1. Background and Context
The United Nations Convention on the Rights of the Child
) is the first human rights treaty that has considered a series of unique human rights specifically for children. The CRC
has recognized this important phase of life as being a period of accelerated growth and development as well as a time of great vulnerability. Therefore, it has made provisions to promote such development (through, for example, provision and participation rights, such as the right to education and freedom of expression) and to prevent harms to which children may be vulnerable (through protection rights) [1
]. The CRC
is the most highly ratified human rights treaty in history, with ratification from all member States of the United Nations (UN), except the United States of America (United States) [2
]. Through ratification, countries become States Parties (SPs) to the CRC
and have the obligation to (a) harmonize their domestic laws and policies with the CRC
so that internal systems do not contradict any provision, (b) implement all rights articulated under the CRC
for children within their jurisdiction, and (c) monitor and report the process of implementation of the CRC
to a Geneva-based committee known as the United Nations Committee on the Rights of the Child (the Committee hereafter) [1
This year, the global community is celebrating the 30th anniversary of the CRC. Three decades have passed since its adoption by the General Assembly in 1989, and yet, the global community continues to face huge challenges in moving past lip service for children and truly protect their many rights as articulated under the CRC. While the unprecedented ratification of this treaty, by all UN Member States but one, speaks strongly about the world’s unanimity for children’s rights, the global community, more often than not, falls short in fulfilling the provisions under the CRC. Violations of children’s rights have grave ramifications, particularly when they happen in a systemic manner and on a massive scale. Such is the case in relation to the rights of refugee and asylum-seeking children.
Under Article 22 of the CRC
, a child or young person who leaves their country of origin to escape war, persecution, or natural disaster, has the right to appropriate protection and provisions, such as health, education, and housing. The rights under the CRC
govern all children regardless of where in the world they are located; thus, refugee and asylum-seeking children do not lose any of their rights simply because they have moved from one country to another [1
]. However, in reality, this is not the case and many of these children, depending on where in the world they move to, are denied many of their rights. Often, the host States, who have a clear set of obligations under the CRC
, fail to fulfill their responsibilities for refugee and asylum-seeking children and by doing so, subject children to a discriminatory treatment. Such discrimination can not only adversely impact children’s health and development, but also violate their human rights under the CRC
In this manuscript, we will provide an overview of the ramifications of being displaced for children’s health and development and present a critical examination of the rights and provisions under this article. We then outline some international examples of variations in compliance with Article 22 among the host countries, highlighting SPs’ strengths and shortcomings. The manuscript closes with concluding remarks and recommendations for improving the monitoring, reporting, and accountability mechanisms to support refugee and asylum-seeking children. Throughout this manuscript, the term “these children” will refer to children who are “…seeking refugee status or who [are] considered [refugees] in accordance with applicable international or domestic law and procedures, whether unaccompanied or accompanied by [their] parents” under Article 22 of the CRC
, unless a special sub-category of these children, such as unaccompanied children, are the topic of discussion, in which case they will be identified accordingly [1
3. Rights of Refugee and Asylum-Seeking Children under the CRC
Article 22 of the CRC
obligates all SPs to “… take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties” (p.6) [1
The preparation of Article 22, during the course of CRC
drafting, took place at a time when international law first started to differentiate refugee children from adult refugees [41
]. Therefore, the provision under this article captures the broad international consensus that (i) refugee children are owed appropriate protection and international assistance, (ii) all of their rights under the CRC
as well as other international human rights treaties and humanitarian law must be upheld, (iii) SPs must cooperate with the UN and related agencies in order to protect and assist such children, and (iv) family reunification is a priority obligation of governments serving the best interests of children, having particular regard for unaccompanied and separated children.
