the view that
“criminalizing illegal entry into a country exceeds the legitimate interest of States to
control and regulate illegal immigration”.93 The Special Rapporteur on the Human Rights
of Migrants, Francois Crépeau, in his 2012 report to the Human Rights Council, noted
that, “it is important to emphasize that irregular migrants are not criminals per se, and
should not be treated as such”.94 The High Commissioner for Human Rights has stated
that, “crossing a border or residing in a country without the legal permission to do so
should at most be considered an administrative offence”.95 Criminalizing irregular
migration tends to have a disproportionately negative effect on the rights and well-being
of the migrants involved. Additionally, most policies of criminalization fail to reach their
objective of deterrence. In May 2011, a Global Roundtable organised by OHCHR and
UNHCR on the issue of alternatives to migration-related detention concluded that there is
no empirical evidence that detention deters irregular migration, despite the often
significant cost to States of maintaining such a detention infrastructure.96
Criminalization of irregular migration is evident in many countries where migration
management is framed around issues of risk and border control, law enforcement, security
threats, and an expulsion paradigm. The High Commissioner for Human Rights has
expressed concern regarding the trend to penalize those who engage with irregular
migrants, which sends the unacceptable message that contact with migrants is a risk to be
avoided.97 Another major concern is that public officials and service providers such as
healthcare personnel, teachers, or the police, who perform key functions in relation to
protecting the human rights of migrant children, are increasingly placed under a “duty to
denounce” the presence of irregular migrants, including children, to immigration
enforcement authorities. Private individuals such as landlords can be at risk of criminal
penalties for renting housing to irregular migrants. Also, non-governmental organisations
can be subject to punitive fines and even criminal charges for providing humanitarian or
legal assistance to such migrants.
b.

Lack of human rights focus in international cooperation
As described in Section III.c, international cooperation through bilateral, regional, or
multilateral agreements can contribute to the management of international migration
according to established rules and for the mutual benefit of States concerned. However,
despite the existence of these agreements, many governments are still developing
migration strategies in isolation and based upon domestic needs. Currently there is no
global consensus on how to address the complex dynamics of international migration.
Further, much of the existing international cooperation is characterised by a focus on
migration control, rather than on protecting and promoting human rights. Rights-based
bilateral cooperation can be useful in ensuring the welfare of migrants abroad, including
19

migrant children. For example, the Government of the Philippines has been very active in
securing the rights of Filipino workers abroad and has concluded bilateral agreements
with the most common destination countries to protect their rights and those of their
families (see Annex 2 for more details on the case of the Philippines). However, concerns
have often been raised by civil society and other stakeholders that bilateral agreements,
particularly readmission agreements, can operate without sufficient human rights
safeguards. The lack of safeguards can lead to serious protection gaps, for instance in the
case of irregular and unaccompanied or separated migrant children.
Similarly, concerns have been raised that the primary or even sole objective of many
Regional Consultative Processes is deterrence and containment of migration, rather than
concern for the protection of human rights, including the rights of the child. Children
affected by migration have not been at the centre of these processes, and only two RCPs
have addressed child-related issues. In the Bali Process,98 children are referred to
exclusively as victims of trafficking; in the Puebla Process,99 children are mentioned in
relation to the need to “strengthen respect for the human rights of migrants regardless of
status with special attention to vulnerable groups such as women and children”.100
c. Absence of consideration of best interests of the child in migration situations
To be in compliance with the CRC, migration policies must first meet two essential
prerequisites. First, all policies, practices, and decisions adopted in relation to the entry,
stay, or return of a child and/or of his or her parents must be determined by the principle
of the best interests of the child, as per article 3 CRC. Second, with regard to
unaccompanied and separated migrant children, there must be a procedure for
determining the best interests of the child, to be routinely applied in every one of those
cases.
Yet, the best interests of the child are largely absent from migration decision-making. In
migration-related decisions, including review of migration and international protection
applications, as well as implementation of migration control policies, such as arrest,
detention, deportation and restrictions on access to basic rights, the best interests of the
child are rarely considered, and even at times disregarded. Even in decisions regarding
family unity, when according to the CRC the best interests of the child should be
paramount,101 these are not systematically assessed, if at all.
It is also important to note that while reference is sometimes made to the best interests of
the child in migration-related decision-making, this does not always reflect a proper
evaluation of the best interests of the child or a formal Best Interests Determination (BID)
Procedure. For example, detention of children is sometimes justified by the best interests
of the child, stating that it is best for them to be with their parents, without properly
considering alternative measures of detention or what would truly be best for the child.102
To date, most States do not have in place a BID Procedure. The BID is a formal process
with specific procedural safeguards and documentation requirements, whereby a decisionmaker is required to weigh and balance all relevant factors of a particular case.
Appropriate weight should be given to the rights and obligations enshrined in the CRC
and other human rights instruments. All relevant authorities and professionals that come
into contact with children in the context of migration should apply the best interests
principle as a primary consideration in all their actions.103 The objective is to reach a
comprehensive decision that best protects the rights of the child in question.104 The BID is
20

therefore the most important method for ensuring respect, protection, and fulfilment of
the rights of migrant children,105 and should be applied in the formulation of migration
laws and policies, as well as during migration procedures.
The CRC Committee has suggested that States should set up a clear process at the
national level to consider and determine what constitutes the best interests of the child on
an individual and case-by-case basis, particularly in instances of unaccompanied and
separated children and repatriation procedures.106 The CRC Committee has affirmed that
a BID requires a clear and comprehensive assessment of the child‟s identity, including:
nationality, upbringing, ethnic, cultural and linguistic background, particular
vulnerabilities, and protection needs. Allowing the child access to the territory is a
prerequisite to this initial assessment process. Qualified professionals, who are trained in
age- and gender-sensitive interviewing techniques, should carry out the assessment
process in a child-friendly and safe environment.107
Finally, a durable solution should be determined for every unaccompanied and separated
child on the basis of an individual assessment of the best interests of the child.108 This
assessment should address all protection concerns, take into account the child‟s views,
and, wherever possible, lead to overcoming the situation of a child being unaccompanied
or separated.
d.

Restrictions on the right to family life and restrictive family reunification policies
The right to family, which includes family life and the principle of family unity, is
protected by international human rights law and humanitarian law. There is universal
consensus that, as the fundamental unit of society, the family is entitled to respect,
protection, assistance, and support. A child‟s right to family life is established in the CRC
(preamble and articles 3, 7, 8, 9, 10, 16, and 18). Article 9 obliges States to ensure that
children are not separated from their parents against their will, except where competent
authorities subject to judicial review determine that such separation is necessary for the
best interests of the child. The right to family has an important protective function for
children in the context of migration, particularly for unaccompanied and separated
children, and is relevant in admission, detention, and expulsion procedures.109 It should be
noted, however, that the CMW grants the right to protection of the family and to family
reunification only in relation to migrant workers in a regular situation (article 44).
The right to family may be severely affected in the context of international migration.
Children born in destination countries to irregular migrant parents may be denied their
right to family life due to the deportation of one or both parents. At the same time,
children and adolescents often migrate in precarious and irregular circumstances in order
to reunite with their parents, often being prevented from doing so by immigration control
policies. The former Special Rapporteur on the Human Rights of Migrants, Jorge
Bustamante, has recommended that countries of origin and destination develop strategies
to ensure family reunification within a reasonable time frame.110
Some States seek to fulfill their duties towards children by separating families, when it is
not in the child‟s best interests (see Section IV.c above). For example, in Italy, according
to the law, children cannot be deported.111 However, in many cases, deportation of
individual parents is pursued nonetheless, leading to separation of the family or the child
in effect being forced to leave the country with their parents. In the UK, there have been
21

cases where authorities have fulfilled their duty to provide housing to children in need in
their area by separating children from their parents and accommodating only the
children.112 In this context, families in an irregular situation are at greater risk of
separation within the framework of child protection authorities, when the concerns
revolve around material living conditions and poverty, or cultural prejudice, rather than
protection of the child from neglect or from physical, sexual or psychological abuse.113
Furthermore, a growing number of countries are reportedly restricting family
reunification policies. The interpretation by administrative and judicial bodies of the right
to family life within the context of migration is also becoming more restrictive. The
prevailing view among migration experts is that such restrictions are likely to contribute
to the irregular entry of children seeking to reunite with their parents, or that they may
extend the length of irregular residence by the child in destination countries. Regional
human rights courts have repeatedly encouraged State authorities to abstain from making
decisions that result in separating children from their families, unless it is in the child‟s
best interests as determined by a comprehensive assessment, and have also urged
authorities to facilitate family reunification.114
e.

Lack of due process in migration procedures
In many countries of destination, migration procedures and decisions are not conducted in
accordance with the CRC and other due process standards required by international
law.115 Due process of law guarantees should be respected at all times, irrespective of the
child‟s migration status (see box below):
Minimum due process guarantees that States must respect in all migration proceedings involving
migrant children
- Right to a hearing without delay with due guarantees before a competent, independent, and impartial
court. (ICCPR Art. 14; CMW Art. 18.1; CRC Art. 37.d)
- Right to a translator and / or interpreter free of charge. (ICCPR Art. 14.3.f; CCPR General Comment
No. 15 par. 7; CMW Art. 16.7, Art. 18.3.f)
- Right to defense and competent legal representation. (ICCPR Art. 14.2 b; CMW Art. 18.3.d; CRC
Art. 37.d)
- Right to appeal any decisions before a superior authority or court. (ICCPR Art.13 & 14.5; CCPR
General Comment No. 15, Para. 10
- Right to speak, to be heard, and be taken duly into account in the framework of age-sensitive
mechanisms that factor the evolution and development of the migrant child or adolescent. (CRC Art. 12;
CMW Art 18.4)
- Right to consular assistance (Vienna Convention on Consular Relations 1963; CMW Art. 16.7 & 23)
- Right to a guardian and a legal representative who has the required specific knowledge on children‟s
rights, so that the interests of the migrant child or adolescent are well protected (this is particularly
relevant in cases of unaccompanied and separated migrant children) (CRC General Comment No. 6 (2005)
Para. 21, 24, 33-38)

22

Due process guarantees in all migration proceedings that may affect migrant children’s parents
- Right to be heard and participate: Grant children the right to be heard within their parent‟s deportation
processes. Children should be heard in proceedings concerning admission, residence and expulsion of their
parents in order to make sure that decisions adopted against their parents do not affect children‟s best
interests. (CRC Art. 3, 9, 10 & 12; CRC General Comment No. 6 (2005) Para. 82 & 83)
- Right to be informed: Children should be informed of all matters concerning their rights and migration
procedures and decisions that may affect their parents (CRC Art 3, 9 & 10; CRC General Comment No. 6
(2005) Para. 82 & 83)
- Access to justice and effective remedies: Children should have a guaranteed avenue for administrative
and judicial review of their parent‟s detention and immigration decisions (in cases of repatriations,
expulsions, refoulement, non-admittance, etc.). (CRC General Comment No. 6 (2005) Para. 82 & 83)

f.

