unaccompanied minors in slovenia: principle of the best interest of the child between theory and...

Unaccompanied minors in Slovenia:Principle of the best interest of the child

between theory and practice

Blaž Lenarčič, Zorana Medarić, Mateja Sedmak,Tjaša Žakelj University of Primorska, Science and Research Centre

Conference is organised in the scope of the “In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures (MinAs)” research project, co-funded by the PPUAM 2013 of the European Union.

International conference

CHILDREN AND YOUNG PEOPLE ON THE MOVE: TOWARDS A MORE PRECISE DEFINITION OF THEIR BEST INTERESTS

19-20 November 2015

Portorož, Slovenia

http://www.minasproject.eu/files/2014/10/5715014.jpg

Project description Project In Whose Best Interests? Exploring

unaccompanied Minors' Rights through the Lens of Migration and Asylum Processes

1st focus: inclusion of best interest of the child principle (BIC) in legislation;

2nd focus: determination of best interest of the child in practice (BID).

Methods: legislation analysis (BIC involvement); interviews with 13 experts working with UAMs (BIC and

BID) Interviews with 18 young people with experiences of

being unaccompanied minors in Slovenia (carried by PP Slovene Philanthropy)

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

UAMs in Slovenia UAMs applications for international protection in

2014

Source: Ministry of the Interior (2015)

In the period 2005-2014 the status of international protection was granted to 36 UAMs.

BIC principle in legislation determining the procedures concerning UAMs

Prior to the intention of application for international protection UAMs are treated in compliance with Aliens Act – AA.

In AA BIC is not a general rule which guides procedures concerning UAMs.

Principle is mentioned only once: in second part of 82. article:

…. The police shall issue the alien minor with a return decision where his guardian for special case, having carefully considered all circumstances, establishes that this is in the best interests of the alien minor.


BIC in International Protection Act I From the intention to apply for international protection

UAM is treated under International Protection Act – IPA.

IPA lays down the fundamental principles, procedure of granting and withdrawing of international protection, duration and content of international protection as well as the rights and obligations of applicants for international protection and persons who were recognized international protection.

International protection includes refugee status and subsidiary protection status.

IPA defines Unaccompanied minor as “a third-country national or a stateless person under 18 years of age who is in the territory of the Republic of Slovenia without both parents or previous legal / customary primary caregiver“. In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

BIC in International protection act II

IPA, article 15: UAMs are vulnerable group of migrants; law stipulates that specific situation shall be considered when accommodating vulnerable applicants.

IPA, article 16: In the procedures, where the applicant is an UAM, it is necessary to take into consideration the principle of the child’s best interest.

IPA, article 96: When working with UAM with international protection status, one shall consider the principle of the best interest of the child.


Other relevant acts Marriage and family relations act: special case

guardians and legal representatives of UAMs need to act in accordance to the provision of this act.

Article 5.a: in all activities and procedures affecting a child, parents, other persons, state authorities and bearers of public authority must act in the child’s interest.

Civil Procedure Act: Article 408 explicitly requires from the court to protect interest of the child in legal and parental lawsuits.

Mentioned two acts are general field act and do not apply only to UAMs.


Usual steps of the procedure concerning UAMs


Positive or negative

decision on status

Waiting for the decision

Submission of application

Rights of applicant

Intent to apply for IP

Asylum homeLegal

representative

Aliens centreSpecial case

guardian

Border police control

Critical points of the procedure for BID1. Procedures at the border /…/ the border procedure is also very problematic, how they are

treated at the border, what is happening there… (NGO representative 1)

Now we usually get to the border for each individual case when we are notified about it. Well, except in some cases when the police have doubts regarding their age, it sometimes happens that we do not receive notification. And I also can’t say that the police inform us about every case, I suppose they do inform us about all cases…. (Centre for Social Work representative 2)

Actually it is very hard to say what is in the child’s best interest at any specific moment. We are very satisfied that in border return procedures in most cases, I will not say they are constantly present, we have social centre workers who carry out an additional conversation with the UAM, ask them about their circumstances and in a way determine it. In a way. (Border Police Division representative)


2. Aliens centre

Living in restrained area:They do not understand that these are formal procedures, they do not understand why they are detained now: „We haven’t done anything, we just want a better life“. Now there are lots of Afghans and some of them have said: „You treat us as we would be Talibs, be we run away from them“. (Special case guardian)