3.1. The General Principles of the CRC
The principle of non-discrimination (Article 2) and its violations may often be the factor forcing children and their parents to leave their homes in search for safety. Discrimination can happen on a variety of bases, such as ethnicity, religious affiliation, or sexual orientation. Additionally, the mere designation of these children as refugees and asylum-seeking children creates a possible disadvantage and calls for the protection of Article 2 [18
]. Within their new home, when these children also belong to groups like minorities, LBGTQ2, or child soldiers, they become further vulnerable. SPs must take positive measures to safeguard de facto equality for children entering their jurisdiction, as well as those children returned to their country of origin [37
The principle of the best interests of the child (Article 3) should always remain the overarching consideration in implementation of child refugee claims under Article 22 [42
]. This principle ought to be respected during all stages of the displacement cycle and decisions at any of these stages, must be appropriately documented through a formal and thorough best interest determination (BID) for each child [18
The principle of the child’s right to maximum survival and development (Article 6) and violations to this right are also, more often than not, a root causes of migration [42
]. When children leave their country of origin, the protection of child rights becomes even weaker when the journeys become life threatening and high risk [41
]. The SPs are obligated to take special measures to protect children by any means, for instance, through immigration policies facilitating and regulating mobility rights and not repressive detention and deportation practices, in order to protect Article 6 rights [37
]. The child’s right to optimal development also must inform Article 22 rights in relation to the immigration policies on the deportation or detention of a child’s parent and/or guardian [37
Lastly, under the principle of respect for the views of the child (Article 12), SPs must ensure child participation in immigration matters affecting both children and their parents. The child’s best interests will play a role in both instances and children often have “their own migration projects and migration-driving factors” (pp. 9–10) [37
]. Children should not be perceived as mere dependents of adult refugees and asylum-seekers; their right under Article 12 must be upheld, ensuring that their views can be expressed freely and given due consideration in relation to their age and maturity. The Committee in its General Comment (GC) No. 22 (the joint GC with the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW)) strongly reinforces these as States’ Obligations [37
The relevance of these four principles to Article 22 becomes clearer when the article is unpacked into its main attributes.
3.2. The Main Attributes of Article 22
A number of attributes were identified for each substantive right of the child under the CRC
]. These attributes were determined through an exhaustive and critical appraisal of the legal standards within the major guiding documents of the CRC
(these documents include, but are not limited to, relevant General Comments in the CRC and/or other human rights treaties, relevant articles and provisions under the other human rights instruments, the two International Covenants on Civil and Political Rights
and on Economic, Social and Cultural Rights
, relevant sections of Travaux Preparatoires, relevant CRC Concluding Observations, and the UNICEF Implementation Handbook) [47
]. The attributes were identified for each CRC
right in order to make its normative content concrete and to assist with the task of identifying the relevant indicators to monitor that right. In general, through this thorough analysis of relevant documents, the attributes should be able to present the essence and standards of its corresponding right [48
]. Four attributes have been identified for Article 22 of the CRC
, and below is a full discussion of these attributes as a result of the comprehensive analysis and appraisal.
3.2.1. Appropriate Protection and Humanitarian Assistance
Under this article, refugee and asylum-seeking children are neither granted a special status nor any lesser status than children of the host country. They are to be treated as children first and foremost and not as migrants per se, and national immigration policy cannot undermine their rights to education, health, protection, etc., under the CRC
]. The criterion of humanitarian assistance strengthens the notion of “appropriate protection”; for example, these children may require therapy to assist with their recovery from traumatic journeys and successful integration into a new host culture [49
]. Humanitarian assistance should avoid discriminatory consequences such as differential treatment between categories of entrants in family reunification cases [51
], prohibit detention of children and possibly their parents for immigration purposes [18
], help defend the principle of non-deportation of children [42
], and reinforce the child’s right to preserve family life [18
3.2.2. Preservation of Rights
As a general rule, articulated under Article 2, all CRC
rights apply to all children in every situation, regardless of their background. This general rule governs Article 22 as well, where refugee and asylum-seeking children are entitled to the exact same rights as any other child [1
]. Article 22 refrains from reiterating all child rights one by one and rather ensures that refugee and asylum-seeking children preserve both their CRC
rights and uphold the provisions and protection of other international human rights or humanitarian instruments binding on the relevant SP. Such documents provide much more extensive guidelines for SPs as to how these children are to be protected and describes, in further detail, each right and responsibility. For example, the Inter-Agency Guiding Principles on Unaccompanied and Separated Children
are especially helpful in clarifying priority focus areas for intervening effectively with this group of particularly vulnerable children, although they should not be interpreted as minimum standards or used to read down any of the rights of unaccompanied minors under the CRC
3.2.3. Duty to Protect and Assist through International Cooperation
While governments are the primary duty bearers, all parts of society can play a part in supporting the implementation of children’s Article 22 rights by coming forward. For instance, provision of the right information at the right time can be critical in tracing family members and family reunification. The obligation to protect also contains a clear instruction for all duty bearers to provide children with appropriate due process—processes that do not infringe their rights to be heard and to participate in decision-making that impacts them. Such processes may require providing children with interpreters, a free legal representative, and other means in order to facilitate their meaningful participation. All the processes must be conducted in a child-friendly manner [41
]. All professionals involved must be trained in child rights and be familiar with work in culturally sensitive multidisciplinary teams, including psychologists, social workers, and trauma-informed care providers, to name a few [42
3.2.4. Best Interests and Family Reunification Principles
Two basic principles should guide every activity related to the refugee and asylum-seeking children: the principle of the best interests of the child and the principle of family unity [41
]. After extensive field-testing, UNHCR adopted, in May 2008, its Guidelines on Determining the Best Interests of the Child
As for family reunification, it should be based on a robust assessment that upholds the child’s best interest as the primary consideration. Family reunification should not be delayed because of a BID procedure; however, it also cannot trump the child’s best interests and would minimally require a sustainable reintegration plan avoiding any harm to the child in the country of reunification (the non-refoulement principle) and insisting upon the child’s opportunity to participate in the process [18
]. BID procedure requires a holistic child rights-based approach that considers human and financial resources, training in children’s rights and inter-institutional coordination, drawing upon the cooperation and evidence available from countries of origin, transit, and destination [43
This paper presents just a glimpse into the current global climate for refugee and asylum-seeking children. One area of these children’s lives that is increasingly and rightfully gaining attention is ensuring that children are receiving quality and equitable opportunities for education. There is also more support and acknowledgement from the global community expressing the urgency and commitment to protect child rights and improve the overall conditions of these children, as indicated, for example, by the Global Compact on Refugees
and the New York Declaration for Refugees and Migrants
]. However, it is time to move past expressing the desire to support these individuals and rather work towards implementing the necessary structural and procedural commitments to ensure rights are being preserved.