Migration-related detention
There is a growing trend in different parts of the world to recognize that detention of
children in the context of migration should be avoided. Experts agree that such detention
can have permanent negative effects on children, including in terms of mental health.
Nevertheless, this increasing awareness has not yet translated into legislation and policies
that prohibit migration-related detention of children, and many States continue to detain
children. For example, although a study commissioned by the European Parliament
Committee on Civil Liberties, Justice and Home Affairs in 2007 noted that children and
adolescents were the worst affected by their stay in detention centers,116 the Returns EU
Directive, adopted in June 2008, still allows for children to be detained.117
Deprivation of liberty means any form of detention or imprisonment, or the placement of
a person in a public or private custodial setting from which this person is not permitted to
leave at his or her free will, by order of any judicial, administrative, or other public
authority.118 International law provides that the detention of children, including children
in the context of migration, should be avoided (article 37 CRC). Article 37(b) of the CRC
allows the detention of children in the context of juvenile justice, exclusively as a last
resort and for the shortest appropriate period of time.119 However, the detention of
children on the sole basis of migration status is not in accordance with the CRC. The CRC
Committee has affirmed that “unaccompanied or separated children should not, as a
general rule, be detained”, and “detention cannot be justified solely on the basis of the
child being unaccompanied or separated, or on their migratory or residence status, or lack
thereof”.120 Human rights mechanisms have stressed that the deprivation of liberty is
never in the best interests of the child and that it is a punitive measure rather than a
protection measure.121 The Working Group on Arbitrary Detention has affirmed that
mandatory or automatic detention must be considered arbitrary in all cases.
Depriving children of their liberty is a violation of their human rights. As was mentioned
previously, there is no empirical evidence to support the view that detention deters
irregular migrants. In addition, using detention as a punitive measure is a violation of the
principle of the best interests of the child. However, detention of migrant children has
been justified by States under certain specific circumstances, such as for the preservation
of family unity in cases where parents are detained. In the context of migration
proceedings, the fundamental principles of the CRC and the right not to be separated from
parents (article 9) must be duly taken into consideration and guide authorities‟ decisions
at all times. When it is in the best interests of the child to remain with his or her parents,
23

States should abstain from depriving the parents of their liberty122 and should consider,
“the adoption of alternative measures for the whole family” to avoid its separation.123
Thus, from both a normative and instrumental perspective, the immigration detention of
children should be avoided.
There are a wide range of possible alternative measures of detention, including
registration requirements, deposit of documents, bond/bail or surety/guarantor, reporting
requirements, case management/supervised release, designated residence, electronic
monitoring, home curfew/house arrest, and voluntary return.124 Alternative measures of
detention should be very carefully designed and developed in keeping with the UN
Guidelines for the Alternative Care of Children.125 Nonetheless, alternative measures of
detention are not, and should not be characterized as, alternatives to detention. States
should always use the least restrictive means necessary as alternative measures of
detention. Particularly in the case of children, it is important to examine the effect that
applying an alternative model will have on the rights and dignity of the individual.
Children released from detention centers should, for example, be provided with
appropriate alternative care, and not be left destitute on the streets.
For instance, in 2008, Belgium effectively stopped detaining families with children in
closed centers. Instead „open return houses‟ (maisons de retour) were established with
coaches to help families find a solution to their situation. This initiative was found to be
largely successful, in terms of most families being able to regularize their stay or
cooperate in a return process within the envisaged two months (the maximum duration of
stay). However, these positive developments were never formalized into law, and a 2011
amendment to the relevant law indicates a return to child detention.126 “Alternative”
measures taken in other States are considered by observers to “retain the defining features
of detention”.127
Further, in countries around the world, the conditions in migration-related detention are
frequently below the minimum standards set out in international law.128 The Special
Rapporteur on the Human Rights of Migrants, Francois Crépeau, has received reports that
“migrants in detention, both men, women and children, suffer violence, including sexual
violence and abuse. The behavior of the guards is not always adequately monitored,
especially if they are employed by private security companies. Proper instruction and
training of the personnel who have authority over migrants in detention is therefore of
utmost importance.”129
In cases where children are detained, the applicable basic human rights standards should
be respected at all times, irrespective of the child‟s migration status (see box below):
Minimum standards that States must respect in cases where migrant children are detained130
- The deprivation of liberty of migrant children, accompanied or not, should be temporary and for the
shortest period possible. All efforts, including acceleration of relevant processes, should be made to allow
for the immediate release of children from detention and their placement in other forms of appropriate
accommodation.131
- Migration-related detention centers should be separate from prisons and should not bear similarities to
prison-like conditions. The authorities in charge of these facilities should not be security forces (military,
police, etc.), but professionals competent in child protection. 132

24

- Centers where child detention takes place should have child protection officials specifically trained in the
care and protection of children.
- Children and adolescents should be separated from adults unless it is otherwise considered to be in their
best interests (article 37(c) CRC). Migrants should not be detained with convicted criminals.
- Centers should ensure the opportunity for regular contact with family and friends.
- Centers must ensure regular and confidential contact with legal and consular representatives.
- Facilities should not be located in isolated areas where culturally-appropriate community resources and
access to legal aid are unavailable.
- While staying in a center, even temporarily, children should be guaranteed the full enjoyment of
economic and social rights such as education, health care, recreation, food, water, and clothing.
- States must guarantee the existence and operation of independent mechanisms for monitoring the
conditions in detention facilities. The entry and performance of monitoring tasks should be facilitated,
including for both non-State (ombudsperson, etc.) and civil society organizations.
- Independent and qualified inspectors should be empowered to conduct inspections on a regular basis and
to undertake unannounced inspections on their own initiative. These inspectors should place special
emphasis on holding confidential conversations with children in the facilities.

g.

Repatriation of migrant children in disregard of their best interests

Under international law, States should only repatriate children as a measure of protection,
for instance to ensure family reunification in cases where it is in the child‟s best interests.
However, repatriation of child migrants in an irregular situation is currently used as a
punitive measure. As a primary consideration, the well-established principle of nonrefoulement should be scrupulously respected in the context of any return.133
The importance of respecting the principle of the best interests of the child in such
procedures is underscored by numerous studies and affirmed by human rights entities.134
Making a child‟s best interests the primary consideration implies that every decision for
repatriation must pay close attention to a child‟s health and psychosocial needs.135 Other
related factors that need to be considered are whether a child‟s right to education, health
care, and adequate living conditions can be ensured upon his or her return to the country
of origin.
A recent UNICEF study on boys and girls repatriated from Germany to Kosovo points to
an alarming situation: one out of two children described their return as the worst
experience of their lives. The experience of the repatriation of foreign-born and minority
children was particularly traumatic. Every third repatriated child was suffering from posttraumatic stress syndrome, nearly one in two teenagers was suffering from depression,
and one in four children reported suicidal ideation. The study concluded that
determination of what constitutes a child‟s „best interests‟ can only be reached by
“reviewing the personal circumstances of each child individually on a case-by-case basis,
and by respecting the child‟s views, identity, and sense of belonging”.136 Guarantees of
due process of the law, the right to be heard, and the right to a guardian and legal
representative must also be ensured to migrant children throughout the repatriation
process.
25

h. Exclusion from systems for protecting child rights
Children affected by migration are invisible within policies and systems for protecting
and promoting children‟s rights.137 In many countries of origin, transit and destination,
social policies and programs do not take into account the conditions and needs of migrant
children. As a recent study of young migrants in secondary education has pointed out,
migrant boys and girls are left out of most policy frameworks, since they are either
perceived as accompanying “luggage” for migrating adults or as offspring born to
migrant parents.138
This absence is particularly evident in the case of children in an irregular situation:
national action plans and strategies on social exclusion, child poverty, early school
leaving, or health inequalities do not identify irregular migrant children as a target group.
The former Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, has
identified this gap in policies regarding, inter alia, education (such as access, dropping
out and language barriers), health care, birth registration, and adolescent professional
training. The Special Rapporteur also pointed out that while some migrant children may
be nationals of the destination country, they may still face obstacles in accessing basic
services such as health care or education, especially if their parents are in an irregular
situation.139
i. Denial of access to economic, social and cultural rights and basic services, including
using such access as a migration management tool
Economic, social and cultural rights (such as the right to work, education, health, housing,
social security, food, water, healthy environment, and culture) are essential to enabling a
life of dignity and freedom. These rights are recognized in the CRC, the ICESCR, and
other major treaties. The CESCR Committee has stated that Covenant rights also apply to
non-nationals such as refugees, asylum-seekers, stateless persons, migrant workers and
victims of international trafficking, regardless of legal status and documentation. The
Committee has further affirmed that the ground of nationality is a prohibited basis of
discrimination and therefore should not be used to bar access to these rights. Thus, all
migrant children within a State, including those in an irregular situation, have the right,
inter alia, to education, adequate food, and health on the same basis as citizen children.140
Reports point to many obstacles faced by children in the context of migration in accessing
basic services in destination countries.141 Children in an irregular situation, including
those accompanied by their parents or born to migrant parents in an irregular situation in
countries of destination, are particularly vulnerable to discrimination and are often denied
access to essential public services. As described in OHCHR‟s 2010 Annual Report to the
Human Rights Council in regard to health services:
Migrant children can be prevented from gaining effective access to health care
in a number of ways beyond express prohibition. High costs can make access
unaffordable and the requirement of immediate payment or proof of payment
can also impede access to the health service. Also, health care and services
can be used as an instrument of immigration control policies for instance
where there is a duty to report undocumented migrants by health
professionals.142 There may be fear of deportation or detention of themselves
26

or their families or a lack of information about migrant‟s entitlements and
guarantees in relation to health services and goods. A particular area of
concern lies in the area of childhood immunization. Many migrant children
are unable to gain access to vaccinations in a timely manner, with long-term
effects on their health.143
Migrant children in an irregular situation often find their rights inadequately defined in
the legislation of destination countries. Constraints in the enjoyment of fundamental
rights are often linked to migration control mechanisms that prevent migrants in irregular
situations from accessing the right to health, to education, and to adequate housing. This
is often related to lack of specific guidelines clarifying that health and education
professionals are not obliged, or are prohibited, to share migrants‟ data with immigration
enforcement authorities, and that a child‟s right to education and healthcare should never
be impeded by migration status.
j.

Lack of birth registration and statelessness
Children born in destination countries have the right to be registered immediately after
birth and to acquire a name and nationality (article 7 CRC, article 24 ICCPR, article 29
CMW). International standards obligate all States to guarantee these rights to all children,
regardless of their or their parents‟ migration status, “in particular when the child would
otherwise be stateless” (article 7 CRC).
Birth registration is closely linked to the right to a legal identity and protection, and
serves to safeguard children against violations of their rights. Birth registration is
normally required in order to access education and health services, and birth registration
data are essential for State planning regarding the provision of social services. A copy of
the birth certificate is routinely required for school enrolment in most developed
countries.144 Birth registration also facilitates family reunification in migration
proceedings.
Children facing barriers to birth registration are frequently denied the enjoyment of other
rights, including the right to be recognized as a person before the law. In some cases, it
can result in a situation of statelessness, which the State has a duty to prevent.145 Children
who are denied their civil right to birth registration are also more likely to face barriers to
access other civil, political, economic, social and cultural rights throughout their life.
Many parents in irregular situations fail to register their children due to their fear of
imprisonment and/or deportation, which leads them to avoid all contact with local
authorities. There is a clear need for guidelines for civil registries clarifying that they are
not obligated, or are prohibited, to share migrants‟ data with immigration enforcement
authorities and that a child‟s right to birth registration should never be impeded by the
parents‟ lack of documentation or irregular migration status.146 States should make
greater efforts to adopt measures to regularize the situation of irregular migrant parents
and avoid their deportation when their children are born in destination countries.

k.

