The Interplay Between the 1951 Geneva Refugee Convention and the 1989 UN Convention on the Rights of the Child

Abstract

The interplay between the 1951 Refugee Convention and the 1989 Convention on the Rights of the Child (CRC) is of particular importance, as children today make up around 41% of all refugees. The Refugee Convention grants subsidiary international protection for persons who have legally or de facto lost the protection of their home state because it either persecutes them or exposes them to persecution by non-state actors. The Convention contains various substantial guarantees for recognized refugees and persons seeking refugee status. However, it does not contain any explicit provision on refugee children. This is precisely where Article 22 CRC comes into play, which states that refugee children are entitled to “appropriate protection and humanitarian assistance”. The essay delineates the definition of what is meant by a “refugee child” in the light of both Article 22 CRC and Article 1A(2) of the Refugee Convention. Furthermore, it works out that Article 22 CRC can strengthen the Refugee Convention’s scant commitment to children’s rights. This is particularly evident in the CRC’s requirements for the treatment of children in asylum procedures, which are not addressed at all in the Refugee Convention.

1. Rights and Protection of Refugee Children on the International Plane

1.1. Scoping the Problem

Flight, expulsion, and displacement are constant in human history, and they have by no means disappeared today. On the contrary, flight and displacement have increased significantly, particularly in recent years, and they also affect children to a considerable extent. As of the end of 2024, approximately 50 million children were displaced due to numerous armed conflicts and violence globally, with children accounting for around 41% of all refugees (as to the data and figures, see UNICEF 2025; UNHCR 2025). Therefore, the article examines the legal provisions governing international refugee law to determine whether they adequately address the needs and concerns of children in current flight situations. In this respect, the 1951 Convention relating to the Status of Refugees (Refugee Convention), and the 1989 Convention on the Rights of the Child (CRC) are of particular importance.

1.2. Scope and Objectives of the Refugee Convention

The Refugee Convention is one of the oldest human rights treaties. The widespread displacement and refugee situations towards the end of, and in the years following World War II made it seem urgent to regulate the legal status of refugees in an international treaty (for more detail, see Einarsen 2024, paras. 21–67). After a drafting process that lasted around five years, the text of the Refugee Convention was adopted by the UN General Assembly at a special session on 28 July 1951 in Geneva and opened for signature. The treaty came into force in April 1954 for the first six signatory states: Australia, Belgium, the Federal Republic of Germany, Denmark, Luxemburg and Norway. Today, the Refugee Convention has a total of 149 contracting parties. Revised and modernized by a protocol signed in New York in 1967, the Refugee Convention regulates the legal status of refugees and forms the nucleus of international refugee law.

The Refugee Convention is of paramount importance for those who benefit from its guarantees. It creates subsidiary international protection for persons who have legally or de facto lost the protection of their home state because it either persecutes them or exposes them to persecution by non-state actors. By granting subjective individual rights to refugees, the Refugee Convention is one of the first multilateral agreements in history to be designed in terms of international human rights protection. It contains various substantial guarantees for refugees as vulnerable persons which are not adequately expressed in other human rights treaties. Of particular importance are the cardinal principles of non-refoulement (Article 33) and the prohibition of penalizing illegal entry (Article 31). In addition, the Convention contains residency rights as well as the rights to work, education and welfare, freedom of religion, and protection against discrimination. Although the receiving state is entitled to withhold certain rights—such as the right to work—until the refugee has established a closer connection to the receiving state, various obligations under the Refugee Convention must be met toward refugees even before they have been recognized as such (see Goodwin-Gill and McAdam 2021, pp. 595 et seq.; for a more liberal interpretation see, e.g., Hathaway 2021, pp. 177, 925). This applies, for instance, to the child’s right to education under Article 22 of the Refugee Convention, as denying this right in cases where there are significant delays in processing asylum applications might result in lifelong disadvantages (see Section 4.7). Overall, the Refugee Convention has a particularly altruistic and humanistic structure of obligations. It expressly guarantees positive protection against persecution by strictly prohibiting refoulement to the persecuting state and ensuring various rights for refugees in the host country (Zimmermann and Herrmann 2021, p. 222; Thote 2025, p. 344). This structure clearly distinguishes the Refugee Convention from other human rights conventions, according to which the contracting parties are mainly held responsible for guaranteeing rights to the individual and not infringing upon their freedoms by actions of their own state authorities.

Although many of the refugees were minors when the Refugee Convention was drafted, it does not contain any explicit provision on refugee children. Its legal text fails to address the specific needs and challenges that refugee children face in course of their flight experience. This deficit is surprising in view of the Constitution of the International Refugee Organization (IRO)—a temporary UN agency that existed from 1946 to 1952 to help refugees and displaced people after World War II—which reflected for the first time ever not only an individual approach to refugees but included new elements in the refugee definition such as the general incorporation of unaccompanied children situated outside their country of origin (for a fuller account, see Holborn 1956). The explicit inclusion of “unaccompanied children who are war orphans or whose parents have disappeared and who are outside their countries of origin” into the IRO Constitution1 was an innovation at that time with a significant practical impact. Nonetheless, this provision was not explicitly incorporated into the 1951 Refugee Convention. There is only a rather indirect reference in Article 1A(1) of the Refugee Convention, in that this provision for defining refugees also refers to the IRO Constitution and thereby declares its requirements to be relevant for the Refugee Convention.

