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By Rebecca O’DonnellDirector of Child Circle asbl.

On January 14, 2021, the Court of Justice of the European Union handed down a landmark judgment concerning the interpretation of the provisions of the EU Return Directive in cases involving unaccompanied children whose claim for international protection has been rejected (Case C-441/19 TQ v Staatssecretariis van Justitie en Veiligheid).

The interpretation of the relevant provisions of the Return Directive, in particular Articles 5 and 10, has been explored extensively in policy discussions since its adoption over 10 years ago.  The centrality of the principle of the best interests of the child has been increasingly emphasised in asylum and migration policy; however authorities still struggle with its operationalisation.  The Court’s ruling is valuable in its concrete demonstration of how EU law, including the Charter of Fundamental Rights, requires the principle to be applied in this context.

Much ink will likely be spilled on this judgement. Many policymakers and lawyers across the EU will be analysing carefully the findings of the Court in this sensitive and much contested area. From a timing perspective, the judgment is also significant.  The New Pact on Migration and Asylum, as well as discussions on international cooperation arising out of the Global Compact for Migration, means that the judgement may carry significant implications not only for the application of current law and practice in Europe, but potentially also for the future architecture of EU law and policy in this field and for cooperation with third countries on durable solutions for children.

1. THE ISSUES RAISED BY THE CASE

In June 2017, TQ, an unaccompanied minor, who was then 15 years and four months old, applied in  the Netherlands for a fixed-term residence on grounds of asylum. In his application, he stated that he was born in Guinea in 2002. Following the death of his aunt with whom he had lived from a young age in Sierra Leone, TQ came to Europe. In Amsterdam, he claims to have been the victim of human trafficking and sexual exploitation. In March 2019 the State Secretary for Justice and Security in the Netherlands decided ex officio that TQ was not eligible for a fixed term residence permit and, in accordance with Dutch law, this negative decision also constituted a return decision. In April 2018, TQ brought an appeal against that decision, claiming inter alia, that he does not know where his parents live, that he would not be able to recognise them upon his return, that he does not know any other family members, and does not even know whether he has any such family members.

In the case of TQ, the Dutch authorities followed their policy of automatically imposing a return decision following the rejection of an asylum claim in cases involving an unaccompanied child over fifteen, without examining whether there were adequate reception conditions for the child in the country of return.   Under Dutch law and policy, such an examination was necessary only in cases involving children under 15. Where adequate reception facilities were not available in the country of return, such children were granted a residence permit.  In cases involving children over 15, a decision to return was adopted without such an examination and the children then found themselves effectively in limbo.  Their status in the Netherlands was rendered irregular, became merely tolerated and the obligation to organize a departure in line with the return decision was effectively placed on their shoulders. The authorities had a practice of periodically enquiring into whether the child and their guardian had identified return arrangements.  Once the child turned 18, the Dutch authorities took the position that they could implement the return decision, without the need for adequate reception facilities to be in place.

The District Court of The Hague, sitting in ’s-Hertogenbosch, raised three key questions for interpretation to the Court of Justice in Luxembourg, addressing essentially the following issues: (1) whether under EU law a return decision could be taken without any investigation of whether adequate reception facilities exist and are available for the child in the country of origin; (2) whether making distinctions on the basis of age when granting lawful residence on a territory is compatible with EU law and (3) whether it was permitted under EU law to adopt a return decision, but not undertake any concrete actions to proceed with removal until the unaccompanied child reaches 18.  Under the third prong, the Court also asked whether there is an obligation to suspend the return decision and to grant lawful residence under Article 6(4) of the Directive when an unaccompanied minor does not comply with his obligation to return and the Member State does not and will not undertake any concrete actions to proceed with removal.

In particular as to the first question, the Dutch approach relied on a literal interpretation of Article 10(2) of the Return Directive, which states that, before removing an unaccompanied minor from the territory of a Member State, the authorities are to be satisfied that he or she will be returned to a family member, a nominated guardian or adequate reception facilities. The Dutch authorities argued that this means a return decision itself could be adopted, without such an examination having been undertaken.