Lack of opportunities for regularization
The former Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, has
described regularization policies as a good example of practices aimed at strengthening
27

social integration and cohesion, ensuring the human rights of migrants, and attaining
State goals concerning social security, public healthcare coverage, and social inclusion.147
Thus, regularization mechanisms are a valuable policy tool, as they can contribute to
preventing human rights violations and to meeting social policy goals. As well as
improving access to basic rights and services, regularization facilitates the full economic
and social integration of migrant children and their families in countries of destination.
Nevertheless, there are a concerning lack of stable and long-term regularization
possibilities for children in an irregular situation. In some countries, children may qualify
for regularization based on years of residence and ties to the destination country, and
family reasons are often central considerations in both permanent and temporary
regularization measures. For example, in France, more than 85,000 people were
regularised due to personal and family reasons between 2002 and 2006. 148 In Belgium,
additional criteria for regularization were introduced temporarily, between 9 July and 9
December 2009. One of the criteria related to local ties, demonstrated primarily by five
years of continuous residence.149 In the United States, President Barak Obama recently
instituted an executive order to provide work permits to young migrants (no more than 30
years old) who entered the US before age 16, and who have lived there for at least five
years, are in school, or are high-school graduates or military veterans in good standing,
and have clean criminal records. The measure does not provide a permanent residence
status, but grants a suspension of deportation proceedings and issues renewable
temporary permits of residence.150
However, the length of the residence permit granted through regularization procedures
varies considerably, and does not necessarily constitute a long-term solution. Further,
before qualifying for regularization procedures, children in an irregular situation face
long periods of uncertainty, fear, and restricted access to basic rights and services. The
long-term negative consequences for both the individual child, as well as society as
whole, need to be considered. In addition, access to such procedures can also be difficult,
due to, inter alia, application fees, complex procedures and requirements, lack of quality
free legal representation, and lack of awareness on the part of both families and advocates
of available regularization procedures.
l.

Lack of awareness and training of pertinent authorities
As State Party reports and Concluding Observations show, duty-bearers can lack capacity
at all levels to fulfill their international obligations. Many of the key actors that come into
contact with children at all stages of the migration process, including border control
authorities and persons working in migration centers in transit and destination countries,
lack knowledge of child rights and protection standards. Overall, a range of measures
need to be put in place, including the development of special structures and monitoring
mechanisms, effective systems for protecting children‟s rights, and capacity-building of
duty-bearers. These include immigration officials, civil servants, parliamentarians, and
members of the judiciary.

m.

Vulnerability to exploitation, abuse and trafficking
A further human rights issue that affects children in the context of migration is trafficking
in persons. Although the figures vary, according to the ILO, nearly 2.5 million people are
in forced labor as a result of trafficking – of whom 22 to 50 percent are children.151 It is
28

estimated that globally 1 in 5 victims of trafficking are children, and these numbers may
be much higher in States where there are weak child protection regimes. 152 The
clandestine nature and the varying interpretations of the crime of trafficking make it
particularly difficult to come up with a solid uncontested figure. While some countries
focus entirely on cross-border trafficking, others address jointly both internal and
international trafficking. Furthermore, some States define trafficking exclusively as
sexual exploitation, while others look at broader trafficking outcomes in their definitions.
Moreover, child trafficking is frequently hidden, denied or ignored. All these factors
make it difficult to obtain comprehensive data. While many migrant children are often
mistakenly treated as victims of trafficking, there are many actual child victims of
trafficking who go unidentified for numerous reasons, not least because children do not
feel empowered to report crimes committed against them.
In very general terms, children are often trafficked for work in sectors that have been
associated with the worst forms of child labor. These activities include, but are not
limited to, the commercial sex industry, domestic service, agricultural work,
construction work, sweatshops, and organized begging and soliciting.153 Within these
sectors and during the trafficking process, children are particularly vulnerable to
violence, sexual abuse, exploitation, and other human rights violations. Some children
affected by migration can be more susceptible to trafficking: many children left behind
in countries of origin seek to be reunited with their parents in countries of transit and
destination; since they have no means to migrate through regular channels, they are
forced to use smugglers and other irregular channels to travel to their destination. The
irregular nature of their movement makes them more vulnerable. For example, in SouthEast Asia child trafficking and labor migration are frequently interlinked, and traffickers
are said to “fish in the stream of migration”.154
The ILO reports that child migrants often experience other forms of maltreatment, such
as sub-standard working conditions, non-payment of wages, and the threat of being
reported to State authorities.155 Girls are known to be at particular risk of being
trafficked, including for purposes of sexual exploitation.156 Many of the children who are
forced into sexual exploitation were promised legitimate jobs in the country of
destination.
Articles 34, 35 and 36 of the CRC stipulate that States should protect children from all
forms of exploitation and abuse, and take all measures possible to ensure that they are not
abducted, sold, or trafficked. Furthermore, the Protocol to Prevent, Suppress, and Punish
Trafficking in Persons, Especially Women and Children, supplementing the United
Nations Convention against Transnational Organized Crime, pays particular attention to
women and children (article 2 (a)), and offers additional protection to children: unlike in
the case of adults, the elements under the “means” of trafficking (such as threat and
coercion) need not be taken into account when identifying incidents of child trafficking.
States Parties are also obligated to “ensure that trafficked children are not subjected to
criminal procedures or sanctions for offences related to their situation as trafficked
persons”.157 Furthermore, the Protocol calls on States to provide protection to the victims
of trafficking, including relevant legal and social services (article 6), and to give
particular consideration to the special needs of children with regards to housing,
education, and care (article 6(2)).

29

There are significant obstacles to ending child trafficking. Underlying socio-economic
factors play an important role in increasing the vulnerability of children affected by
migration to becoming potential victims of trafficking. There is also concern that stricter
migration controls and efforts to curb and punish irregular migration without addressing
its root causes will result in greater incidence of human smuggling and trafficking in
persons. Many countries repatriate trafficking victims to their countries of origin, which
further exacerbates their situation. This is particularly true for child victims of trafficking
being returned, who are at high risk of being re-trafficked.
The issue of children being sold for the purpose of sexual exploitation, forced labor, or
any other reason must also be considered within the context of international migration.
Although trafficking and sale of children are similar concepts and may overlap, they are
not identical. Even though children can be sold at each stage of the trafficking process, a
child can be trafficked without any element of sale occurring throughout the entire
process. Further, the sale of a child is not necessarily linked to the purpose of exploitation
by those who pay for the child, as is the case for child trafficking, and the sale of a child
can take place without physical movement of the child, a defining element of child
trafficking.158 Article 35 of the Convention on the Rights of the Child (CRC) obliges
States Parties to take measures to prevent both child trafficking and the sale of children,
and the Convention‟s Optional Protocol on the Sale of Children, Child Prostitution and
Child Pornography supplements the treaty by providing States with detailed requirements
to end the sexual exploitation, abuse, and sale of children in all its forms. The Protocol
obliges governments to criminalize and punish the activities related to these offences. It
requires punishment not only for those offering or delivering children for the purposes of
sexual exploitation, transfer of organs, profit, or forced labour, but also for anyone
accepting the child for these activities. The Optional Protocol also protects the rights and
interests of child victims. However, adequate differentiation between trafficking and the
sale of children is currently lacking, though it is essential with regard to the prosecution
of perpetrators, creating indicators and systems for identification and determining the best
interests of the child, including with regard to the child‟s repatriation to his or her family.
To address the complex processes and situations whereby children affected by migration
become victims of exploitation, abuse and trafficking, a multidisciplinary approach is
needed. This should involve applying the Best Interests Determination Procedure and
engaging child protection services in order to provide the child with adequate support and
assistance, including medical, social, legal, and psychological care, as well as further
integration or reintegration support.
n. Vulnerability of children left behind
“Children left behind” refers to those who remain in their country of origin when parents,
other family caregivers, or legal guardians migrate abroad. Migration can improve the
standard of living for those who are left behind through remittances, which often
represent a considerable share of household income and increase household capacity to
invest in children‟s education, health, and nutrition. However, poor households may face
short-term losses when an income-earner decides to migrate. For example, assets may be
sold to fund migration, and the migrant‟s departure can leave a family without social
protection, for instance in cases where insurance is linked to the individual‟s employment.
Further challenges faced by these children include psychosocial trauma, family

30

instability, and social stigma,159 which can result in violent and delinquent behavior, drug
abuse, and teenage pregnancy.160
Gender must be carefully taken into account when assessing the situation of children left
behind.161 The impact of a mother‟s migration on children is likely to be greater than in
the case of a father‟s migration.162 When women migrate, especially migrant mothers
leaving their children behind, traditional roles, family relations, and responsibilities in the
home environment are affected, such as those related to the care of children and the
elderly.163 In many cases, the care responsibility is transferred to the eldest daughter.164
As highlighted with concern by the CRC Committee, the education of many children left
behind, particularly girls, is often jeopardized by their obligations to fulfill household
duties and care for younger siblings and other family members.165
The CRC Committee has pointed out that States do not always account for the special
situation of children left behind, nor ensure that public policies address their particular
needs and vulnerabilities.166 These children are often invisible to State authorities because
they are considered more privileged than those who do not receive remittances, and thus,
are typically excluded from the priority groups of social and child protection policies.
States should adopt specific programs for children left behind that include benefits for
single-parent households and non-traditional caregivers such as grandmothers or other
relatives. 167 Regulations on child labor should also be strengthened so that these children,
particularly girls, do not drop out of school to work and help support the family. At the
same time, countries of transit and destination should lift current restrictions that impede
or delay family reunification. Wherever possible, and after applying the principle of the
best interests of the child, States should enable children left behind to join their parents,
regardless of their migration status.
o.

Insufficient data on international migrant children
A holistic picture of the numerous ways migration affects the well-being of children is
hindered by lack of reliable data. In order to analyze the situation of migrant children and
formulate effective laws, policies and programs, accurate and disaggregated data is an
imperative. The former Special Rapporteur on the Human Rights of Migrants, Jorge
Bustamante, has noted the lack of accurate statistical information on the number of
children involved in international migration, which is related to the general absence of an
„age‟ approach in migration policies.168 This hinders the design, implementation, and
monitoring of public policies that protect the economic and social rights of children in the
context of migration. There are, for instance, no reliable figures on the number of children
in an irregular situation in developed countries.169 Many destination countries also fail to
collect the kind of data necessary for an evaluation of the impact of immigration controls
on children.170
In light of this, UNICEF and UNDESA have joined forces in order to produce reliable
national-level estimates of the global stock of international migrant children and
adolescents based on countries‟ population censuses or administrative sources that report
data collection on persons under 20 years of age who were born outside the country of
enumeration, and who may or may not be a citizen of that country or migrated through
regular channels (see Annex 1 for further details).171 There remain, however, limited
statistics on children affected by migration, including children who migrate
unaccompanied or who are left behind by one or both parents. Addressing the absence of
31

national figures and estimates on irregular migrants, particularly irregular migrant
children, should be made a higher priority by all pertinent duty-bearers.
The CRC Committee regularly reminds States Parties that data collection needs to extend
over the whole period of childhood (up to the age of 18 years) and should be coordinated
throughout their jurisdiction, ensuring nationally-applicable indicators. The reporting
guidelines for States Parties to the CRC call for detailed disaggregated statistical and
other data, as well as information covering all areas of the Convention. To this end,
government agencies should collaborate with appropriate research institutes and
strengthen national data collection systems through the allocation of adequate
resources.172
It is also necessary to put in place a system enabling the collection of sex- and agedisaggregated data on international irregular migration flows, ensuring that these data
are not used for immigration control purposes. The collection of comparable data on
access to basic social rights by irregular migrant children should be promoted by States
with the active participation of civil society and relevant stakeholders. National action
plans on social exclusion, child poverty, early school leaving, health inequalities, etc.
should identify children in an irregular situation as a target group, as currently they are
almost entirely absent from these strategies. Furthermore, relevant actors should be
adequately trained to be fully aware of their duties and responsibilities (i.e. nonobligation or prohibition to share personal data of irregular migrant children with
immigration enforcement authorities), in keeping with the principles and standards of the
CRC (e.g. child‟s rights to family, privacy, birth registration, health, and education) and
international data protection standards.
V.