It is only Recommendation B, forming part of the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,2 that deals with issues related to the unity of refugee families. In this context it is, inter alia, recommended that governments should take the necessary measures for ensuring family reunification and the well-being of refugee children, in particular unaccompanied children. The need to include the best interests of a child when protecting minor refugees has recently been reaffirmed in the 2018 Global Compact on Refugees,3 which, together with the UN Migration Compact of the same year,4 provides a broad basis for establishing common principles, objectives, and political commitments in this area (Klein 2023). Although both compacts are merely soft law instruments, they contribute to an understanding of the special refugee situation of children. Together with Recommendation B, they are capable to influence the interpretation of the Refugee Convention. The same is true for the guidelines issued by United Nations High Commissioner for Refugees (UNHCR) which replaced the historical IRO in 1951/52 and is the main UN agency for refugees today.5 The High Commissioner repeatedly points out the need for the competent state authorities to treat every refugee child, especially unaccompanied refugee children, with the necessary sensitivity. This sensitivity means that the arrival state must take into account their particular vulnerability as children, and, for instance, should not lock them up in detention centers (UNHCR 1997 and 2009).

In addition, the guarantees for refugees set forth in the Refugee Convention are accompanied by other human rights norms that apply to displacement, flight, or migration (Edwards 2022, pp. 567–68). According to Article 5 of the Refugee Convention, other international agreements remain unaffected by the provisions of the Convention. In this sense, the provision aspires to guarantee the Refugee Convention rights as “minimum rights” and constitutes no obstacle to the granting of additional rights and benefits to refugees (Robinson 1953, p. 79). The case law of the European Court of Human Rights (ECtHR) plays an important role for European states in this context. In interpreting the relevant guarantees of the European Convention on Human Rights, the ECtHR repeatedly refers to the provisions of the Refugee Convention and supplements them with human rights aspects (ECtHR 2011 and 2012). The UN treaty-based human rights monitoring bodies also regularly deal with universal human rights aspects of flight and migration that go beyond the minimum standards of the Refugee Convention (for more detail, see Edwards 2013).6 In this sense, general human rights protection is, in principle, capable of filling the gaps left by the Geneva refugee regime (see, e.g., Edwards 2005; Hathaway 2021, pp. 29–30, 87–90; Reyhani 2022, p. 124).

This legal practice is supported dogmatically by the rules of interpretation of the Vienna Convention on the Law of Treaties (VCLT), which are also reflected in customary law. Article 31(3) VCLT states that reference may be had to “any relevant rules of international law applicable in the relations between the parties” in interpreting a treaty. The relevant rules may even include rules that have been adopted after the entry into force of the treaty being interpreted (Aust 2013, pp. 216–17). The expression “between the parties” limits the relevant rules to those states that have also accepted the other treaty. Most states parties to the Refugee Convention have also ratified international human rights treaties. With the exception of the United States of America, all states parties to the Refugee Convention are bound by the CRC. In addition, customary rules and general principles are always suitable for constituting “relevant rules.” (McAdam and Dunlop 2024, para. 5).

1.3. Scope and Objectives of the Convention on the Rights of the Child

It is precisely in this respect that the 1989 Convention on the Rights of the Child comes into play. The CRC is a truly global human rights convention, dedicated to the rights of the child and entered into force on 2 September 1990. As of today, the CRC has 196 contracting parties, i.e., three more states than the United Nations has member states.7 The only state that has not yet ratified the CRC but has only signed it is the United States of America.

Given this large number of contracting parties, the fundamental provisions of the CRC that recognize every child as a legal subject regardless of their origin can be regarded as having become customary international law (Schmahl 2025, § 10 para. 187). This at least applies to the “general principles” of the Convention, namely the prohibition of discrimination in Article 2 CRC, the guarantee of the best interests of the child in Article 3 CRC, the right to life, survival and development in Article 6 CRC, and the child’s right to have a say in matters affecting them in Article 12 CRC.8 Furthermore, Article 22 CRC explicitly provides protection for children who are received as refugees or who are seeking refugee status in a host state by stating that they are entitled to “appropriate protection and humanitarian assistance”. In this respect, the CRC takes over some of the ideas emanating from the non-binding 1924 Geneva Declaration of the Rights of the Child, adopted by the Assembly of the League of Nations, which arose out of problems faced by children, including war orphans and displaced children, during and after World War I (Pobjoy 2019, p. 819). The 1924 Declaration already stipulated that the “child must be the first to receive relief in times of distress” (1924 Declaration, p. 43). Similarly, the likewise non-binding 1959 UN Declaration on the Rights of the Child explains in its principles that the “child shall in all circumstances be among the first to receive protection and relief” (1959 Declaration, Principle 8).

Neither the “general principles” of the Convention nor Article 22 CRC do themselves regulate the status of minor refugees or minors seeking refugee status, or of minors accompanying refugees or family members seeking refugee status. Instead, the refugee status of children, or those seeking refugee status, respectively, is to be regulated by the applicable norms of domestic or international law and procedures, and thus, mainly by the Refugee Convention (Detrick 1999, pp. 363–64; Schmahl 2021, Art. 22 para. 7).9 To a similar extent as Article 5 of the Refugee Convention, Article 22 CRC is open to influences from other human rights treaties, provided that the relevant state is a party to the treaty concerned. Furthermore, from the perspective of international treaty law, Article 31(3) VCLT may also be invoked in this context. Last not least, Article 41 CRC states that “nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of the child…”. The Committee on the Rights of the Child (CRC Committee), which is tasked with monitoring the Convention guarantees, stresses that the provisions in domestic and international law that are most favorable to the realization of the rights of all children shall apply in cases where standards differ or in any other event of discrepancies in substance.10

1.4. The Value of Opening Clauses

In view of these opening and favorability clauses—Article 5 of the Refugee Convention as well as Articles 22 and 41 CRC—it seems worthwhile and potentially beneficial to analyze the interplay between the Refugee Convention and the CRC more closely. This concerns not only the definition of refugee children and children seeking refugee status, but also the protection to which they are entitled under international law.