The lawyer for TQ submitted inter alia that the Return Directive is to be applied in full compliance with the European Charter of Fundamental Rights, in particular Article 24, and having regard to key human rights instruments such as the UN Convention on the Rights of the Child (UNCRC). Child Circle observations to the lawyer emphasised that the provisions of Article 10(2) of the Return Directive should not be read in isolation. Whereas the Return Directive primarily focuses on regulating the migration control procedures which apply in situations of persons who are irregularly staying, “its child specific provisions recognise that return of unaccompanied children can only occur in a manner which also takes account of the child protection responsibilities and procedures that are simultaneously involved”.

The Court’s judgment provided a clear and unequivocal recognition of Member States’ obligation to apply the best interests principle at all stages of the procedure and to all children, regardless of their age. In particular the Court found that, before taking any return decision, States should undertake a general and in-depth assessment of the situation of an unaccompanied child, taking due account of the best interests of the child.  This would include ensuring that adequate reception facilities are available in the State of return.  Failure to do so would mean that a child could be subject of a return decision, but they could not be removed, and the Court recognised that this situation would “be contrary to the requirement to protect the best interests of the child” given that children would be “placed in a situation of great uncertainty” as to their legal status and future.

The Court also held that older children cannot be discriminated against, simply on the basis of their age. It emphasized that “the criterion of age cannot be the only factor taken into account in order to ascertain whether there are adequate reception facilities”.

In responding to the third question, the Court essentially closed a possible loophole, under which a Member State might take a decision ostensibly based on the best interests of the child but rely on the child to voluntarily return, or refrain from implementing the return decision until the child is over 18.  The Court’s ruling effectively requires that a return decision should only be adopted if there is a real possibility of implementing the decision in a way that fulfils the best interests of the child.

2. SHAPING FUTURE PRACTICE, LAW AND TRANSNATIONAL COOPERATION

Need for best interests procedures
The Court did not address the question in relation to the suspension of a return decision under Article 6(4), perhaps due to its position that the return decision should not be adopted in the first place if adequate reception facilities are not in place. The Court’s reticence on this point may also be connected with the fact that there is a delicate interplay of EU and national law at this juncture, with national law typically providing rules on the grant of other humanitarian protection statuses. However, the emphasis in the judgment on the centrality of individual assessments prior to taking return decisions points firmly to the need for States to develop best interests procedures which should precede any decision on the future of the child.  This best interests procedure could lead to return as one possible outcome, but also to other outcomes, such as integration in the host country, should the individual circumstances and the best interests of the child so require.  This coincides with the Commission’s recommendations to focus on finding durables solution for all unaccompanied children.  In particular, the Commission Return Handbook (revised in September 2017) notes that: “Durable solutions are crucial to establish normality and stability for all minors in the long term. Return is one of the options to be examined when identifying a durable solution for unaccompanied minors and any Member State’s action must take into account as key consideration the best interests of the child. This point is also emphasised in the Commission Communication on the protection of children in migration. Guidance to respect children’s rights in return policies and practices (produced by UNICEF, IOM, Office of High Commissioner for Human Rights, Child Circle, ECRE, Save the Children and PICUM) provides practical recommendations on designing return procedures with this in mind.

The ruling by the Court on the need to carry out a general and in-depth assessment of the child’s situation before adopting a return decision also raises serious questions about the “streamlined” approach to migration and asylum proposed in the New Migration and Asylum Pact, which aims to integrate processes currently separate, namely asylum and return.  As noted in a recent report by Child Circle and KIND, “it will be important to ensure that this approach does not obscure the relevance of laws other than international protection, nor create any obstacles to the application of .. fundamental rights”.  These include claims inter alia under the UN Convention on the Rights of the Child.

An in-depth assessment of the individual circumstances of the child in all cases is also vital to ensure that other EU law obligations in relation to their situation are fulfilled. In certain circumstances, these may include provisions concerning general assistance and support in the Anti-Trafficking Directive and in the Sexual Abuse Directive. An obligation to carry out best interests procedures is essential to improve national implementation of the Anti-Trafficking Directive at national level, in particular Article 16 which provides that “Member States shall take the necessary measures with a view to finding a durable solution based on an individual assessment of the best interests of the child”.  Indeed, TQ’s claims to have been trafficked and exploited would surely have benefited from a fuller assessment of his circumstances. The upcoming EU Anti-Trafficking Strategy provides an important opportunity to prioritise EU action which can support Member States in developing or strengthening best interests procedures, including access to quality legal assistance, and measures to find durable solutions or children who have be trafficked or are at risk of trafficking.