Policy Proposals for Consideration
The following issues and recommendations, among others, may be considered by the
Committee on the Rights of the Child at its 2012 Day of General Discussion:
Measures for ensuring migrant children are treated first and foremost as children,
including in relation to:
(a) Comprehensive normative and institutional frameworks for protecting child rights that
effectively take priority over migration laws and policies, regardless of migration status;
(b) Ensuring migrant children benefit from the most protective legal framework available
and relevant authorities adequately consider the situation of migrant children;
(c) Ensuring the due consideration of the particular vulnerabilities of migrant children in
existing child-specific policies and programs; and,
(d) Implementing specific protection measures for unaccompanied or separated children,
including to achieve a durable solution according to their best interests. Depending on the
specific circumstances of each case, a durable solution can vary substantially, with the
main options being:
(i) family reunification in the country of origin (immediate or delayed);
(ii) family reunification and integration in the country of transit or destination;173
(iii) integration in the country of transit or destination (either independently, with
foster family or in child-care institutions);174 and
(iv) resettlement in a third country.

32

Adopt a rights-based approach to migration, including on:
(a) Ensuring all State legislation, administrative regulations, policies, and interventions
that affect children in the context of migration comply with all State obligations under
international human rights law; and,
(b) Ensuring States‟ compliance with international labor, refugee and humanitarian law
obligations in a manner that is guided by the principle of the best interests of the child.
Measures to promote the rights of children in the context of migration in
international cooperation mechanisms, including:
(a) Ensuring bilateral, regional and international agreements and action plans adhere to
human rights obligations and contain adequate safeguards, particularly in relation to
readmission agreements;
(b) Developing cooperation agreements transparently and on the basis of a participatory
approach, including social partners (labour unions, employers) as well as other civil
society actors (NGOs and migrants‟ associations);
(c) Highlighting migrant children as a target group within existing Regional Consultative
Processes and multilateral initiatives.
Principle of family unity and family reunification policies, including on:
(a) Designing and implementing migration policies to facilitate State compliance with the
principle of family unity, including ensuring that families are not separated by State
action or left separated by State inaction (unless this is in accordance with the principle of
the best interest of the child);
(b) Ensuring due regard to the principle of preserving family unity, including refraining
from the deportation of parents where children are nationals or remaining in the country
of destination; and,
(c) Measures to enable children left behind to join their parents, thus avoiding the need to
access irregular and unsafe channels in countries of origin and/or transit.
Best interests principle and determination procedure, including on:
(a) Measures for ensuring State legislation, policy and practice systematically consider
and accord priority to the principle of the best interests of the child over immigration
considerations and other administrative matters;
(b) Discontinuing policies and practices that separate families in an irregular migration
situation in disregard of the best interests of the child;
(c) Developing options and good practices for establishing Best Interests Determination
(BID) Procedures at the national level to determine what constitutes the best interests of
the child and provide for durable solutions where relevant, particularly in cases of
unaccompanied and separated children and repatriation processes; and,
(c) Ensuring children‟s rights and best interests determination procedures are applied,
observed, and respected throughout the entire migration process, from the child‟s first
contact with migration authorities through to the implementation of any measures
affecting the child.
Measures for ensuring due process guarantees in migration proceedings, including:
(a) Applying and respecting international standards related to due process guarantees and
ensuring they are applied in all migration proceedings affecting migrant children or their
parents;

33

(b) Ensuring the right of the child to speak, to be heard, and to have his or her views duly
taken into account and complemented by age-sensitive mechanisms that respect the
evolving capacities, maturity, and development of the migrant child; and,
(c) Where relevant, ensuring migrant children have access to a guardian and legal
representative with the required competence in children‟s rights.
Promoting the principle of non-detention, including dissemination and compliance:
(a) Ensuring the principle of non-detention of children in the context of migration is a
core standard, and any measure implying deprivation of liberty constitutes a violation of
children‟s rights;
(b) Prohibiting the detention of children for the purpose of maintaining family unity
within a detention center; and,
(c) Applying alternatives to detention which are in compliance with the UN Guidelines
for the Alternative Care of Children and other relevant human rights standards, including
community-based and non-custodial measures, should be put in place.
Ensuring minimum standards in case of custodial measures, in accordance with
international law, including:
(a) Restricting custodial measures to the shortest period of time possible, and with the
purpose of providing comprehensive attention and protection, immediately, and in the
medium and long term, for the prompt transfer to adequate alternatives to detention;
(b) Staffing detention centers with qualified personnel competent in child care and
protection, and putting detention centers which house migrant children under the
responsibility of child institutions and not migration control authorities and/or security
forces;
(c) Ensuring migrant children in detention have the opportunity for regular contact with
their family and confidential contact with their legal guardian, as well as with legal and
consular representatives;
(d) Guaranteeing social and economic rights in temporary detention; and,
(e) Ensuring compliance with the Rules for the Protection of Juveniles Deprived of their
Liberty.
Measures addressing the participation of children, in accordance with their age and
maturity, in all migratory proceedings and those of their parents, including:
(a) Guaranteeing children‟s right to be heard in all proceedings concerning their
admission, residence, and expulsion in order to ensure that all such decisions are not
contrary to their best interests;
(b) Granting children the right to be heard in proceedings concerning admission,
residence, and expulsion of their parents in order to ensure that decisions are not contrary
to their best interests;
(c) Informing children of all matters concerning their rights and migration procedures and
decisions involving their parents; and,
(d) Guaranteeing children‟s access to administrative and judicial review of their parents‟
detention and immigration decisions.
Measures addressing the rights of children born in destination countries, including:
(a) Ensuring children‟s birth registration is not impeded by the legal status of their
parents;
(b) Ensuring the interpretation and application of nationality laws in destination countries
does not render children stateless;
34

(c) Good practices in applying residual clauses providing for the immediate acquisition of
the nationality by birth in nationality laws of the destination country (in cases where the
joint operation of the nationality laws of both the country of origin and destination might
result in statelessness); and,
(d) Ensuring safeguards for civil registries respecting migrants‟ right to privacy, including
from immigration enforcement authorities.
Measures addressing access to social, economic and cultural rights, including:
(a) Ensuring all children in the context of migration have access to social, economic and
cultural rights and basic services, regardless of their or their parents‟ migration status;
(b) Eliminating any legislation and policy requiring civil servants or individuals to report
irregular migrants to immigration law enforcement authorities. Schools, medical facilities
and civil registries should be prohibited from sharing migrants‟ personal data for the
purpose of immigration control;
(c) Strengthening the key role of social services (school, health care, day care personnel)
in guaranteeing effective access to economic and social rights, as well as ensuring such
children are treated first and foremost as children, including by training relevant actors
and making them fully aware of the exclusively social nature of their role and lack of
obligation to help enforce immigration laws and policies; and,
(d) Ensuring that national action plans and strategies on social exclusion, child poverty,
early school leaving, or health inequalities identify migrant children or children born to
migrant parents, in particular irregular migrant children or children born to irregular
migrant parents, as a target group.
Measures promoting access to secure residence status, including:
(a) Designing and implementing permanent and long-term mechanisms for children, both
unaccompanied and separated and with their families, to regularize their status;
(b) Promoting access to existing regularization mechanisms, by removing onerous
administrative requirements and fees and providing quality free legal representation and
information;
(c) Removing requirements for regular residence in order to access permanent residence
status and citizenship, when other criteria, such as years of residence and school
attendance, have been met.
Measures addressing the situation of children left behind, including:
(a) Good practices in awareness-raising in countries of origin, particularly among policymakers, about the specific vulnerabilities of children from migrant homes, including
gender-specific vulnerabilities; and,
(b) Social protection policies in countries of origin which address the situation of
children left behind, including through the adoption of specific programs (e.g. benefits to
single-parent households and non-traditional caregivers), as well as strengthened
regulations to prevent child labor.
Measures for combatting racism, xenophobia and discrimination, including:
(a) Good practices on addressing negative perceptions of migrants, including those in an
irregular situation, including by raising awareness of the positive contributions of
migrants to countries of transit and destination; and,
(b) Measures countering xenophobic violence, hate crimes, and hate speech, including on
effective reporting and enforcement mechanisms.

35

Measures strengthening data collection, including:
(a) Ensuring the collection of comparable data on children in the context of migration
disaggregated by age and gender according to international practices and guidelines;175
(b) Encouraging States to collaborate with international organizations and relevant
research organizations to strengthen the institutional capacity of national data collection
systems, increase transparency, and enhance dissemination practices to make statistics
and data available to the public;
(c) Establishing a system to collect sex- and age-disaggregated data on international
irregular migration flows, though always ensuring that these data are not used for
immigration control purposes;
(d) Promoting the role of social services in the collection of comparable data on children
in an irregular situation and their access to economic and social rights; and,
(e) Training relevant actors about their duties and responsibilities (i.e. non-obligation or
prohibition to share personal data of irregular migrant children with immigration
enforcement authorities), in keeping with the principles and standards of the CRC and
with international data protection standards.
Measures with regard to the role of civil society, including:
(a) Strengthening the work and participation of civil society to protect the rights of all
children in the context of migration at the local, regional, and global levels;
(b) Avoiding the criminalization of individuals and organizations providing legal,
humanitarian, and social assistance to irregular migrant children or children born to
irregular migrant parents;
(c) Allowing monitoring by civil society organizations of the situation of migrant children
in countries of transit and destination, including conditions in detention centers; and,
(d) Encouraging civil society to present alternative reports and individual complaints to
treaty bodies, in particular to the CRC Committee, to denounce violations of children‟s
rights in the context of migration.
VI.