2. Differences in Scope, Contracting Parties and Monitoring Mechanisms Between the Refugee Convention and the CRC

At the outset, however, it should be remembered that both conventions are independent treaties under international law, and their legal regimes cannot simply be interpreted as a composite. The two treaties already differ in their substantial content. While the Refugee Convention guarantees a basic set of rights for refugees, including the most important principle of non-refoulement (Article 33 of the Refugee Convention), the CRC contains a wide-ranging catalog of civil, economic, and social rights that protect children in all situations and stages of development until they reach the age of 18 (Article 1 CRC). Both conventions also have different scopes. They do not have identical states parties; as demonstrated, there is a difference of around 50 ratifications between them. Furthermore, the two conventions are subject to distinct implementation and monitoring mechanisms. Thus, the contracting states have deliberately refrained from establishing an independent monitoring or judicial body for the Refugee Convention. Although the office of the UNHCR and the Executive Committee attached to it have been installed for the purposes of interpreting the Convention in a harmonious way (Aleinikoff 2014), there is still a lack of stable and reliable legal interpretation regarding the standard of protection offered to refugees, especially since neither body can provide authoritative rulings or opinions, but can only issue guidance on the 1951 Convention’s interpretation. Article 38 of the Refugee Convention and Article IV of the 1967 Protocol stipulate that any dispute about the interpretation or application of the 1951 Convention that cannot be resolved by other means can be referred to the International Court of Justice (ICJ). However, the ICJ has never been called upon to interpret the 1951 Convention, and it is unlikely that it ever will be (McAdam and Dunlop 2024, para. 5). The interpretations given by the individual contracting states in practice sometimes differ so much that legal scholars have developed the term of a “refugee roulette” in this respect (Schultz 2018, p. 5).

In contrast thereto, the CRC has a specific monitoring body, the CRC Committee, which is responsible for monitoring the obligatory periodic state reports of the contracting parties to the CRC (see Articles 43–45 CRC). In addition, the Optional Protocol to the CRC on a Communications Procedure (OPIC), which came into force in 2014, supplements the enforcement of the rights guaranteed in the CRC by offering possibilities of a state and an individual complaint procedure to the CRC Committee. Although the views expressed by the CRC Committee, similar to those of the UNHCR, are not legally binding according to Article 45 CRC and Article 10(5) OPIC, they enjoy a high level of authority due to the independent expertise of the members of the Committee and their commitment to interpreting the Convention guarantees (Schmahl 2021, Art. 44–45 para. 47). This aspect, together with the general principle of good faith under international law, means that the contracting parties to the CRC are required to properly address the opinions of the CRC Committee and to take them seriously into account. Deviations from the CRC Committee’s views must in any case be explained and justified in an objectively plausible manner (Klein 2009, at § 127 paras. 27, 31). This clearly distinguishes the effectiveness of views and statements of the CRC Committee from the guidelines issued by the UNHCR, which states can disregard with less justification.

3. Similarities in Not Granting an Individual Right to Asylum

Irrespective of these differences, there is one key similarity between the two treaties: an obligation to grant territorial asylum to children is stipulated neither in the CRC nor in the 1951 Refugee Convention and its 1967 Protocol. They are rather based on a general assumption, still widely held, that sovereign states have the right to control admission to their territories (McAdam 2006; dissenting Smyth 2019, p. 430). International law traditionally assumes that the granting of asylum is not a fulfillment of an individual right but lies within the state of refugium’s discretionary power. Consequently, children, just like adults, do not have an individual right to asylum, but only a right to seek protection recognized under international law. To make an asylum claim, the asylum seeker must have already flown the country of persecution (Milej 2022, p. 133). The opinion of the CRC Committee, according to which all asylum-seeking children, including those who are accompanied by or separated from their parents, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection irrespective of their age,11 stands in line with these international law prerequisites.

4. Interactions Between the Refugee Convention and the CRC

As mentioned, the Refugee Convention and the CRC differ in their scope of application and the extent of the guarantees they contain. Most importantly, there are areas covered by only one of the two conventions. In such cases, the other convention can be, as a matter of principle, invoked to fill in the gaps left by its counterpart. This may mean that a right from one convention should be respected if the other convention is silent on the matter. Above all, however, the rights of one convention must be interpreted in the light of the other treaty. This follows not only from Article 31(3) VCLT, but also from the respective opening or favorability clauses of the two treaties and from the fact that—with exception of the United States—all other 148 contracting parties to the Refugee Convention or its Protocol have ratified the CRC.

4.1. Definition of Refugee Children

There is no doubt that regarding the rights, guarantees, and benefits of refugee children, the definition of the term “refugee child” is crucial. However, neither of the two conventions contains a comprehensive definition of what is meant by a “refugee child.”

Article 22(1) CRC only mentions that it applies to both “a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law”. The use of the word “or” in Article 22(1) CRC affirms the established principle that the status as a refugee is not dependent on the determination of domestic law.12 Hence, the fact that a child is not considered a refugee under domestic law does not preclude him or her from the protection of Article 22(1) CRC in cases where he or she qualifies as a refugee under international law. But still, Article 22 CRC does not contain a definition of the term “refugee”. Article 1 CRC, which defines the term “child” as a person up to the age of 18, does not mention the term “refugee child” either. Consequently, the definition in Article 1A(2) of the Refugee Convention must be used to fill in the term “refugee child” in Article 22 CRC (similarly, Van Bueren 1995, p. 361; Pobjoy 2019, p. 826). According to Article 1A(2) of the Refugee Convention, a refugee is a “person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and who is outside the state of which he or she is a national or in which he or she had maintained habitual residence”. Persons, including children, who flee but remain within the borders of their country of origin are generally outside the scope of Article 1A(2) of the Refugee Convention (Schmahl and Jung 2018, p. 4).