Strengthening guardianship and quality legal assistance
Significantly the Court also underlined, that before adopting a return decision the State “must necessarily hear the unaccompanied minor concerning the conditions under which he or she might be received in the State of return”. This finding underscores the importance of strengthening key procedural safeguards for unaccompanied children, namely independent guardianship and legal assistance, both of which are vital to hearing the child and more generally conducting a proper assessment of the child’s situation and examining their best interests. It is apparent from the case that, in the Netherlands, TQ benefitted from these critical safeguards but more broadly across Europe, there are serious gaps in unaccompanied children’s ability to access independent guardians and quality legal assistance, which it is urgent to remedy. The KIND Child Circle report on Advancing Protection for Unaccompanied Children underlines that “the EU has a vital and multifaceted role to play in ensuring free quality legal assistance as a central safeguard for unaccompanied children in migration across the EU” and sets out a range of recommendations in terms of law reform, policy development and practical measures of support.  Support for competent and independent guardians can be strengthened through the European Guardianship Network, supported by the EU, and the work of the Fundamental Rights Agency (FRA) on guidance for guardianship systems, the latter having been initiated under the last EU Anti-Trafficking Strategy.

Transnational cooperation
The Court’s findings also point to the need to strengthen the means necessary to assess relevant circumstances and conditions in third countries, which can clearly be challenging. Tracing family and restoring family links can prove difficult and time-consuming, in particular if the child or family members do not, or are not in a position, to cooperate. Family tracing may not always be in the best interests of the child.  And where no family members are identified, it can then prove difficult to identify whether there are alternative appropriate reception conditions for the child.  In the past, Dutch policy has supported an approach of attempting to finance reception facilities in countries of origin including Afghanistan and Iraq, in cooperation with several other European countries in the EU-funded ERPUM project, which proved ultimately unsuccessful. The project came under sustained criticism from civil society organisations for a variety of reasons, including the fact that adequate reception could not simply be equated with the availability of a shelter alone, but rather required the existence of a child protection system to ensure the safety of the children and their reintegration, based on their individual needs and circumstances.

It is time now for the EU to help build proper transnational procedures with third countries around durable solutions. In its Focus Paper on returning unaccompanied children, the FRA underlined that: “The development of transnational case management mechanisms between EU Member States and third countries will be important to support the identification of durable solutions for children and the implementation of reintegration measures, with a particular focus on the cooperation between child rights and child protection actors, including their guardians and lawyers. As one element, the cooperation mechanism set up by the 1996 Hague Convention on Child Protection offers such an institutionalised channel of communication and cooperation with those third countries which are parties to it.”

Other implications for proposals under the Pact
Other implications of the judgment for different proposals under the New Migration and Asylum Pact should be carefully considered.  Importantly, the Court’s injunction against a distinction made between children solely on the basis of age must surely prompt reconsideration of the legitimacy of the distinction proposed by the Commission in connection with the application of border measures to families with children aged over 12, as opposed to families with children aged under 12, with only the latter being exempt from the proposed accelerated procedures with reduced safeguards and potential detention. For further reflections on the proposed EU border procedures, see Child Circle and KIND’s Briefing Paper and key recommendations on this issue.

Conclusions

The Court’s ruling should fuel efforts to establish more effective ways to fulfil the dual responsibilities of States to manage migration and to protect a particularly vulnerable category of children. The obligation to assess properly the situation of unaccompanied children, rather than simply waiting for them to age out and to be removed then as irregular adults, will require better case management and coordination between actors, both in the host country and transnationally. Strengthening information and independent assistance to the child should help ensure their views are heard and that they are better engaged in understanding the options which are open to them or not. The involvement of child protection authorities alongside migration authorities may in fact allow durable solutions to be approached in a more rigorous, yet practical way, truly taking account the individual circumstances of the child while ensuring continuous and stable support to them.The Court’s judgment may add some much needed impetus, at a crucial time of reform, to this more constructive approach to protecting children, whilst managing migration.