/…/This guardianship is not…. It sounds nice, it is understood as a function to go there and to be with them, to be available to them for anything… It is more like a formal protection if I am going to be completely sincere. To explain them their rights… And these conversations can last up to two hours. /…/ (Special case guardian)


3. The intent to apply for international protection – Asylum home Is followed by the reception to the Asylum home where application

for the protection must be served as soon as possible:

The fact that the application has to be done in 24 hours seems inconvenient … In one of my cases, a child was brought to examination directly from Postojna. And children are tired, confused and then we interrogate them… I do not know. (Legal representative)I do not know if we as a state are efficient, if the UAM understands the procedure after it is explained to him, if he fears less than before, because I do not have this feedback. He gets there, he does not know what is happening, he is scared, does not understand the language and so it would be necessary to work on it very hard. (Centre for social work representative I)


4. Appointment of legal representative Prior to the application for the international protection. Their role is to support UAM in the procedure, within

issues of education, health and financial issues. Crucial for the formal and informal support of UAMs: „Things are going all smoothly - for me is the best I

ever had./…/Yeah, she is the first person I look to. From time when I came here, I turn to her like she was my mother. She is like a mother; you know because she is doing everything like a mother, she is really a guardian. (Interviewee 7, Ghana, 17 years old)

New system from 2014; trained legal representatives; partialy paid.


Legal representatives as crucial actors in the strive for BIC realisation

In this procedure it is absolutely in the best interest of the UAM to get an efficient legal representative. /…/ … This (BIC) is an expert judgement… this legal institute needs to be filled by the content … (Centre for Social Work representative 1)

Even when you find out what would be in the best interest of a child you can’t implement it, because the system does not allow it. I mean, there is no system. A child-friendly system that would enable child-friendly involvement in social care, health care, schooling – does not exist in Slovenia. /…/ (NGO representative 1)


5. After submission of the application The applicant shall have the right to:• Reside in the Republic of Slovenia;• Follow the procedure in a language he understands;• Obtain information;• Basic care in the case of accommodation in the Asylum

Home;• Financial assistance in the case of private accommodation;• Free legal aid in procedures until a decision becomes final;• Health care;• Schooling and education;• Work and employment;• Humanitarian assistance.


6. Waiting for the „final“ decision UAM is accompanied with numerous everyday

issues to be tackled with (accommodation, schooling, health, financial aspects, friendship, missing family).

Long decision procedures though IPA determines priority treatment of the child’s application.

7. The status is granted Insecure position even if status is granted

(especially in cases of subsidiary protection and statuses based on reason of minority of the applicant).


Individual with granted international protection status shall have the right to:• Be informed on the status, rights and obligations of persons with

international protection;• Residence in the Republic of Slovenia;• Accommodation in the accommodation capacities of the Ministry;• Financial assistance for private accommodation;• Health care;• Social care;• Schooling and education;• Employment and work;• Integration assistance.

Although rights recognised in IPA follow international directives their realisation in practice is limited due to numerous system lacks and constrains.


System lacks The overview of the situation in Slovenia shows that there is

no comprehensive and systematic approach to the protection of UAMs.

While the need to pursue their best interest as children and a particularly vulnerable group is recognised in legal documents and other guidelines, the practice shows somewhat different picture.

The determination of the best interest of UAMs to large extent still depends on personal endeavours of (many) actors involved in the processes concerning them.

Each time it (the best interest of the child) is determined by the person who is in charge, individually for each part of the procedure. (Deputy Ombudsman)

The lack of comprehensive system reflected in the views of children – they feel their (best) interests are not heard or considered:

I did not understand…what the state actually does. They do not know. They do not listen to anything we say. It seems to me that in Slovenia they do not listen to anything. /…/ I think it is different in other countries. (Interviewee 11)

Main gaps identified

Short timeframe for the international protection application submission The application for the international protection needs to be

submitted soon after the reception into the Asylum Home.