Conversely, the word “child” or “minor” is neither mentioned nor explained in Article 1A(2) or elsewhere of the Refugee Convention and its 1967 Protocol. The mandate of the Refugee Convention is rather age-neutral, applying to all individuals without explicit reference to underage refugees. The CRC, by contrast, places its focus only on the needs of children and responds to them by establishing conditions for children to develop in a safe and stable environment (Mukuki 2022, p. 82). According to the general thrust of Article 1 CRC, children are regularly understood to be persons below the age of 18 years. This definition of children applies, in principle, to all guarantees of the CRC. The Convention upholds an egalitarian view in responding to children’s needs and therefore sets the key protection standards also for refugee children. Hence, the concept of a child refugee within the meaning of Article 22 CRC must be interpreted not only in the light of the Refugee Convention but also in the light of Article 1 CRC. The CRC Committee has rightly noted the intermingling of the two treaties by highlighting the need to consider the development of, and formative relationship between, international human rights and refugee law. Consequently, the refugee definition of the Refugee Convention must be interpreted in an age-sensitive manner for the purposes of the CRC, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children.13 Likewise, the term “refugee” in Article 22 CRC must be interpreted in the light of the Refugee Convention. Furthermore, the CRC Committee observes that where the requirements for granting refugee status under the Refugee Convention are not met, refugee children shall benefit from available forms of complementary protection to the extent determined by their needs and best interests.14 The CEDAW Committee has also repeatedly expressed analogous views on the protection rights of (female) persons who were victims of gender-based persecution (see the profound analysis by Gleeson 2024, pp. 56 et seq.).

4.2. Concept of Persecution

This finding on the need for a harmonious interpretation of the term “refugee child” across the two conventions does not, of course, solve all the legal problems that may arise in connection with the treatment and protection of refugee children or those seeking refugee status. First, the definition in the Refugee Convention cannot be applied to states that—like, e.g., India—have not ratified this convention. In such a case, only Article 22 CRC and its reference to applicable domestic law are relevant.

Second, the key requirement to qualify as a refugee under Article 1A(2) of the Refugee Convention is the concept of persecution. What is to be understood by “persecution” is, however, not explained in Article 1A(2) of the Refugee Convention. Also, Article 22 CRC does not provide any information on this term. Yet, “persecution” is, both in practice and legal literature, generally understood as requiring evidence of the sustained or systemic violation of fundamental human rights in a discriminatory manner, such as the right to life, the prohibition of the death penalty, the prohibition of torture, the prohibition of slavery or the prohibition of arbitrary punishment. Other human rights violations may also be included in this list if they are of a certain intensity (Hathaway and Foster 2014, pp. 200 et seq.; Zimmermann and Herrmann 2024, paras. 248 et seq.). Persecution in this sense can be carried out by judicial officers and state authorities, but also by other actors, such as occupying powers or even non-state actors, provided that the person concerned does not receive adequate protection from the competent state authorities (Zimmermann and Herrmann 2024, paras. 277–329).15 To meet the requirement of a genuine risk, an applicant, in principle regardless of whether he or she is an adult or a child, must demonstrate both subjective fear of persecution and an objective risk of prospective harm. Only under certain circumstances, the reasoned and concrete risk of persecution can be sufficient (UNHCR 2019, paras. 37 et seq.).

Importantly, the causes of persecution enumerated in Article 1A(2) of the Refugee Convention have a similar content as the discrimination grounds prohibited by Article 2(1) CRC. The belonging to a “social group” as set out in Article 1A(2) of the Refugee Convention serves as a subsidiary catch-all provision (Schmahl and Jung 2018, p. 4). The term turns out to be open to development for the diverse and changing manifestations of discrimination-prone persecution situations. For instance, according to the jurisprudence of the Court of Justice of the EU (CJEU), homosexual persons—be they adults or children—can form a particular social group within the meaning of Article 1A(2) of the Refugee Convention. Since secrecy and clandestineness about one’s sexual orientation cannot be demanded in the credibility assessment of the asylum seeker (CJEU 2013, paras. 66 et seq.), the authorities of the member states of the EU shall not enquire intimate details of sexual practices or other “tests” to prove homosexuality (CJEU 2014, paras. 64 et seq.).

The crucial question in relation to refugee children is, however, whether the concept of persecution should be interpreted in a child-specific manner. The UNHCR and some scholars argue that a lowered standard of persecution should generally apply to children (UNHCR 2009, p. 8; Villarreal 2023, p. 769). This means that acts that would not yet amount to persecution if committed against adults could nevertheless usually constitute persecution if committed against children. Yet, this extensive approach has not been accepted, at least so far, by the community of the contracting parties to the Refugee Convention (Zimmermann and Herrmann 2024, para. 459). Moreover, given that any situation of persecution must be analyzed on an individual basis under Article 1A(2) of the Refugee Convention, it is difficult to argue why a lowered standard of persecution should be applied in general terms when dealing with refugee claims brought forward by children and adolescents.

Nevertheless, in individual cases, and depending on the age and maturity of the child concerned, acts that would not otherwise constitute persecution may have particularly serious effects on the child. It therefore seems appropriate in such individual cases to lower the usual standard applicable to adults and consider these acts as “persecution,” even if this would not be the case for adults (rightly so, Zimmermann and Herrmann 2024, para. 459). In fact, children may be exposed to acts of persecution that are specifically targeted at their situation as children. These grounds for persecution include, among others, persecution of the entire family, recruitment of minors into armed forces or paramilitary groups, trafficking in children, child prostitution, sexual exploitation of children, and genital mutilation of young girls.16 These child-specific forms and manifestations of persecution may justify the granting of refugee status. This is especially true because an action that injures an adult could have catastrophic consequences for a child and his or her future development (Crock 2025). States parties should therefore give utmost attention to such child-specific forms and manifestations of persecution in national procedures for determining refugee status (Schmahl 2021, Art. 22 para. 4).

