Durable solution: repatriation and return

Introduction

The EU asylum law provides for a mechanism, usually referred to as the Dublin procedure, to determine which EU member state is responsible for examining an application for international protection. The Dublin III Regulation (Regulation (EU) No. 604/2013), applies to 32 countries which include the 28 EU member states, Iceland, Liechtenstein, Norway and Switzerland.

Article 6 of the Regulation, which deals with children, requires that primary consideration be given to the best interests of the child. Unaccompanied children must be assisted by a representative who has the necessary qualifications and expertise to promote those best interests at each step of the Dublin procedure².

The Regulation also states that only one country can be responsible for considering the request for international protection. There are several reasons why a particular EU member state may be responsible for examining an application for international protection, e.g. the presence of a family member or relative in that country, the person having been issued a visa or a residence permit there, or whether the person had travelled through another Dublin III country by regular or irregular means.

The relevance of having knowledge of the Regulation is the guardian’s pedagogic tasks that follow from it. The best interest of the child is a decisive criterion. So the point to be taken into consideration is whether the child’s development will be positively stimulated by a transfer to another EU member state where a family member or relative is residing. The guardian must therefore cooperate transnationally in order to gain insights into the situation of the family member or relative in the other EU member state.

Information

For many reasons, unaccompanied children can end up in one EU member state, while their family ends up in another. The Dublin III Regulation offers the possibility to reunite the child with their family in these situations. Under Dublin III, the child can be reunited with parents, as well as brothers or sisters, uncles and aunts, grandparents or any adult that may have taken care of the child in the country of origin. The priority is to place unaccompanied children in the same member state as a family member or relative, provided it is in the best interest of the child.

First of all, the Regulation gives the responsibility to proceed with the request for international protection to the member state where unaccompanied children have a ‘family member’ (defined as a parent, spouse or child) or a ‘sibling’ who is ‘legally present’ in the country. This state has an obligation to take the responsibility for examining an application of an unaccompanied child. Secondly, it gives the responsibility to proceed with the asylum application to the member state in which the unaccompanied child has a ‘relative’ (defined as an adult aunt, uncle or grandparent) who is ‘legally present’ there. In this case, there are further conditions: there must be a separate investigation to check that the relative is able to take care of the child, and the allocation of responsibility must be in the best interests of the child³.

Once it is clear that the asylum seeker is an unaccompanied child who has family or relatives as defined by the EU rules in a particular member state, the child must be transferred to that member state to apply for international protection there. The unaccompanied child should provide the state authorities with all the information they have about the presence of any family members or relatives in any Dublin country.

Means of proof in the case of the presence of a family member or relative (father, mother, child, sibling, aunt, uncle, grandparent, adult responsible for a child, guardian) of an unaccompanied child are:

• residence permits issued to the family member;
• evidence that the person is related, if available;
• failing this, and if necessary, a DNA or blood test;
• verifiable information from the applicant;
• statements by the family members concerned;
• reports/confirmation of the information by an international organisation (UNHCR)⁴.

 

It is important that the unaccompanied child tells the state authorities as soon as possible if they think that their mother, father, brother or sister, aunt, uncle, grandmother or grandfather could be present in one of the Dublin countries and, if so, whether or not they want to live with them.

Best interest of the child

The best interests of children should be respected. In the absence of a family member or relative, an unaccompanied child – unlike any other asylum seeker – in effect has a choice of which member state to apply to. The CJEU (Court of Justice of the EU) has confirmed (in the case of MA) that this is the case even after the child has already applied in another member state⁵.

Principle of non-transfer of children

Moving unaccompanied children from one country to another has a negative impact on their well-being. Transfer or threat of transfer may lead to their disappearance. The country responsible for examining the asylum request of a child should therefore be the one where the most recent application has been made, in order to avoid unnecessary movement, except when the transfer aims to reunite families or is in the best interest of the child. Children should not be separated from family members, including brothers or sisters who are already in the EU. Member states should have the obligation to trace family members residing in the EU.

Length of the procedure

If the member state where an asylum application is lodged considers another country to be responsible for examining the application, it requests that country to accept responsibility within three months of the date of submission of the asylum application. The state to which the request is sent must answer within two months after receipt of the request. Not replying within the required timeframe means that this state has accepted responsibility for the application. The transfer will take place within six months of the moment at which the other country accepted responsibility for the asylum application.

Finland

The Finnish Immigration Service provides information on the Dublin procedure (in Finnish). Information on the guardian’s role in the procedure can be found in the Handbook for Guardians published by the Finnish Immigration Service (in Finnish).

Greece

Information on Dublin procedures provided by the Greek Asylum Service (in Greek) can be found here. Information on METAdrasi’s Guardianship Network for Unaccompanied Minors and the role of the Members of the Guardianship Network (in English) can be found here .

Training and tools

Checklist: Additional possible actions by the guardian or; in his or her absence; by the legal representative in relation to Dublin procedures:

• Review the relevant documents contained in the child’s asylum file;
• Check to ensure that the asylum authorities are respecting all Dublin Regulation safeguards to protect unaccompanied children;
• Advocate for decisions guided by considerations relating to family unity; the child’s well-being and social development and the child’s safety as well as by the views of the child;
• Ensure that the child is appropriately informed and facilitate child participation;
• Facilitate contacts with family members; when requested by the child;
• Advocate against deprivation of liberty and request reception arrangements which are safe and take into account the specific needs of the child;
• Advocate for transfers to other EU Member States to be carried out in a child-friendly manner and accompany the child when circumstances require or advocate for a transfer taking place only when this is in the best interests of the child⁶.

