Children’s Rights, Migration, and Family Unity

The Principle of Family Unity and International Children’s Rights Standards within the Context of Migration

Regional Seminar on Migration and Family, RCMApril 2010

The Family within the International Legal Framework

MigrationChanges

in the Family

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The family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.

Preamble to the Convention on the Rights of the Child

The Family within the International Legal Framework

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The Family within the International Legal Framework

Boys and girls should live in an environment where they feel supported, protected, cared for, and which promotes their full potential.

Children who are deprived of their family environment are in a situation of lack of protection.

The State should ensure that children live with their families, that families are supported in their role of caretakers and that, if children are separated from their families, they are reunited with them.

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The Principle of Family Unity within the Context of Migration: Several Scenarios

Boys and girls remain in their community of

origin and one or both parents have migrated

to another country.

Boys and girls are applicants for refugee

status.

Boys and girls live in the country of destination or were born in the country of destination as

children of foreign parents in an irregular migration situation.

Boys and girls are in transit – alone or

accompanied – or are in the process of

repatriation.

The obligations of States relating to the right to family life and its inclusion in migration policy can involve: Refraining from adopting decisions which involve

separation of the members of a family Implementing positive actions to promote the

reunification of children with their families

The Principle of Family Unity and the Rights of Unaccompanied Boys and Girls in Transit

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The Principle of Family Unity

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The principle of family unity applied to unaccompanied migrant boys and girls

They have the

right to have a

family, and

families have the

right to take care of them

They should have

access to services

to quickly reunite

them with their

parents or

guardians

Actions should not

separate children

from their families,

unless this is done

to protect them

• All decisions relating to unaccompanied migrant boys or girls should tend to comply with the principle of family unity, unless a judge establishes that this is not the most appropriate action in order to ensure the rights of the child.

• The Child’s Best Interest should be considered in making this decision.

The Principle of the Child’s Best Interest

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• In making decisions and implementing actions, States should:– Listen to and consider what children have to say regarding

the decisions relating to their placement and care, search for their family, and family reunification.

– Interviews and information should be in the child’s preferred language.

The Principle of Participation

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The Principle of Non-Criminalization of Irregular Migration

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Boys and girls are, first of all, subjects of rights

and secondly, migrants.

Under no circumstances may the migration

status of the child or his/her parents be a reason for discrimination.

Interaction of principles governing the actions of States regarding unaccompanied migrant boys and girls

Principle of Family

Unity

Principle of Partici-

pation

Principle of the Child’s

Best Interest

Principle of non-

criminalization due to

migration status

Un-accompanied migrant boy

or girl

• Some advances regarding bi-national agreements for the repatriation of unaccompanied boys and girls;

• The legislation has yet to consider the Child’s Best Interest as a criterion to suspend a deportation action;

• Insufficient legal mechanisms of due process to prevent the separation of families in deportation processes.

Challenges in the Latin American and Caribbean region in terms of ensuring the rights to family life,

non-separation, and family reunification of unaccompanied migrant boys and girls

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• Most of the laws in the countries in the region do not consider a judicial proceeding in cases of expulsion of migrants.

• In many countries, administrative – and not legal – authorities are the ones determining the separation of parents from their children in migration processes.

Advances and challenges in the Latin American and Caribbean region in terms of ensuring the rights to

family life, non-separation, and family reunification of unaccompanied migrant boys and girls

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• Insufficient legal mechanisms to facilitate participation of the child in migration procedures.

• Most State norms have yet to incorporate the principle of family unity or, specifically, family reunification.

Challenges in the Latin American and Caribbean region in terms of ensuring the rights to family life,

non-separation, and family reunification of unaccompanied migrant boys and girls

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• To arrange for the return of boys and girls, in order to be reunited with their parents, other family members, and loved ones in the country of origin or, if this is not possible, to be incorporated into childhood protection programs in the country of origin.

• To arrange for their stay in the country of destination, their migration regularization and, if it is in their best interest, to take actions to allow their parents to stay, gain regular migration status, or enter the country, in order to achieve family reunification. This option has not been sufficiently developed in the region.

Alternatives for States to ensure the right to family life of unaccompanied migrant children

as a lasting solution

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Thank you…

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