4.3. Grounds of Persecution

Another question is to what extent the grounds for persecution specified in Article 1A(2) of the Refugee Convention—namely “race, religion, nationality, membership of a particular social group or political opinion”—are applicable to children tel quels or need to be (re-)interpreted in a child-specific manner. Again, it should be noted that these grounds for persecution have a similar content as the prohibited grounds of discrimination under Article 2(1) CRC. However, grounds for persecution such as “race” or “nationality” under Article 1A(2) of the Refugee Convention and Article 2(1) CRC do not pose any interpretation problem in this respect, since children inherently belong to either a particular ethnic group or a particular nationality. Therefore, there is simply no difference in the treatment of adults and children (Zimmermann and Herrmann 2024, para. 460).

In contrast, the formation of a “political opinion” as a possible ground for persecution presupposes at least a certain degree of awareness and thus a certain minimum age and level of maturity (Löhr 2009, pp. 170–72). This requirement extends not only to the Refugee Convention, but also to the CRC. When applying Article 12 CRC, the CRC Committee emphasizes that the child’s age, level of maturity, and evolving capacities of the child are of central importance in all expressions and actions of a child.17 If the necessary age and maturity are present, which is usually the case with adolescents, their political behavior may lead to individual persecution based on “political opinion.” Furthermore, it should be noted that agents of persecution may attribute a certain political opinion to children, regardless of whether they are capable of forming or developing such an opinion or not. In this case, the reason for persecution is also a “political opinion” (rightly so, Zimmermann and Herrmann 2024, para. 462).

Similarly, it is doubtful whether children, especially infants, toddlers or younger children, are already capable of developing religious beliefs for which they could be persecuted. Regarding Article 14 CRC, the CRC Committee has not specified an age for religious maturity, but assumes that this stage is usually reached before the age of legal majority.18 In this respect, children who are both old and mature enough to develop religious beliefs or participate in religious ceremonies may be persecuted on account of their religion. In addition, if children share the religion of their parents and/or are considered members of a particular religious group persecuted by the state authorities or other (non-state) agents of persecution for that reason alone, they are subject to persecution based on “religion” (rightly so, Pobjoy 2017, pp. 169–72).

Other interpretation parameters apply when it comes to persecution on the grounds of membership of a particular social group. Children in general or children of a certain age group do not constitute a specific “social group” within the meaning of Article 1A(2) of the Refugee Convention. They lack genuine common characteristics and homogeneity within the group (see Pobjoy 2017, pp. 172–85; Zimmermann and Herrmann 2024, para. 464; dissenting UNHCR 2009, p. 7). The criterion of age and maturity, which could define membership of the social group of “children,” is also inevitably subject to change over time. Furthermore, it could also be questioned whether children are ever persecuted for the sole reason of being children, since the persecutors would then unavoidably also have to persecute their own children—a fact that does not occur in practice. Rather, it seems that only certain subgroups, such as children who belong to a particular ethnic group or who have a common social background, can be the focus of persecution (Zimmermann and Herrmann 2024, para. 464). Another possible approach would be to compare the group of children with that of women, who, under certain circumstances, can constitute a “social group” within the meaning of Article 1A(2) of the Refugee Convention. Here, too, not all women are persecuted without exception in practice, although it certainly makes a difference whether the persecution is gender-specific or merely gender-related (for further details, see Zimmermann and Herrmann 2024, paras. 469–515). But even against this backdrop, one should refrain from recognizing children as a distinct social group in a blanket manner and without further qualification. A person’s age is not an immutable characteristic and, due to its transience, is less identity-defining than gender.

Nevertheless, there are certain situations of persecution that exclusively and specifically affect children. This is the case, for instance, with the illegal recruitment of children into armed forces or groups (see Rikhof 2019, pp. 390–407). Article 77(2) of Protocol I and Article 4(3)(c) of Protocol II to the 1949 Geneva Conventions as well as Article 38(2) and (3) CRC and, finally, Article 8(2)(b)(xxvi) of the Rome Statute, all prohibit the enlistment of children under the age of 15 years, as well as using them to participate directly in hostilities. Articles 2 and 3 OPAC and Article 3(a) of ILO Convention No. 182 go even further, prohibiting the direct participation in hostilities and the forced recruitment of children under the age of 18. Children who fear being recruited in violation of the prohibitions of applicable international law belong to a specific social group, namely the group of “minors at risk of forcible and unlawful recruitment” (Jones 2008, pp. 148–50). In view of the impact that such (illegal) recruitment has on the children concerned and in the light of the particularly high dangers associated with it, especially when children are ultimately used to participate actively in hostilities, any such act must be regarded as persecution within the meaning of Article 1A(2) of the Refugee Convention (Löhr 2009, pp. 193–222).19

4.4. Well-Founded Fear of Persecution

Just as all other individuals seeking refugee status, children, too, must, as a matter of principle, be exposed to a “well-founded fear of persecution” to qualify as refugees under Article 1A(2) of the Refugee Convention. It is, however, not easy to determine whether children, above all toddlers and young children, have a well-founded subjective fear of persecution. On the one hand, their parents may have deliberately not informed them of a possible risk of persecution, for example, in order not to jeopardize the possibility of fleeing the country where the persecution is taking place and to protect the children (Löhr 2009, pp. 150–62). In this case, the children are not exposed to a well-founded subjective fear at all. On the other hand, it may be that children do not feel such fear due to their age and maturity or are unable to express it fully (see UNHCR 2019, para. 218).