There is still much to learn about safeguarding migration channels and ensuring that risks are mitigated as children move across borders. Many of the detrimental ramifications on health and development, such as trauma, being separated from loved ones, and exploitation, are exacerbated by the dangerous journeys to safety. At the landing point, globally, there is a need for more child-friendly accommodations and services, especially for children waiting for claims to be processed. During this period of uncertainty and fear, many children are housed with parents in adult facilities and are prevented from claiming other CRC
rights, such as education, health, and play. In particular, during these periods, unaccompanied refugee and asylum-seeking children need access to all the information that concerns them and must be provided appropriate legal representation, although we see that this is often not the case in areas such as Central America [5
]. As discussed above, there are many existing barriers preventing expedited family reunification processes, further prolonging periods of separation and affecting all domains of health.
At a national level, there needs to be better accountability, monitoring, and reporting mechanisms in place to ensure that SPs are upholding their CRC and other international commitments.
Collecting timely and accurate data regarding the provision of rights for refugee and asylum-seeking children is necessary to ensure that SPs are accountable for maintaining both their national and international obligations under the CRC
. The SPs, in accordance with their obligations under the CRC
in general (and Article 22 in particular) must implement structural commitments in the form of legislation and policies in support of the refugee and asylum-seeking children they host. They must make every effort to ensure that processes align with the general principles of promoting the rights of these children to life and maximum development (Article 6) in a non-discriminatory manner (Article 2). The children’s best interest (Article 3) must remain at the center of their decisions while they provide children with ample opportunities to participate, voice their opinions, and to be heard during these decision-making processes (Article 12) [1
]. Last but not least, the SPs must collect and periodically report disaggregated data on all the rights of refugee and asylum-seeking children.
Widespread public awareness raising is required to overcome tribulations such as xenophobia and discrimination demonstrated from the citizens which add to the difficulties faced by these children. These perceptions and behaviours of the citizens can often influence the predicament of newcomers adversely, not just by adding to the stressors in the environment but also by influencing State immigration laws and protocols in a negative manner. Consequently, added means for refusing refugees may be implemented, such as building walls, detaining individuals, closing borders, stopping boats from docking in their country, and returning individuals to their unsafe country of origin by force [5
Pediatricians, educators, social workers, and professionals working for and/or with refugee and asylum-seeking children are best equipped to advocate for their rights. Action in this domain is two-fold: to ensure that services are conducted in a culturally safe and sensitive manner, and to ensure that the voices of these vulnerable populations are heard. By careful monitoring, reporting, and advocating for the needs of children on the move, care providers can provide a stronger voice to this often-silenced population. By partaking in discussions, joining advocacy groups, and creating safe spaces for newly resettled families, care providers have the ability to influence decision-makers and the general population.
All in all, while some countries have not yet had to deal with complex migration issues to the same degree that others have, with climate change exacerbation, increased civil unrest, and the proliferation of channels for illegal transit, the planet will be experiencing a further increase in the phenomenon of children on the move across its four corners. All countries and indeed, human societies, must come together to reduce the burden and hardship of refugee and asylum-seeking children who travel long distances, experience horrifying journeys, and all too often face discouraging outcomes prior to, during, and even after their resettlement. Working with the provisions of Article 22 while maintaining the principles the CRC can serve as a guide in this enormous and remarkably important task.