Conclusion
The situation of children in the context of international migration is a compelling human
rights challenge for policy-makers. A key message in this Background Note is that special
attention is required in countries of origin, transit and destination, and in terms of
cooperation and coordination among them,to ensure that the rights and principles laid out
in the Convention on the Rights of the Child apply to all children in the context of
international migration, without exception. Migrant children, regardless of their or their
parents‟ status, are an integral part of the future of societies of destination. Significant
evidence indicates that child migrants in an irregular situation are a high-risk group whose
rights are most commonly violated, including by State authorities who fail to comply with
their obligations pursuant to the CRC and other human rights instruments. It is also clear
that detention of children in the context of migration should be prohibited, as it constitutes
a human rights violation.
In order to comply with obligations under the CRC, States Parties must treat children in
the context of international migration as children, first and foremost, regardless of their or
their parents‟ migration status. Migrant children constitute a particularly vulnerable group
considering that, both as children and as migrants, they are more likely to face poverty,
social exclusion, exploitation, and multiple risks, including to their survival and
development. Protecting their civil, political, economic, social, and cultural rights is
36

fundamental for their overall development, and closely linked to their social inclusion and
integration in society. Among other things, States must strongly condemn all
manifestations and acts of racism, discrimination and xenophobia against migrants, as
well as the stereotypes that are often applied to them.
The Note further emphasizes that the principle of the best interests of the child should be
the primary consideration that guides decisions by policy-makers and other duty-bearers
whenever children are involved in migration, irrespective of their status or that of their
parents. Decision-makers should assess the impact of all actions concerning migrant
children beforehand. In all migration proceedings, decisions should only be made after
conducting a Best Interests Determination. Not putting the best interests of the child as a
first and foremost consideration when deciding State actions regarding migrant children
means not only that their rights will be at risk, but also that the country of destination is
squandering an irredeemable opportunity to invest in the well-being and social cohesion
of its population.
The 2012 Day of General Discussion of the Committee on the Rights of the Child
provides a timely opportunity to remind States Parties that, as signatories to the CRC,
their responsibility to protect children‟s rights applies to all children, regardless of status,
and to push forward discussions on some of the issues outlined in this Note. It is hoped
that broad consultations at the 2012 CRC DGD will help to increase awareness of the
situation of children in the context of international migration, guide States in the
implementation of the CRC with regard to this vulnerable group, and reaffirm the
imperative of respecting, protecting, and fulfilling all their rights. As a legally-binding
instrument with virtually universal ratification, the CRC has a key role in protecting the
rights of children in the context of migration.
It is hoped that the 2012 CRC DGD will be just the first step in a growing international
dialogue regarding the significant human rights challenges around children in the context
of international migration, and raise awareness of the urgent need for change. This
dialogue should be inclusive and based on a comprehensive and holistic human rightsbased approach. Crucially, ahead of the 2013 High-Level Dialogue on International
Migration and Development, and building on General Comment 6 Treatment of
Unaccompanied and Separated Children Outside their Country of Origin (2005),
outcomes and recommendations from the DGD should provide a strong and broad basis
for further initiatives with a view to developing standards to protect all children in the
context of international migration that are based on the universality of human rights
norms, rather than protection frameworks that are based on categorization and exclusion.
The Committee could consider collaborating with external stakeholders on the
development of operational guidelines for respecting child rights in the context of
international migration policies and practices. Such guidelines could include, inter alia,
clear elaboration and examples of how migration policies and practices can be made
compatible with CRC obligations, as well as incorporating systematic consideration of the
best interests of the child. Another possible outcome could be a guide on the practical
application of the best interests of the child in migration decisions, as well as an
evaluation of contexts when the best interests of the child are currently invoked by States.
Further studies, carried out by the Committee, Special Rapporteurs, the Office of the High
Commissioner for Human Rights, other United Nations entities and/or external
37

stakeholders, would be particularly valuable initiatives that follow on from the DGD. For
example, a global study could be undertaken on the current gaps in the human rights
protection of all children affected by international migration, including in relation to their
civil, political, economic, social and cultural rights, and at particularly vulnerable
situations in the migratory cycle (E.g. detention, in relation to access to public services,
international borders). Thus, outcomes from the 2012 CRC DGD could address, on the
one hand, guidelines on practical measures to assist States in implementing migration and
social policies to respect the rights of all children in accordance with the CRC, and on the
other hand, the prevailing lack of information and data on the impact of migration policies
on children and their rights, with a view to improving evidence-based policy-making.
______________________

38

ENDNOTES
1

Many countries collect data on persons under 20 years of age by five-year age groups, following
international standards. These groups comprise 0-4 years, 5-9 years, 10-14 years and 15-19 years of age.
Specific data solely on children under 18 years of age is not widely available and only collected through
specialized surveys. See Annex 1: International Migrant Children and Adolescents. Facts and Figures
(May 2012).
2
See Annex 1.
3
In Northern America there are 89 female migrants for every 100 male migrants, while in Latin America
and the Caribbean there are 95 female migrants for every 100 male migrants under 20. In Asia and
Oceania the female-male ratio is of order of 91 and 97 female migrants for every 100 male migrants under
20, respectively. In Europe there is practically no difference in terms of sex ratios, that is, there are 99
female migrants for every 100 male migrants. In Africa, however, the sex ratio is reversed. For every 100
male migrants there are 108 female migrants under the age of 20. Regarding age, the age group 15-19
years are the most numerous age group of migrants under the age of 20 in all areas of the world, while the
group 0 to 4 years of age represent the least numerous (see Annex 1 for breakdown by region).
4
The Rights of Children, Youth and Women in the Context of Migration, UNICEF Policy and Practice,
2011. UNICEF Regional Office for Latin America and the Caribbean has increased its attention on the
ways in which the migration phenomenon affects indigenous children. UNICEF, in collaboration with the
Latin American Faculty of Social Sciences (FLACSO) in Ecuador, carried out a study on migration and
indigenous children in Latin America. The study focuses on indigenous child migratory flows from Bolivia
to Argentina, from Ecuador to Colombia and from Guatemala to Mexico. It deals with three different
situations that affect children: children that migrate alone (long- and short-term, even daily, migration);
children that migrate with their families; and children remaining in the country of origin with other family
members.
5
Ibid.
6
Ibid.
7
Regular migrant children can include children born to irregular migrant parents. Children with regular
migration status whose parent(s) are in an irregular situation are affected by the migration status of their
parents, and are particularly vulnerable to human rights violations.
8
For example, most countries with State systems for the care of separated migrant children provide
regular migration status only until the age of 18. Despite having lived regularly for a number of years in
the destination country with state support and protection, many young migrants are at risk of enforcement
proceedings, detention and deportation, from the day of their 18 th birthday. In some countries, such as
Ireland and France, there is no requirement to have a residence permit until the age of 16 and 18
respectively. Therefore in these countries, a child cannot be in an irregular situation until this age.
Nevertheless, these young migrants become irregular on reaching the age of majority.
9
Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante (2009),
A/64/213. 3 August 2009, para. 28.
10
Ibid., para. 31.
11
See: Committee of the Rights of the Child, Outline for Participants in the 2012 CRC DGD, pages 1-2.
Available at: http://www2.ohchr.org/english/bodies/crc/docs/discussion2012/DGD2012Outline.pdf
12
Ibid, pages 4-5.
13
Study of the Office of the United Nations High Commissioner for Human Rights on challenges and best
practices in the implementation of the international framework for the protection of the rights of the child
in the context of migration, Annual report of the United Nations High Commissioner for Human Rights
and reports of the Office of the High Commissioner and the Secretary-General, A/HRC/15/29, 5 July
2010.
14
As the Global Migration Group (GMG) has stressed: “Models of economic development which
create structural inequality promote irregular migration and place the human rights of millions of
people at risk.” See: GMG (2008), International Migration and Human Rights. Challenges and
Opportunities on the Threshold of the 60th Anniversary of the Universal Declaration of Human
Rights, Geneva.2008, para.79. See also: Overcoming barriers: Human mobility and development,
Human Development Report 2009, UNDP.
15
Solimano, A., Migration and Democracy: Issues for Latin America and Europe at a time of Global
Recession. IDEA. 2009.

39

16

The impact of international migration: what happens to children left behind in selected countries of
Latin America and the Caribbean, UNICEF/ DPP Working Papers, May 2007.
17
See, supra The Rights of Children, Youth and Women in the Context of Migration, UNICEF Policy and
Practice, 2011.
18
UNICEF, Risks and realities of child trafficking and exploitation in Central Asia. UNICEF Regional
Office for CEE/CIS, Geneva 2009.
19
“The Cairo World Conference urged governments to make the option of not migrating – „remaining in
one‟s country‟ – a viable one for „all people‟. To this end, it called on governments to respect the rights of
minorities and indigenous people, and the rule of law, to promote human rights and good governance, and
to strengthen democracy; it urged greater support for food security, education, nutrition and health.
Endorsing this approach, the Global Commission on International Migration urged that “Women, men and
children should be able to realize their potential, meet their needs, exercise their human rights and fulfill
their aspirations in their country of origin and hence migrate out of choice, rather than necessity.”
OHCHR, Migration and Development: a Human Rights Approach, Geneva, 2008.
20
See, supra The Rights of Children, Youth and Women in the Context of Migration, UNICEF Policy and
Practice, 2011, p. 4.
21
Kofman, E. and Raghuram, P., The Implications of Migration for Gender and Care Regimes in the
South. Social Policy and Development Programme Paper Number 41, United Nations Research Institute
for Social Development, July 2009.
22
Adepoju, A., Migration in Sub-Saharan Africa: A background paper commissioned by the Nordic
Africa Institute for the Swedish Government White Paper on Africa. Human Resources Development
Centre, Lagos, Nigeria, 28 July 2007, Revised 14 September 2007.
23
ILO, IOM and UNICEF/ WCARO, Which Protection for Children involved in Mobility in West Africa?
Project of Joint Regional Study on the Mobility of Children and Youths in West Africa, 2011.
24
Adolescents, Youth, and International Migration: Figures and Facts, 2011. Available at:
http://www.unicef.org/socialpolicy/files/GMG_-_Factsheet_UNICEF-FINAL.pdf.
25
UNICEF, OHCHR and National University of Lanús, Children and Adolescent in the Context of
Irregular Migration, Working Paper, Internal Draft, Nov. 2011.
26
Cortés, R., Adolescents’ Rights, Gender and Migration: Challenges for Policy-Makers, ADAP Learning
Series, UNICEF April 2011.
27
Ibid.
28
Migration control initiatives by destination countries may have the effect of some transit countries also
increasing their restrictions, leading to criminalization of irregular migration. See: Belguendouz, A.,
Expansion et sous-traitance des logiques d’enfermement de l’Union européenne : l’exemple du Maroc,
Cultures & Conflits, 57, printemps 2005. See: http://conflits.revues.org/index1754.html. See also: De
Haas, The myth of invasion. Irregular migration from West Africa to the Maghreb and the European
Union, IMI research report, University of Oxford, October 2007.
29
Human Rights Watch, US: Immigration Policy Harms Women, Families, Press Release. 2009.
30
De Lucas, J., Reforma del marco jurídico de la inmigración: políticas que no superan el test básico,
Papeles de Relaciones Ecosociales y Cambio Global, No. 105, Madrid, 2009, pp. 125-122.
31
Cornelius, W., Reforming the Management of Migration Flows from Latin America to the United States,
The Center for Comparative Immigration Studies, University of California, San Diego, Working Paper
170, December 2008. See also: International Migration Institute, A transatlantic comparison of SouthNorth migration: The experiences of Mexico and Morocco, Policy Brief No. 1, UK, March 2009
32
For example, many European countries are increasingly restricting access to family migration visas,
long-term residence status and citizenship, through e.g. heightening requirements in measures such as tests
of language and knowledge of the country. See for instance changes to the Immigration Regulations in the
United Kingdom in: Home Office Statement of Intent: Family Migration, June 2012, regarding new
requirements for family migration visas, as well as the intention to end the permanent possibility to
regularise status after 14 years of residence in the UK (if some period of the residence has been regular).
33
Ratha, D. and Shaw, W., South-South Migration and Remittances, Working Paper No. 102, World
Bank, Washington D.C. 2007, page 26-27.
34
Donato, K. M., Wagner, B., and Patterson, E. (2008), “The cat and mouse game at the
Mexico-U.S. border: Gendered patterns and recent shifts.” In: International Migration Review 42 (2):
330–59; Donato, K. M., Gabaccia, D., Holdaway, J., Manalansan IV, M., and Pessar, P.R. (2006), “A
glass half full? Gender in migration studies.” In: International Migration Review 40 (1): 3–26;
Hondagneu-Sotelo, P., Gendered transitions: Mexican experiences of immigration. University of
California Press, Berkeley 1994; Hondagneu-Sotelo, P., Gender and U.S. immigration: Contemporary