Against this background, it is appropriate to consider several options: Where possible, one could examine whether the parents’ subjective fears are well-founded and draw plausible conclusions therefrom for their children. It would also be conceivable to consider only the objective nature of the persecution to which the child him- or herself is exposed (see Golden 2003, p. 112; Bhabha and Crock 2007; Zimmermann and Herrmann 2024, para. 458). A third option is to assess, or try to assess, the emotional state of the children themselves. This last option would be most consistent with Article 12 CRC, as the norm establishes the right of the child to be heard in matters affecting them, without referring to an age limit. In such a case, the assessment of the fear of persecution must be carried out in an age-sensitive manner, e.g., in young(er) children through facial expressions and gestures.20 Consideration should also be given to granting protection to the parent or relative accompanying the child.21

4.5. Individualized Claim of Children for Refugee Status

A closely related question is whether children have an individualized claim for refugee status or whether they are solely dependent on the refugee status of their parents or accompanying adults. The UNHCR recommends to consider the principle of family unity in such cases. It assumes that “[i]f the head of the family meets the criteria of the definition, his [or her] dependents are normally granted refugee status according to the principle of family unity” (UNHCR 2019, para. 184). However, Article 1A(2) of the Refugee Convention does not cover this situation in its wording. Rather, the norm focuses on the individual granting of refugee status (Zimmermann and Herrmann 2024, para. 454). It is therefore not sufficient for the parents or accompanying adults to be considered refugees in order for the children to also be recognized as refugees. The children themselves must meet the criteria set out in Article 1 A(2) of the Refugee Convention.

On the other hand, where parents have been exposed to a well-founded fear of persecution, notably on account of race, religion, and nationality, it will in most cases be likely to argue that their children find themselves outside their home country for the very same reason (Zimmermann and Herrmann 2024, para. 455). Even in such situations, however, the claim of the respective child will have to be considered separately, given the possible specificities of each individual application (similarly, Bhabha and Young 1999, p. 114; but see also Goodwin-Gill and McAdam 2021, pp. 153–55). This is confirmed by the very wording of the chapeau of Article 1A of the Refugee Convention under which the term “refugee”, as understood in said provision, explicitly refers to “any person”, thus, obviously, including children (Zimmermann and Herrmann 2024, para. 455; Löhr 2009, p. 158).

This interpretation is in line with the purpose and object of the CRC, which recognizes the child as a bearer of individual rights. In this regard, the CRC Committee underlines that all asylum-seeking children, including those who are accompanied by or separated from their parents, shall enjoy access to asylum procedures and other complementary mechanisms providing international protection, irrespective of their age.22 This procedural guarantee is an individual right of the child, which does not disappear if accompanied. However, a child’s claim for refugee status is most likely to be overlooked in practice when the child is accompanied by adults (see Schmahl 2021, Art. 22 para. 6). In these circumstances, invisibility is one of the key challenges that children face in establishing their entitlement to refugee status, as they are often generally subsumed into the claim of their parents (UNHCR 2009, para. 2). However, the removal of a child without an individualized assessment of his or her eligibility for international protection not only offends Article 22(1) CRC (rightly so, Pobjoy 2019, pp. 835–36),23 but also violates the requirements of Article 1A(2) of the Refugee Convention. This does not mean, though, that in cases where an accompanied child makes an individual claim to be eligible for refugee status, his or her parents or guardians may not provide the child with advice and, if necessary, take decisions in the best interests of the child in accordance with Article 3 CRC.

Requirements in domestic law which bind the right to seek international protection on the legal age or some other age threshold before being allowed to apply for asylum are strongly criticized by the CRC Committee.24 This is especially true if, during the identification or registration procedure, circumstantial evidence shows that the child’s fear of persecution is well-founded.25 In this regard, a child should not automatically be referred to the formal asylum procedure. Rather, the child must be protected by other mechanisms relating to the protection of children, such as through measures relating to child welfare.26 Most importantly, the CRC Committee stresses that states parties should ensure that children are identified promptly in border controls and other migration-control procedures and that they should develop and put into practice a child’s best interests determination procedure aimed at identifying and applying comprehensive, secure, and sustainable solutions which should be discussed with the child in a language that he or she understands (including the help of an interpreter) and in a child-friendly as well as sensitive manner.27

4.6. Treatment of Children in Asylum Procedures

It is in this respect that the UNHCR calls on all relevant state authorities to employ special sensitivity when treating children in asylum procedures. Although such a requirement cannot be found in the Refugee Convention, it follows clearly from Article 22 CRC. The stipulations of this norm can therefore close the gap in the Refugee Convention, since, as mentioned, apart from the United States, every contracting party to the Refugee Convention has also ratified the CRC. This finding results in various specific obligations for states parties (for more detail as to the following considerations, see Schmahl 2021, Art. 22 paras. 7–30):

4.6.1. Child-Friendly Asylum Procedures

Article 22(1) CRC obliges the states parties to ensure that children seeking refugee status receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set out in the CRC. This establishes a link to the “general principles” of the Convention.28 In particular, the best interests of the child, as enshrined in Article 3 CRC, must be considered. This means that, in the proceedings of recognizing a child as a refugee, a reasonable balance must be struck between the child’s best interests and an effective asylum policy.29 Although considering the best interests of the child in immigration and asylum procedures does not guarantee a specific or even positive outcome, it ensures procedural fairness for children.

Furthermore, states parties should appoint a qualified legal representative for children, whether or not they are under parental care, as well as a trained and independent legal guardian for unaccompanied and separated children, as soon as possible upon arrival and free of charge.30 The UNHCR has issued guidelines for reviewing asylum applications from minors and strongly urges states to provide children with supervisors and professionals who speak a language the child understands (UNHCR 1994 and 1997). The CRC Committee endorses this view31 and calls for the guardianship and childcare system to have sufficient human, technical, and financial resources and to be independent.32

Most importantly, accompanied refugee children should be heard independently of their parents, as their individual circumstances require separate evaluation.33 Here, the wording of Article 22(1) CRC is not only in line with the text and objective of Article 1A(2) Refugee Convention, but is particularly insightful, as it stipulates that the child who is seeking refugee status, whether unaccompanied or accompanied, should not be automatically subsumed into their parents or guardians’ claim (Smyth 2019, p. 430). In addition, the children’s right to express their views under Article 12 CRC should be considered as an integral part of asylum proceedings.34 Information should be provided in the child’s native language in a timely and age-appropriate manner.35 Hearing rooms and interviews in the asylum procedure should be adapted to the needs of children (Smyth 2019, p. 435). The child’s views must be given serious and due weight (Pobjoy 2019, pp. 841–42; Smyth 2019, p. 434). In this regard, the competent authorities should take into account that children typically describe their experiences differently than adults do (UNHCR 2009, para. 72). Therefore, throughout the entire refugee status determination process, children should be afforded a generous presumption of trust in cases of doubt (Pobjoy 2019, p. 831).