We found this very problematic because it happens right away this is few hours after the arrival into the Asylum Home. Because it is not necessary they were at the Aliens Centre before. /…/ and the submission of the application is of vital importance because it is the basis for decision making regarding the status of protection. /…./ Imagine a child who might travelled for months, who is hungry, not to mention his psychological condition, traumas and he is sent to the room with people that he does see the first time. First person is legal representative that tries to explain him he/she is on his part, than there is a legal adviser, interpreter and the official person. And they try to convince him to tell his story why he applied for the status of international protection. And I find this system totally inadequate; there is no time and place to prepare a child for such an important thing as a submission of an application. (NGO representative 1)

Lack of information and little possibility for UAMs to present their situation and views Process of applying for international protection is confusing for

UAMs; they do not receive enough information about procedures, about their rights or possibilities nor information on possible outcomes of the application to international protections status.

Before interview nobody explained me about nothing, than I gave the interview and they said, ok, now you finished. (Interviewee 15)

They do not have the opportunity and enough time to meet legal representative before the submission of the application and discuss their position and options in detail.

Consequently they cannot adequately express their views and their stories:

…You know, you are nervous, you are meeting them for the first time; you don’t know what to say. It’s hard./…/ And again, you don’t know who to trust. You don’t know who is a police officer, or who is an immigration officer. They might just introduce themselves as blablabla, you understand and they will be there. So you don’t know what’s the outcome of the interview. So it’s nervous. You are meeting them for the very first time./…/ there was translator /.../guardian, behind my back. And that’s it. (Interviewee 2)

Inappropriate interpreters Additionally, they often have inappropriate interpreters

during interviews:

Actually no, in both, first and second interview, I did not have the opportunity (to express myself). The first problem of interview – the translator, the most important thing; 85 % was the problem of interpreter. He or she could not explain the thing I needed to say. This is a problem; everything is connected or based on her/his translation. If he/she couldn’t translate nicely that would mean that my sentence have no value. (Interviewee 6)

My language is Dari, the translators was speaking Persian. Persi-Dari is a big difference. (Interviewee 15)

Inappropriate accommodation facilities UAMs are usually placed in Asylum home, which is the accommodation

facility for adults. They report about inappropriate living conditions: inappropriate and scarce amount of food, lack of appropriate clothes, information and autonomy:

Well, Asylum home was more like prison, because I did not go out, if you do go out, you have to be back at a certain time. You could not have freedom. Also, the food and everything was very bad at this place. (Interviewee 7)

Accommodation itself is somewhat inappropriate because it is inside the Asylum home. But we search for different versions outside the home to reach best interest of the child. If you ask me, according to the social aspect foster care families would provide accommodation for unaccompanied minors which could be very successful. (Asylum home representative)

The possibilities of better accommodation options, such as placement in Hall of residence for high school students where UAMs attending school are placed together with Slovenian high school students depend on individual endeavours of guardians.

Innapropriate age assessment proceduresNot all UAMs are subjected to age assessment procedures (only if doubt exists), but those who are can experience humiliating and disputable procedures:

This means a boy has to take of his clothes; the physician compares testicles with the chain of balls. When it was described to me, I found it terrible, humiliating and inadmissible! (NGO representative 1)

…who confirmed that I am 17 years old. [How was at the doctor, how did they check you?] They performed an x ray on both my hands and my knees. /…/I didn’t mind, they told me that I must go to the doctor and I went. (Interviewee 8)

Lack of intercultural competences and empathy of people involved in processes with UAMs

When asked I didn’t get the doctor in Asylum home. I said to them that I couldn’t sleep. And then social worker for minors told me ‘Oh, you are from Afghanistan, go find some drugs and take it and you will be totally normal. You are an addicted person’. … She insulted me by saying I am addicted. … She apologized then and said that she made a mistake …. (Interviewee, 6)

Length and uncertainty of procedures' outcomes The period of time for UAM to receive the (final) answer

about their status is very long and it causes uncertainty about their future.