 

Good practices

The project ‘Dublin Support for Guardians’ was implemented by Nidos in 2013-2014 in cooperation with Caritas International and France Terre d’Asile with financial support from the European Refugee Fund. The aim was to offer guidance to guardians in the EU with respect to the Dublin III Regulation. The final report from this project can be found here. As part of the project, Nidos set up a helpdesk to assist guardians with Dublin cases of unaccompanied children. This assistance – based on years of experience – concerns several elements of reunification under Dublin:

• Making the best interests of the child concrete;
• Aid with gaining insight into the factors that are important in a reunification process;
• Providing contact details;
• Information about the process in any EU country;
• Positioning of the guardian in the Dublin legal procedures.

Information

Return of the child to the country of origin should in principle be arranged only if it is in the best interests of the child. It must be in accordance with the principle of non-refoulement, which prohibits a return to torture, persecution or other serious harm⁷.

Return is a big issue for most unaccompanied children. They fear their safety or reprisals because they left. They are also ashamed of not having been able to help their family or are afraid of rejection by their family for not succeeding in Europe.

Children who return may not be welcomed back into the family if they come back empty-handed. Families have often made great financial sacrifices to enable the journey and returning without any money may give the family a serious financial problem. Moreover, returning empty-handed from Europe is not considered very credible in the eyes of the local community in the country of origin. An unaccompanied child who has returned may be considered a failure and no longer welcome in the community, making the opportunities for housing and income difficult.

Guiding return can reduce many of these problems. Important are:

• good up-to-date information on safety in the country of origin;
• the experiences of those who have already returned;
• informing the family of the reason of the compulsory return, in order to ‘apologise’ for the child;
• a return plan aiming at not returning empty-handed (for example, by including education focused on return) and in consultation with the family⁸.

 

Guidance on gaining country of origin information can be found in this toolkit under Your knowledge and skills‘.

Greece

Assisted Voluntary Return and Reintegration Programmes (AVRR) address third-country nationals who can’t or don’t want to stay in Greece. Special care is provided to vulnerable migrants, such as victims of trafficking, unaccompanied children, single-parent families and individuals with medical needs. Information on the Assisted Voluntary Return and Reintegration Programmes (AVRR) in Greece can be found here (in English).

Finland

The project Alone in Finland (Yksin Suomessa) has produced a guidebook for guardians which has some information about return to a country of origin. You can find the guidebook here (in Finnish).

Training and tools

Tool: monitoring after return

As part of the Monitoring Returned Children – Kosovo and Albania (MRM) project, a monitoring tool has been developed based on Groningen University’s BIC-Model and the Strengths and Difficulties Questionnaire (SDQ). The results of the project showed that children who returned voluntarily were in the best situation and were also in good condition mentally, with those who were forcibly returned being worst off. MRM shows that it is possible to monitor the well-being of children upon return to improve policies and practical assistance in a methodological and structured way, against limited costs. The model is applicable in any country of origin, however the baseline (interpretation of the 14 development conditions in the local context) has to be developed separately for each country of origin. More cases improve the instrument in general as well as the country-specific baseline. MRM does not require fixed structures for implementation and is relatively easy to implement. More information can be found here.

Good practices

The Netherlands: return policy at Nidos

Return policy at Nidos, the Dutch guardianship institution for unaccompanied children, is based on the vision that working on the sustainable return of a child requires working on double commitment: the commitment of the child and the commitment of their family. This commitment to return can be achieved if a sustainable plan for a safe return is prepared in cooperation with both the child and the family. The plan should offer an independent existence, based on correct and credible information, monitored by international and local organisations, together with case management by Nidos and the commitment of the child and their family.

Double commitment can be achieved through:

• good timing;
• involvement of the family in the situation of the child from the start of the counselling, and activation of the family in respect of problems and plans for the future;
• determining, together with the child, at which moment the possibilities for return will be looked into, and by making a return plan.

A sustainable return plan:

• offers a safe stay for the child;
• offers the prospect of an independent existence for the child through education or work;
• offers development opportunities for the child;
• is prepared by, or with the consent and support of, the family;
• offers family based care, preferably within the family, but otherwise in other forms;
• is supported by local organisations.

Assuring a sustainable return means:

• the return is monitored by local and international organisations;
• the return plan and the first period of return are supervised to enable that, if necessary, the plan can be adjusted with the help of local organisations and/or the family⁹.

Denmark: return counselling

The Danish Refugee Council offers counselling and information about possible voluntary return for rejected asylum seekers and for unaccompanied minor children who have received a final decision from the Danish Immigration authorities. They offer impartial counselling and explain about the asylum procedure and the legal framework in Denmark and in Europe. They explain and talk to the unaccompanied minors about their obligations in the difficult situation that they are in as well as the possibilities of support through reintegration programs in their home countries. The counselling is communicated in a child friendly way and thereby gives each child the best options for making informed decisions.
The Danish refugee council are always in close contact and cooperation with the legal guardian and the legal guardian often participate in the meetings with The Danish Refugee Council. The counselling process is always considered carefully with the best interest of the child in focus and depending on each child’s social and emotional development and the existing trust and relationship between the unaccompanied minor and the legal guardian.
The process of acceptance of the situation is often difficult for the unaccompanied minor with many thoughts and considerations about the future. It can be helpful for the child and the legal guardian to involve with an impartial part and counselling that can give objective perspectives on different matters and make a difference in guiding the child through the process and support them in making the necessary decisions.