4.6.2. Child-Sensitive Age Assessment of Refugee Children

If young people apply for refugee status without identification documents or other suitable evidence, an age assessment procedure must be initiated. However, according to the CRC Committee, this procedure should not involve radiological examinations, as they are considered harmful to health and unreliable.36 Instead, age should be determined through a comprehensive and multidisciplinary assessment of the child’s physical and mental development conducted by pediatricians or equivalent professionals. These assessments should be carried out promptly, in a manner that is child-friendly, gender-sensitive, and culturally appropriate.37 If uncertainties persist, the individual concerned should be treated as a minor for the purposes of the CRC.38

4.6.3. Special Protective Measures for Unaccompanied Refugee Children

The high vulnerability of unaccompanied minors in refugee situations is virtually undisputed. The CRC Committee highlights this fact in several instances.39 This does not mean, though, that accompanied children or adult refugees are not in need of protection. Neither the Refugee Convention nor the CRC establishes an ageist hierarchy among vulnerable groups, but rather establishes differentiations that appear appropriate, objective, and reasonable due to the differences in life situations and levels of maturity.40 According to the CRC Committee, unaccompanied minors are those children below the age of 18 years who are not cared for by an adult who is responsible for their care by law or custom.41 Children shall, therefore, also be considered as unaccompanied if they are accompanied by adult family members who are not legally responsible for them.42

Due to the vulnerability of unaccompanied children seeking refugee status, states parties must take special measures as required by Article 22(1) CRC. Firstly, these measures include the obligation to establish a well-functioning and child-sensitive asylum system, and, where necessary, to provide administrative opportunities to effectively implement these laws with the support of the UNHCR.43 Secondly, procedural precautions must be provided throughout the refugee status determination process;44 these include representation of the child by a qualified legal counsel free of charge, who is familiar with the child’s background and appropriately trained.45 Thirdly, applications for refugee status from unaccompanied minors should be prioritized over other applications. Finally, fourthly, before making a final decision, the competent authority should discuss it in person with the child, in the presence of legal counsel, and with the assistance of a suitable interpreter where appropriate.46 While the child’s views are not decisive, they are an essential part of the procedure for giving due consideration to the child’s best interests.

Furthermore, a long-term solution must be found for the placement of unaccompanied minor refugees. Crucially, this involves tracing of family members for family reunification in accordance with Article 10 CRC, a process that should continue throughout the asylum procedure.47 If the parents of an unaccompanied minor cannot be located, the child is entitled under Article 22(2) CRC to the same protection as any other child deprived of their family environment. In this regard, Article 22(2) CRC refers to Article 20 CRC, according to which children who are cared for temporarily or permanently outside their families enjoy special protection (Kirchhof 2001, p. 184). This means that unaccompanied minors should not be placed in regular asylum facilities, as these are typically not designed to be child-friendly (Cremer 2006, pp. 68–72; Smyth 2019, p. 438). Rather, they are diametrically opposed to the best interests of the child.48 In view of Articles 22 and 3 CRC, detaining children in closed refugee camps is unacceptable (Chetail 2019, p. 136).49 Instead, the contracting parties should ensure placement in a youth welfare facility or with a foster family that provides child-appropriate care.

An unaccompanied child who is ineligible for refugee status and thus subject to removal remains entitled to the protection afforded under the CRC while in the receiving state.50 If deportation would be contrary to the child’s best interests, then there is a strong presumption against removing the child (for more detail, see Pobjoy 2015, pp. 327 et seq.).51 Conversely, if determined that return is in the child’s best interests, an individual plan should be developed for his or her sustainable reintegration in the country of origin—ideally in collaboration with the child.52 In any case, safeguards must be put in place to ensure that the child receives appropriate care and can enjoy their rights even after returning.53

4.7. Access to Education and Healthcare

The CRC Committee also regularly stresses that states parties must adopt a comprehensive legislative framework to ensure refugee children and children seeking refugee status enjoy the rights guaranteed in the CRC generally.54 This includes the right to education, as enshrined in Articles 28 and 29 CRC, which have their counterpart in Article 22 of the Refugee Convention. Although some provisions of the Refugee Convention primarily apply to recognized refugees, Article 22(1) of the Refugee Convention requires that refugees be provided “the same treatment as is accorded nationals with respect to elementary education”. Given its content and purpose, Article 22(1) of the Refugee Convention is of outstanding relevance for refugee children, even if they might not as such qualify as refugees within the meaning of Article 1A of the Refugee Convention. In this regard, Recommendation B, which extends the rights granted to a refugee to members of his or her family, plays an important role. Given the status of this declaration as an agreed instrument within the meaning of Article 31(2)(b) VCLT, notwithstanding its otherwise non-binding nature, it is safe to assume that the guarantees in Article 22 of the Refugee Convention also apply to children of refugees, regardless of whether they are recognized as such (Zimmermann and Thorburn Stern 2024, para. 34). As already mentioned, denying children the right to education over an extended period—for example, in cases where the recognition procedure takes a long time—could have lifelong negative consequences. Precisely in this light, the CRC Committee has repeatedly called on states parties to provide full access to education and language programs not only to recognized refugee children but also to children seeking refugee status, when interpreting Article 28 CRC, read in conjunction with Article 22 CRC.55

In addition, states parties should ensure that children seeking refugee status have the same full access to healthcare as recognized refugee children, in accordance with Article 24 CRC.56 This may include rehabilitation services when children have been victims of any form of exploitation, abuse or armed conflict (Schmahl 2021, Art. 22 para. 12).57 These measures must be implemented regardless of the availability of personal or financial resources. When resources are limited, states must accept offers of assistance by international agencies, such as UNHCR, the United Nations Children’s Fund (UNICEF), and the World Health Organization (WHO).58 With these child-specific demands, the CRC Committee goes significantly beyond the basic guarantees of the Refugee Convention.