40

trends. University of California Press, Berkeley 2003; Houstoun, M.F., Kramer, R.G., and Barrett, J.M.,
(1984), “Female predominance of immigration to the U.S.” In: International Migration Review 18 (4):
908–63; Kanaiaupuni, S. M. (1998), “The role of women in the social process of migration:
Organizational strategies of Mexican households.” Unpublished manuscript, University of Wisconsin–
Madison; Kanaiaupuni, S. M. (2000), “Reframing the migration question: Men, women and gender in
Mexico.” In: Social Forces 78 (4): 1311–48; Lindstrom, D. P., The differential role of family networks in
individual migration decisions. Paper presented at the annual meeting of the Population Association of
America, Washington, DC, 1991.
35
In Latin America, these structures are not homogeneous: while in Mexico there is a
predominantly patriarchal family system, matri-focal families are the general rule in the Caribbean
region, particularly in the Dominican Republic (See for example: Donato, K.., U.S. Migration from
Latin America: Gendered Patterns and Shifts, Annals of the American Academy of Political and
Social Science 2010).
36
Cortés, R., 2011, op. cit., p. 5.
37
Ibid.
38
Cortés, R., 2007, Children and Women Left Behind in Labor Sending Countries: An Appraisal of the
Social Risks, Global Report on Migration and Children 2007; Cortés, R., 2011, op.cit.; Migration, Human
Rights and Sustainable Human Development, UNICEF / UNDP Background Paper for the 2007 Global
Forum on Migration and Development; The Rights of Children, Youth and Women in the Context of
Migration, UNICEF Policy and Practice, 2011; Migration, Development and Children Left Behind: A
Multidimensional Perspective, UNICEF Policy and Practice, 2010.
39
Cortés, R., 2007, op. cit.; Global Report on Migration and Children, October 2007, page 10-12; Cortés,
R., 2011, op. cit. page 6; The Rights of Children, Youth and Women in the Context of Migration, UNICEF
Policy and Practice, 2011, page 15.
40
UNICEF / UNDP Background Paper for the 2007 Global Forum on Migration and Development, pp. 56.
41
E.g. The Rights of Children, Youth and Women in the Context of Migration, UNICEF Policy and
Practice, 2011; UNFPA, State of World Population, A Passage to Hope. Women and International
Migration, Geneva, 2006; United Nations Department of Economic and Social Affairs, World Survey on
the Role of Women in Development: Women and International Migration, 2004; Global Commission on
International Migration, Gender and migration, September 2005.
42
E.g. The Rights of Children, Youth and Women in the Context of Migration, UNICEF Policy and
Practice, 2011; UNFPA, State of World Population, A Passage to Hope. Women and International
Migration, Geneva, 2006; United Nations Department of Economic and Social Affairs, World Survey on
the Role of Women in Development: Women and International Migration, 2004; Global Commission on
International Migration, Gender and migration, September 2005.
43
For an overview of cases of abuse-related migration, see: Jolly, S., Gender and Migration,
Overview Report. BRIDGE, UK.
44
Both researchers and practitioners give account of the difficulties faced by foreign domestic
workers in the Gulf countries.
45
UNFPA, State of the World Population, op. cit.
46
International Labour Organization, Migration and child labour. Exploring child migrant vulnerabilities
and those of children left behind. Working Paper by Hans van de Glind, September 2010.
47
UNFPA State of World Population, op. cit.; GMG, International Migration and Human Rights:
Challenges and Opportunities on the Threshold of the 60 th Anniversary of the Declaration of Human
Rights, 2008, p. 46.
48
Report of the former Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, 14 May
2009 (A/HRC/11/7), para. 26; PICUM, Strategies to End Double Violence Against Women: Protecting
Rights and Ensuring Justice, 2012.
49
Cortés, R., 2011, op cit., p. 5.
50
General Comment 1 on Migrant Domestic Workers, Committee on the Protection of the Rights, of all
Migrant Workers and Members of Their Families, 23 Feb. 2011. In 2011 governments, trade unions, and
employer organizations that make up the ILO adopted the Convention on Decent Work for Domestic
Workers, which establishes the first global standards for domestic workers.
51
General Recommendation No. 26 on Women Migrant Workers, Committee on the Elimination of
Discrimination against Women, 5 December 2008 (CEDAW/C/2009/WP.1/R).
52
Migration policies must be consistent with State obligations under relevant ILO Conventions.

41

53

They are: The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography and the Optional Protocol on the Involvement of Children in
Armed Conflict. The General Assembly adopted on 19 December 2011 the third Optional Protocol to the
Convention on the Rights of the Child, which establishes a communications procedure for violations of
children's rights.
54
All countries except for Somalia, the United States of America and South Sudan.
55
General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside their Country
of Origin, Committee on the Rights of the Child, Committee on the Rights of the Child, 2005
(CRC/GC/2005/6). See also jurisprudence of the Inter-American Court of Human Rights.
56
General Comment No. 20 on Non-discrimination in economic, social and cultural rights (art. 2,
paragraph 2, of the International Covenant on Economic, Social and Cultural Rights), CESCR, 2 July
2009 (E/C.12/GC/20), paragraph 30. Also, see Advisory Opinions of Inter-American Court of Human
Rights cited below.
57
See supra Study of the Office of the United Nations High Commissioner for Human Rights.
58
See supra G.C. No. 6, CRC Committee, para. 18.
59
See supra G.C. No. 6, CRC Committee, para.12.
60
Ibid.
61
See supra G.C. No. 6, CRC Committee, para. 20
62
See supra G.C. No. 6, CRC Committee, para. 19.
63
Article 9 CRC states that separation, against the child‟s wishes must only occur when „necessary for the
best interests of the child‟, and indeed such necessity is to be determined by competent authorities in
accordance with applicable law and procedures and subject to judicial review.
64
See supra G.C. No. 6, CRC Committee, para. 86.
65
General Comment No. 12 on The Right of the Child to be Heard, Committee on the Rights of the Child,
20 July 2009 (CRC/C/GC/12).
66
Protecting the World’s Children: Impact of the Convention on the Rights of the Child in Diverse Legal
Systems, UNICEF 2007.
67
These States are Belgium and the Cook Islands. In its Concluding Observations, the Committee
on the Rights of the Child has recommended that both Belgium and the Cook Islands speed up the
process of withdrawing their respective declaration and reservation regarding Article 2. Belgium:
Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under
Article 44 of the Convention, Fifty-fourth session, Concluding observations: Belgium (Combined
Third and Fourth Periodic Reports), 2010, available at:
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.OPSC.BEL.CO.1.doc; Cook Islands:
Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties Under
Article 44 of the Convention, Fifty-ninth session, Concluding observations: Cook Islands (Initial
and Addendum Reports), 2012, available at: http://www.crin.org/docs/CRC_C_COK_CO_1.pdf.
Furthermore, Japan has a declaration interpreting article 9.1 - that a child should not be separated
from their parents except when it is in their best interests – as not applying in cases of deportation
in accordance with migration law.
68
ICESCR, Article 2, and CESCR, General Comment 3 on the Scope of States Obligations.
69
General Recommendation No. 26 on Women Migrant Workers, CEDAW (see above).
70
Other basic documents include: the American Declaration of the Rights and Duties of Man and the
Inter-American Convention against Torture, the additional Protocols to the American Convention on
Economic, Social and Cultural rights and on the Death Penalty, and, the Inter-American Conventions on
violence against women, forced disappearance of persons and discrimination against persons with
disabilities.
71
See: www.hrcam.org for a comprehensive compilation of these documents.
72
The European Court of Human Rights stated that due consideration should be given to cases where a
parent has settled in a country of destination and wishes to be reunited with their child who is temporarily
in the country of origin. In addition, it may be unreasonable to force the parent to choose between giving
up the position acquired in the country of settlement or to renounce the right to be reunited with the child.
73
See: http://www2.ohchr.org/english/issues/escr/docs/OHCHR_ESCR_Bulletin6-August2011.pdf In
February 2012, the UNICEF Regional Office for Latin America and the Caribbean (UNICEF-TACRO)
submitted an Amicus Curiae to the Inter-American Court of Human Rights. The legal brief requests the
regional court to issue an advisory opinion in regard to the obligations of States Parties to the American
Convention on Human Rights and other related regional treaties with respect to migrant children. The
Court was asked to establish specific legal standards regarding, inter alia: procedures to determine the