It is also really hard when you are getting for one year documents only. OK, you wish, you are feeling for other to be better. And you are managing all your life. You are coming from the time of Asylum home, from that flashback, for one year, now you are in a good time. You are supporting, you are planning… Suddenly, your documents stop and you get negative. And it means, again problems forgetting about this one year. This is really big problem. Because I made so much plans to have a future, make a good life. But then what happened with me. (Interviewee 6)

Length and uncertainty of procedures' outcomes This period should be reduced. Instead of waiting here for

five years and don`t receive anything, it would be better to know after six months, you know what is waiting for you here and you can go back home or elsewhere. But here you are waiting. They don`t treat you as normal people. I don`t know what they think of us. This is hard. (Interviewee 4)

Length and uncertainty of procedures' outcomes “Temporary” is the keyword with which we can describe the

support of Slovenian state if UAM gets the international protection status. UAMs mainly obtain their status for a year or two, with the fact of them being under age as the key reason for the status granting.

In this context, transition to 18 is also problematic. Due to delays in procedures (even though the status of UAMs should be solved under priority!) and because recently UAMs get the status of subsidiarity on the basis of their age when turning of age they are 1) either not granted the status 2) cannot renew their status.

(Former) UAM who might be living in Slovenia for years is actually at the beginning of his/her strive for the status.

All those boys who got of age and asked for the renewal got negative answers. Meaning that there can be a case of a boy who lives in Slovenia for 4, 5 years, who is perfectly integrated if we need to mention it in through these lens and defend him. He visits school and speaks Slovene perfectly. He caused no troubles to Slovenia. After five years when he wants to stay here, Ministry declares “No, we do not want you here.” Not with these words but declares his status was obtained on the basis of him being under age but now he is of age. And now as 18 or 19 year old boy he should return to Afghanistan. This is terrible for those kids. (NGO representative 1)

Poor integration possibilities In Slovenia UAMs have limited educational and work possibilities

(despite the formal right to them) and there are mainly no integration programmes nor activities for them.

In practice there are numerous constrains regarding access to education, such as lack of intensive learning of Slovenian language or lack of systematic approach to education.

… Than I got there (in the school) … the first day I introduced myself in English, because I didn’t speak Slovenian. They didn’t oblige me to finish the course or school of Slovenian language. It was hard. Than they told me to have 300 hour of Slovenian course but it was no good. The professor was talking in Slovenian and I didn’t understand nothing.. Sometimes was missing and I was reading alone by myself …300 hours is a lot, but the system was bad. I could not learn Slovenian language ….(Interviewee 17)

Despite being an important priority, there are very limited employment opportunities for UAMs. The most available form is student work – if they have the status of students.

The right to work is obtained only after 9 months in case they haven’t received decision on their international protection status yet. In that case they get personal work permit per 3 months and if in these three months still haven’t received the decision, permit is prolonged for additional 3 months. We believe this is inhuman and unfair. If the Law stipulates that the decision should be given within 6 months, why wait for 9 months then? /…/ If they work they mainly work on the basis of student referral. For regular work they have scarce options as even if they have some specific knowledge, for instance mechanic, these are completely different as here. (NGO representative 2)

UAMs often express the desire to gain more independence through work; however work opportunities are scarce and additionally, if they do work, their state financial support is lowered.

It was a bad system. During the summer, while I was working, they lowered that 260€ I received. Rather than leaving those people who want to do something for their future, for their life. They could help, encourage you to work. But if you work, you just do not receive from Ministry, from Centre for Social work. (Interviewee, 6)

Indispensable role of guardian... „My guardian helped me with everything. She is the best I have

ever had because she helps me. If it is good or bad. Before she even plans, she has to decide with me If I supported the idea or not. … She is from this country. She knows best so I can never disagree with good things she plans with me. Things are going all smoothly – for me is the best I ever had. … She is like a mother to me, you know because she is doing everything like a mother, she is really a guardian.

…and that of Slovene Philantropy

“The Slovene Philanthropy helps me with learning. They also took me on the trip once, twice a year. Also if I have trouble of any kind I go at Slovene Philanthropy“

In conclusion UAMs have little or no control over decisions

regarding their lives. The principle of the “best interest of the child” is often

violated. Their basic human rights are violated on daily basis. Procedures are not adapted to the minors. Lack of comprehensive and systematic approach to the

protection of UAMs in Slovenia. Slovenia has no proper experiences how to cope with

the problem and no real interest to face this issue properly.

unaccompanied minors in slovenia: principle of the best interest of the child between theory and...

Documents

international protection

uams bic

subsidiary protection

unaccompanied minors

asylum procedures bic

asylum procedures uams

determination of best

inclusion of best