4.8. Prohibition of Refoulement

Finally, the principle of non-refoulement stipulated in Article 33 of the Refugee Convention, according to which a refugee may not be returned to a state where his or her life or physical integrity is seriously threatened, must always be observed. The CRC Committee also stresses that states parties should comply with the non-refoulement obligations deriving from international human rights law, such as Article 3 of the Convention against Torture (CAT).59 The principle of non-refoulement prohibits states from removing individuals from their jurisdiction, if they are at serious risk of irreparable harm upon return, including persecution, torture, or other gross human rights violations. Against this background, the CRC Committee regularly points out that states shall not reject a child at a border or return him or her to a country where there are substantial grounds to believe that the child is at real risk of irreparable harm, such as, but by no means limited to, those contemplated under Articles 6 and 37 CRC.60 As underage recruitment and participation in hostilities entails a high risk of irreparable harm involving fundamental human rights, including the rights to life, to survival, and development and the prohibition of torture, state obligations deriving from Article 38 CRC and OPAC entail extraterritorial effects. Therefore, states parties shall refrain from returning a child in any manner whatsoever to the borders of a state where there is a real risk of underage recruitment or of direct or indirect participation in hostilities, either as a combatant or through carrying out other military or paramilitary duties.61 Moreover, in the opinion of the CRC Committee, such non-refoulement obligations apply irrespective of whether serious violations of those rights originate from state or non-state actors or whether such violations are directly intended or are the indirect consequence of states parties’ action or inaction.62 Overall, the principle of non-refoulement is regarded to be a fundamental principle of the human rights of children in the context of migration and flight. It forms part of international customary law (Vandenhole et al. 2019, para. 22.10) and might even belong to the peremptory norms of international law. This is also evidenced by the fact that both the (non-binding) Bangkok Principles on the Status and Treatment of Refugees and the Cartagena Declaration on Refugees incorporate several basic provisions of the Refugee Convention, especially the prohibition of refoulement (Bangkok Principles, Article III, and Cartagena Declaration, para. 5). Due to its paramount importance in customary international law, the principle of non-refoulement influences the interpretation of Article 22 CRC, as the CRC Committee has repeatedly emphasized.63

5. Conclusions

In summary, while the 1951 Refugee Convention and its 1967 Protocol contain important guarantees for adult refugees, they barely address the specific needs of refugee children. Article 22 CRC is particularly valuable in this regard, as it focuses on the rights and protection needs of refugee children. Although this provision does not regulate all relevant aspects and must itself be interpreted in the light of Article 1A(2) of the Refugee Convention, especially to define the concept of a “refugee child”, Article 22 CRC can strengthen the Refugee Convention’s scant commitment to children’s rights. This is particularly evident in the CRC’s requirements for the treatment of children in asylum procedures, which is not addressed in the Refugee Convention at all.

It is thus not astonishing that, following the adoption of the CRC in 1989, the UNHCR began acknowledging and promoting it as a suitable framework for conceptualizing the special protection needs of refugee children. Regarding the responsibility of states parties for all refugee children in their territories, the UNHCR published a policy report on refugee children in 1993 (UNHCR 1993, para. 6) and issued practical guidelines for the protection of refugee children in the following year (UNHCR 1994). In 1997, the UNHCR also published guidelines on policies and procedures for handling asylum-seeking unaccompanied minors (UNHCR 1997) and in 2009, it enacted guidelines on asylum applications of children (UNHCR 2009). Further UNHCR guidelines and reports, largely based on the CRC, such as the “Technical Guidance on Child-Friendly Procedures” (2021), followed in subsequent years. All these documents build upon the CRC and the findings and opinions of the CRC Committee, since these provide an important normative and legal-political framework for the protection of refugee children and recognize children as active subjects of rights without denying them the necessary protection (for a fuller account, see Pobjoy 2019, pp. 823–24). Although the UNHCR’s guidelines and reports, like the opinions and statements of the CRC Committee, are formally not legally binding, they demonstrate the positive and beneficial interplay between the Refugee Convention and the CRC and strive for a human rights standard that addresses the needs of refugee children.

Against this backdrop, it is dramatic that international institutions are now under immense pressure due to insufficient funding. These problems are exacerbated by a severe, UN-wide budget crisis caused by delayed or missing payments from key member states (UN News 2025). This liquidity crisis is disproportionately affecting the UNHCR, the International Organization for Migration (IOM) and the UN human rights treaty-based system, which is heavily dependent on the regular UN budget. Drastic funding cuts have already led to the cancelation of meetings, shortened committee sessions, and hiring freezes. This lack of resources prevents also the CRC Committee from clearing its backlog and from providing timely redress against violations of the rights of refugee children through the individual complaint procedure. Therefore, it is all the more positive, that despite the ongoing liquidity crisis at the United Nations, which led to the cancelation of the preliminary meeting in May as well as the meetings in September 2025, the CRC Committee made the extraordinary decision to hold its 101st preliminary meeting online to ensure that the review process could continue without interruption.64 This voluntary commitment of the CRC Committee members cannot be praised highly enough.