42

circumstances that call for special protection measures for migrant boys, girls and adolescents; a system of
guarantees to apply in migration proceedings involving children; standards for the application of
precautionary measures in migration procedures based on the principle of non-detention of migrant
children; state obligations regarding migrant children in custody; due process guarantees related to
children deprived of liberty in migration procedures; the principle of non-refoulement in regard to migrant
children; procedures for the treatment of children seeking asylum or refugee status; and the child‟s right to
family life in cases when parents are deported. OHCHR‟s Regional Office for South America also
submitted information to the Court.
74
Functions of the African Court of Justice and Human Rights include: collecting documents and
undertaking studies and research on human and peoples‟ rights matters in Africa; establishing rules
aimed at solving the legal problems relating to human and peoples‟ rights; ensuring protection of human
and peoples‟ rights; and, interpreting all the provisions of the African Charter on Human and Peoples
Rights, the Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human
and Peoples‟ Rights on the Rights of Women in Africa, and other legal instruments relating to human
rights, to which the States are parties.
75
Cissé, H., The Protection of Fundamental Human Rights of West African Migrants: Possible Recourse
in African Regional and Sub Regional Mechanisms, Justice Without Borders Project, 2010. See: www.jsfjwb-migrants.org
76
See: ICPD Program of Action, Chapter X, paragraph 12. Available at:
http://www.un.org/popin/icpd/conference/offeng/poa.html
77
Ibid, Chapter X, paragraph 12.
78
Ibid, Chapter X, paragraph 18.
79
The United Nations Institute for Training and Research (UNITAR) has been executing the International
Migration Policy Program, an inter-agency program co-sponsored by ILO, IOM, the United Nations
Population Fund (UNFPA) and UNITAR. The aim has been to strengthen the capacity of Governments to
manage migration and to reach a shared understanding of migration policy issues. The program organizes
regional conferences, seminars and training workshops for concerned senior government officials.
80
International Migration and Development. Report of the Secretary-General. A/65/203. 2 August 2010.
81
For more information about the Global Migration Group, see: http://www.globalmigrationgroup.org
82
Ibid.
83
Ibid.
84
The Global Forum on Migration and Development is a voluntary, intergovernmental, non-binding and
informal consultative process that emerged from the 2006 High-level Dialogue on International Migration
and Development.
85
Proceedings, outcomes and recommendations of the GFMD 2010 Mexico are available at:
http://gfmd.org/en/meetings/2010. The program of the GFMD 2011Switzerland Concluding Debate is
available at: https://wpw.gfmd.org/documents/switzerland/Annex-1_GFMD-2011-Concluding-DebateProgram_en.pdf, and the program of the GFMD 2011 Civil Society Days at:
https://wpw.gfmd.org/documents/switzerland/gfmd_swiss11_civil_society_program.pdf.
86
See: Mobilizing Migrant Community and Civil Society Voices, Report for the Second Global Forum on
Migration and Development: The Migrant Forum in Asia (MFA) Experience, MFA 2009.
87
UNICEF Child Protection Strategy, E/ICEF/2008/5/Rev. 1, 20 May 2008.
88
Past Trends towards Increasing ‘Criminalization’ of Irregular Migration Continue; Migrants Face
Racism, Abuse, Appalling Housing Conditions, UNGA Third Committee Told, 22 Oct. 2010. Press release
available at: http://www.un.org/News/Press/docs/2010/gashc3986.doc.htm
89
UNICEF Factsheet on the Impact of the Economic Crisis on Migration and Children‟s Rights, 2009.
90
Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare
System, ARC and Colorlines 2011 (Available at:
http://www.annarbor.com/ARC_Report_Shattered_Families_FULL_REPORT.pdf).This report, published
in November 2011, estimates that nearly 5,100 children currently in foster care in the USA are children of
deported or detained parents. See also: http://www.fathersandfamilies.org/2012/05/16/mi-dhs-takeschildren-from-undocumented-guatemalan-dad/ and http://annarbor.com/news/deported-fathers-childrento-be-listed-on-state-adoption-website/?cmpid=mlive-@mlive-news-a2
91
Ibid.
92
Report of the former Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, 14 May
2009 (A/HRC/11/7), para. 25.
93
Working Group on Arbitrary Detention, Annual Report, 5 January 2010 (A/HCR/13/30).

43

94

Report of the Special Rapporteur on Human Rights of Migrants, Francois Crépeau, 2 April 2012
(A/HRC/20/24).
95
High Commissioner for Human Rights, Statement on International Migrants Day, 18 December 2011,
available at:
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=11723&LangID=E
96
See OHCHR-UNHCR Global Roundtable on Alternatives to Detention, 11-12 May 2011, informal
summary conclusions available at http://www.ohchr.org/EN/Issues/Migration/Pages/Roundtable.aspx
97
See supra, High Commissioner for Human Rights, Statement on International Migrants Day, 18
December 2011.
98
The Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime (the
Bali Process) is co-chaired by the Governments of Indonesia and Australia. The Bali Process brings
together participants to work on practical measures to help combat people smuggling, trafficking in
persons and related transnational crime in the Asia-Pacific region. Initiated at the Regional Ministerial
Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime held in Bali in
February 2002, the Bali Process involves 46 members including the United Nations High Commissioner
for Refugees (UNHCR) and the International Organization for Migration (IOM). There are a further 29
observers to the process. For more information, including Bali Process Members, see:
http://www.baliprocess.net and http://www.baliprocess.net/index.asp?pageID=2145831409
99
The Puebla Process, also known as Regional Conference on Migration (RCM), was established in 1996,
as a result of the Tuxtla II Presidential Summit in February 1996, to provide an inter-governmental
regional migration forum for the exchange of information, experiences and best practices, and overall
consultation to promote regional cooperation on migration within the framework of economic and social
development for the Americas. For more information, including RCP Members, see:
http://www.rcmvs.org
100
Hansel, R., An Assessment of Principal Regional Consultative Processes on Migration. IOM
Research Series, 2010.
101
Article 9 CRC states that separation, against the child‟s wishes, must only occur when „necessary for
the best interests of the child‟, and indeed such necessity is to be determined by competent authorities in
accordance with applicable law and procedures and subject to judicial review (see above).
102
For example in Italy, see Rozzi, E., op. cit., p.186.
103
It should be applied, for example, when: issuing a resident permit to an unaccompanied child;
repatriating children; facilitating family reunification in countries of origin, transit and destination;
designing child protection programs for migrant children and programs to ensure their access to economic,
social and cultural rights; designing regularization programs; considering detention or deprivation of
liberty of the migrant child; and, designing child-friendly programs for consular services.
104
Guidelines on the Formal Determination of the Best Interests of the Child, Provisional Release,
UNHCR, May 2006.
105
Technical Note, Human Rights Standards Relevant to Repatriation Procedures of Unaccompanied and
Separated Migrant Children, UNICEF and National University of Lanús, Argentina, 2011.
106
Recent examples are: Concluding Observations, Spain, CRC/C/ESP/CO/3-4, 3rd November 2010, §27;
b) Concluding Observations, Japan, CRC/C/JPN/CO/3, 22 June 2010, §78. C) Concluding Observations,
Belarus, CRC/C/BLR/CO/3-4 2011§ 68.
107
See supra G.C. No. 6, CRC Committee, para. 20.
108
European Commission (2010), European Commission calls for increased protection of unaccompanied
minors entering the EU, Brussels, 6 May 2010, IP/10/534.
109
See supra, Study of the Office of the United Nations High Commissioner for Human Rights on
challenges and best practices in the implementation of the international framework for the protection of
the rights of the child in the context of migration, A/HRC/15/29, 5 July 2010.
110
See supra, Report of the former Special Rapporteur on the Human Rights of Migrants, Jorge
Bustamante, 14 May 2009 (A/HRC/11/7).
111
Article 19, National Immigration Law T.U. 286/98 (Legislative Decree No. 286/1998 Testo unico delle
disposizioni concernenti la disciplina dell'immigrazione e norme sulla condizione dello straniero (25 July
1998), Children accompanied by irregular migrant parents or foster persons are entitled to the right to
follow the parents/foster persons if they are expelled, but this is a right of the child.
112
There is sufficient case law establishing that this is a breach of the right to family life (Article 8
ECHR). However, in the UK for example, when families do not have legal representation or know their
rights, they are sometimes threatened with separation nonetheless, in order to scare them away, or
otherwise, as some are desperate enough to agree, since it is easier to accommodate separated children

44

than whole families. Examples of relevant case law include: Wallová and Walla v. Czech Republic,
judgment of 26 October 2006 (Application no. 23848/04, para.74-75), Saviny v. the Ukraine, 18
December 2008 (39948/06, para. 57), Havelka and others v. Czech Republic, 21 June 2007 (23499/06,
para. 61), Moser v. Austria, 21 September 2006 (12643/02, para. 70, 73).
113
E.g. see supra, Shattered Families: The Perilous Intersection of Immigration Enforcement and the
Child Welfare System, ARC and Colorlines 2011, p. 17-21; Kanics, J., “Realizing the rights of
undocumented children in Europe” in: Bhabha, J. (ed.) Children without a State: a global human rights
challenge, MIT Press, Cambridge, Massachusetts, p. 138; Rozzi, E., “Undocumented migrant and Roma
children in Italy: between rights protection and control” in: Bhabha, J. (ed.) op.cit., p.192. Also,
procedural safeguards, such as interpretation in court proceedings removing a child from a parent‟s
custody, are not always respected.
114
See: Amicus Curiae submitted by UNICEF-TACRO to the Inter-American Court of Human Rights,
February 2012.
115
Report of the former Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante,25
February 2008 (A/HRC/7/12).
116
See: http://www.libertysecurity.org/IMG/pdf_eu-ep-detention-centres-report.pdf
117
Article 17 of this Directive states that “Unaccompanied minors and families with minors shall only be
detained as a measure of last resort and for the shortest appropriate period of time. Families detained
pending removal shall be provided with separate accommodation guaranteeing adequate privacy” (See:
2008/115/EC, at: http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:348:0098:0107:EN:PDF).
118
The concept of deprivation of freedom is recorded in the United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (Resolution 45-113 of the UN General Assembly of December 14,
1990, Rule 11b). Furthermore, according the Inter-American Commission on Human Rights deprivation
of freedom means "any form of arrest, imprisonment, institutionalization, or custody of a person, for
humanitarian reasons, treatment, care, protection, or for crimes and violations of the law, ordered by or
under de facto control of a judicial or administrative authority or other authority, whether in public or
private institution, which cannot have their freedom of movement. It applies to not just people imprisoned
for crimes or violations and breaches of law, whether they were tried or convicted, but also people who
are under the custody and supervision of certain institutions such as institutions for children; centers for
migrants, refugees, asylum seekers or refugees, stateless and undocumented, and any other similar
institution designed for the detention of persons" (IACHR, Principles and Best Practices on the Protection
of Persons Deprived of Liberty in the Americas. March 2008).
119
Even in the case of children in conflict with criminal law (children alleged as, accused of, or
recognized as having infringed the penal law) and child recidivists, the Committee of the Rights of the
Child has declared that detention should be avoided. See: Committee on the Rights of the Child, General
Comment No. 10 on Children‟s Rights in Juvenile Justice, 2007(CRC/C/GC/10), para 23.
120
See supra G.C. No. 6, CRC Committee, para 61.
121
Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, to the Human
Rights Council, 14 May 2009 (A/HRC/11/7) and Report to the General Assembly, 3 August 2009,
(A/64/213).
122
There are practices in various countries of destination where no precautionary action is taken: whole
families are free or placed in open centers while immigration proceedings are pending. (If necessary,
simple restriction of movement, in the form of non-custodial measures can be applied)
123
Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, May 14, 2009
(A/HRC/11/7), para 62. This position was reaffirmed in the Report of the Rapporteur the following year
August 3, 2010, (A/65/222), para 48.
124
See supra, Report of the Special Rapporteur on the Human Rights of Migrants, Francois Crépeau,
2012.
125
Guidelines for the Alternative Care of Children, Human Rights Council, 15 June 2009
(A/HRC/11/L.13).
126
PICUM Submission to the OHCHR Special Rapporteur on Migrants 2012 thematic report on
Detention, January 26, 2012.
127
Ibid.
128
Detailed standards on conditions of detention are set out in the following UN General Assembly
Resolutions: (1) Standard Minimum Rules on the Treatment of Prisoners, adopted in 1955, approved by
the Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13
May 1977. (2) Body of Principles for the Protection of All Persons under Any Form of Detention or

45

Imprisonment, adopted by General Assembly resolution 43/173 of 9 December 1988. (3) Rules for the
Protection of Juveniles Deprived of their Liberty, adopted by General Assembly resolution 45/113 of 14
December 1990.
129
See supra, Report of the Special Rapporteur of Human Rights of Migrants, Francois Crépeau, to the
Human Rights Council, 2012.
130
See supra, Amicus Curiae submitted by UNICEF-TACRO to the Inter-American Court of Human
Rights in February 2012.
131
See supra G.C. No. 6, CRC Committee, para. 61.
132
See supra Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante, 4
August 2010 (A/65/222), para. 87
133
The well-established principle of non-refoulement in international human rights law applies to all
expulsions of nationals or non-nationals, including migrants, whatever their status, as well as refugees to a
state, where the individual or group of individuals’ lives or freedom would be threatened on the account of
race, religion, nationality or other status or where there are substantial grounds for believing that the
individual would be in danger of being subjected to torture or to other inhuman or degrading treatment or
punishment. This principle is absolute and is not subject to any exceptions, whether in law or in practice,
and applies to all expulsions, regardless of considerations of national security, or other strong public
interests, economic pressures, or heightened influx of migrants. Thus, it applies in cases of repatriation,
which means that states shall not return a child to a country where there are substantial grounds for
believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to,
those contemplated under articles 6 (right to life) and 37 (deprivation of liberty) of the CRC, either in the
country to which removal is to be effected or in any country to which the child may subsequently be
removed.
134
UNHCR Guidelines on Determining the Best Interests of the Child, UNHCR 2008.
135
Silent Harm. A report assessing the situation of repatriated children’s psycho-social health, UNICEF
Kosovo, in cooperation with the Kosovo Health Foundation, March 2012
136
Ibid.
137
UNICEF Child Protection Strategy, E/ICEF/2008/5//Rev. 1, 20 May 2008.
138
Institute of Gender Studies, Young Migrants in Secondary Education, Promoting Integration and
Mutual Understanding Through Dialogue and Exchange of the Mediterranean (MIGS), 2011.
139
Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante (2009),
A/64/213. 3 August 2009.
140
ICESCR, Article 2, and CESCR Committee, General Comment No. 20, Non-discrimination in
economic, social and cultural rights, 2009.
141
Undocumented Children in Europe: Invisible Victims of Immigration Restrictions, PICUM 2008. See
also supra, Report of the Special Rapporteur of Human Rights, Jorge Bustamante, to the Human Rights
Council (A/HRC/17/33).
142
In Italy, the Security Package establishes that renting a house to irregular migrants carries a penalty of
up to three years‟ imprisonment. In the USA, several states particularly Alabama and Arizona have passed
legislation requiring schools to report the immigration status of students and transporting, harboring, or
renting property to irregular migrants will be considered illegal.
143
See supra, A/HRC/15/29, para. 63.
144
Rights of Accompanied Children in an Irregular Situation, Platform for International Cooperation on
Undocumented Migrants (PICUM), Paper prepared for UNICEF Brussels, Nov. 2011.
145
See the case of Yean and Bosico v. Dominican Republic (2005), where the Inter-American Court of
Human Rights referred, inter alia, to the State obligation to guarantee the right of the child to birth
registration, which may under certain circumstances include non-national children.
146
Rights of Accompanied Children in an Irregular Situation, Save the Children and Forced Migration
Studies Program, 2009; Report of Special Rapporteur on the Human Rights of Migrants, (2009); InterAmerican Court of Human Rights, Case Yean and Bosico (2005); Migration, Children and Human
Rights: Challenges and Opportunities, UNICEF, Final Draft 1 November 2010.
147
Report of the Special Rapporteur on the Human Rights of Migrants, Jorge Bustamante (2009),
A/64/213. 3 August 2009, para. 59
148
Kraler, A., Regularisations: A misguided option or part and parcel of a comprehensive policy response
to irregular migration? IMISCOE Working Paper 2009, p.28. Regularization is also possible in France
after 10 years of continuous residence, or 15 years for students („Chevènement Law‟, Loi n° 98-349 du 11
mai 1998 relative à l‟entrée et au séjour des étrangers en France et au droit d‟asile, published in the
Official Journal 12 May 1998, c.f. Karin Sohler, “Country Study: France” in Martin Baldwin-Edwards and

46

Albert Kraler (eds.) “REGINE Regularisations in Europe: Study on practices in the area of regularisation
of illegally staying third country nationals in the Member States of the EU - Appendix A: Country
Studies”, ICMPD, Vienna, January 2009.
149
This has been the most significant regularization avenue since 2009 - between 2009 and 2011, 11,016
applications were granted under this procedure, out of 27,668 regularization applications granted in total.
In 2011, this criterion represented 43.8% of all positive decisions. While disaggregated data is not
available to know how many children were affected by this regularization, the figures from 2011 show
that the 2,910 applications granted for “durable local ties” regularised 3,745 people, which gives some
indication. Centre for Equal Opportunities and Opposition to Racism, Annual Report on Migration 2011,
2012, p.121; Office of Foreigners, Demandes d’Autorisation de Séjour pour Motifs Humanitaires Données
Statistiques – Année d’exercice 2011.
150
New York Times, “Obama to Permit Young Migrants to Remain in U.S.”, 15 June 2012.
151
International Labour Office, A Global Alliance against Forced Labour: Global report under the
follow-up to the ILO Declaration on Fundamental Principles and Rights at Work 2005, Report
I (B), International Labour Conference, 93 rd Session 2005, ILO, Geneva, 2005, pp. 14–15.
152
UNODC Draft Contribution to Joint GMG Thematic Report Migration, Youth and Human Rights:
Challenges and Opportunities
153
See: www.ilo.org (under “trafficking in persons”).
154
See supra, Report of Regional Seminar on Children Who Cross Borders in Southern Africa, Convened
by Save the Children UK in collaboration with University of the Witwatersrand, Forced Migration Studies
Program , May 25 - 27, 2009 in Johannesburg, South Africa.
155
Ibid.
156
See supra G.C. No. 6, CRC Committee, para. 50.
157
Guideline 8, Special measures for the protection and support of child victims of trafficking, The
Recommended Principles and Guidelines on Human Rights and Human Trafficking (2002). Available at:
http://www.unhchr.ch/huridocda/huridoca.nsf/e06a5300f90fa0238025668700518ca4/caf3deb2b05d4f35c1
256bf30051a003/$FILE/N0240168.pdf
158
UNICEF Innocenti Research Centre, Handbook on the Optional Protocol on the Sale of Children,
Child Prostitution and Child Pornography, The United National Children‟s Fund, February 2009.
159
The Committee on the Rights of the Child has stressed its concern “at the disruption and changes in the
family situation due to the high and increasing migration flows and at the high and increasing number of
children left behind either by their mother or father working abroad” (Committee on the Rights of the
Child, Concluding Observations: The Philippines, CRC/C/PHL/CO/3-4). In the case of Romania, the
Committee is concerned “about media reports of several cases of suicide, particularly among children left
behind by migrating parents, although statistics on such cases are not systematically collected”
(Committee on the Rights of the Child, Concluding Observations: Romania, CRC/C/ROM/CO/4. 2009).
160
See supra, Report of Special Rapporteur o the Human Rights of Migrants, Jorge Bustamante, to the
Human Rights Council (A/HRC/11/7 14).
161
Recent work by UNICEF outlines a full methodological guide to gauge the impact of migration on
children and women left behind from a social, economic and psychological perspective applying a mixed
methods approach through household surveys and focus groups (See: Research on International
Migration and Those Left Behind: A Methodological Evaluation, UNICEF 2009).
162
Ibid.
163
In its Concluding Observations to Sri Lanka, the CRC Committee emphasized “its deep concern about
the physical, psychological and social impact that massive women labor migrations have on the rights and
wellbeing of children as most of the over one million women migrants leave behind children, half of
whom are under 6 years old….and the Committee remains concerned over the inconsistent
implementation of protective safety net programmes and the insufficient coordination amongst child-care
authorities to monitor the wellbeing of children of migrant mothers.” (Committee on the Rights of the
Child, Concluding Observations: Sri Lanka, CRC/C/LKA/CO/3-4)
164
Shamir, H., What's the Border Got to Do With It? How Immigration Regimes Affect Familial Care
Provision - A Comparative Analysis. American University Journal of Gender, Social Policy and the
Law.19 Am. U.J. Gender Soc. Pol'y & L. 601.
165
The CRC Committee has pointed out with concern that many children left behind, particularly girls,
“need to take on responsibilities for the household and their younger brothers and sisters owing to, inter
alia, […] the lack of support for these children.” (See: Committee on the Rights of the Child, Concluding
Observations: Ecuador, CRC/C/ECU/CO/4. 2010).

47

166

The CRC Committee has expressed its concern “…about the absence of measures taken to mitigate the
effects of migration of parents on children staying behind. The Committee is concerned that the State
party does not ensure adequate measures of social and psychological assistance for families, as well as an
adequate education for children staying behind…” (Committee on the Rights of the Child, Concluding
Observations: Republic of Moldova, E/C.12/MDA/CO/2).
167
The Global Migration Group (GMG) has identified these children as a vulnerable group and stressed
the need for policies that, “take cognizance of how migration affects these children and protect their rights
by enhancing access to benefits of migration while simultaneously protecting against vulnerabilities” (See:
GMG 2008, International Migration and Human Rights: Challenges and opportunities on the threshold of
the 60th anniversary of the Universal Declaration of Human Rights, GMG, Par. 53. Geneva). The Human
Rights Council has also called upon States to take appropriate measures to promote and protect effectively
the rights of children who are left behind in their country of origin by migrating family members (See:
Human Rights Council 2009, Twelfth Session, Human rights of migrants: migration and the human rights
of the child, Twelfth session, Agenda item 3, Promotion and protection of all human rights, civil, Political,
economic, social and cultural rights, including the right to development, A/HRC/12/L.16, Geneva, 2nd
October, 2009, Para. 3-4).
168
See supra, Report of Special Rapporteur o the Human Rights of Migrants, Jorge Bustamante, to the
Human Rights Council (A/HRC/11/7).
169
Undocumented Children in Europe: Invisible Victims of Immigration Restrictions, PICUM, 2008.
170
Ibid.
171
Children, Adolescents and Migration: Filling the Evidence Gap. UNICEF, UNDESA, SUSSC/UNDP
and University of Houston, 2010.
172
The UN Global Migration Database (UNGMD) has been developed to collect data on the international
migrant stock by age, sex and country of destination, birth and citizenship. A web-based interface of the
UN Global Migration Database was launched in December 2008 and is available at:
http://esa.un.org/unmigration.
173
See supra G.C. No. 6, CRC Committee, para. 82, where it is explicitly stated that “Family reunification
in the country of origin is not in the best interests of the child and should therefore not be pursued where
there is a “reasonable risk” that such a return would lead to the violation of fundamental human rights of
the child.”
174
See: UN General Assembly (2010), Guidelines for the Alternative Care of Children.
On alternative care procedures, article 25 of the CRC asserts: “States Parties recognize the right of a child
who has been placed by the competent authorities for the purposes of care, protection or treatment of his
or her physical or mental health, to a periodic review of the treatment provided to the child and all other
circumstances relevant to his or her placement”.
175
The report Migrants Count: Five Steps Toward Better Migration data, published by the Center for
Global Development in 2009, and endorsed by a wide number of UN Agencies, provides succinct and
clear guidelines to improve the quality and availability of gender and age disaggregated migration data in
line with what the CRC Committee has noted regarding the collection of sufficient and reliable data on
children as an essential part of implementing the CRC.

48

 

 

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