(Paris) – France
detains as many as 500 children who arrive in the country alone each
year in transit zones at the borders, where they are denied the
protection and due process rights afforded other unaccompanied children
on French territory, Human Rights Watch said today.
Any unaccompanied
child who arrives in France should be admitted to the country and
provided with shelter and care while their immigration claims are
decided.
Under French law, unaccompanied children – who arrive at an airport
or seaport without parents or guardians to protect them – can be held in
one of more than 50 transit zones for up to 20 days, during which time
the government claims they have not entered France.
This legal fiction
allows the French government to deny due process rights to children in
transit zones that unaccompanied children in France enjoy.
France has
not changed its practice despite a 2009 court ruling that children in
the transit zones are in fact in France.
“France is using a legal loophole to compromise children's rights,” said Alice Farmer,
children’s rights researcher at Human Rights Watch.
“Children are
physically in France, yet not in France in the eyes of French law, and
this legal trick denies them protection.”
New Human Rights Watch research updating its 2009 report, “Lost in Transit,”
demonstrates that France’s adherence to this anomalous legal regime
leaves children facing the risk that their asylum claims will not
receive appropriate consideration or that their deportation will be
improperly expedited.
To update the 2009 Human Rights Watch report,
Human Rights Watch visited the transit zones in Roissy Charles de
Gaulle and Orly airports in January and February 2014, interviewed 11
detained migrants, of whom three were unaccompanied minors, and followed
court hearings for three others. Human Rights Watch also spoke with 22
government officials from the Interior Ministry, the Border Police, and
the Office of Refugees, among others, and consulted experts from
nongovernmental organizations and academia.
Detaining a child should be a last resort, given the negative impact
of detention on children’s mental health, experts say.
Children detained
in the transit zones, including at the Roissy airport, France’s largest
transit zone, are subject to truncated due process and face an
expedited asylum test.
They are sometimes detained with unrelated adults
– in violation of international standards – making them vulnerable to
exploitation and abuse.
Unaccompanied children already “in” France are
not detained and are given full asylum hearings.
In 2009, France’s highest civil and criminal court, the Court of
Cassation, held that “a child held at the Roissy Charles de Gaulle
airport transit zone is de facto on French territory,” erasing any legal
justification for discriminating between these two groups. However,
France has yet to acknowledge this ruling by changing its policy.
The number of unaccompanied children arriving in France has fallen to
about 500 a year, from about 1,000 in 2008.
Since the first Human
Rights Watch report was published in 2009, France, has, with EU support,
constructed a children’s zone in the detention area at Roissy airport,
but it is too small to hold all detained unaccompanied children.
On at
least one occasion in 2013, more than half of the children detained were
held with adults.
When an unaccompanied child arrives at an entry point, the border
police are required to inform the public prosecutor.
The public
prosecutor must then assign a guardian – known as an ad hoc
administrator – to assist the child in the transit zones.
Yet police are
still able to pressure these children into signing paperwork before the
child meets with the ad hoc administrator to find out about their
rights and the procedures they face.
The ad hoc administrators, typically volunteers, have very limited
resources to respond to the children’s need for assistance with complex
procedures, including immigration claims and age assessment.
Particularly in more remote transit zones, such as Marseilles or Lyon,
children may not receive any assistance.
Human Rights Watch found that the government conducts age assessments
of individuals claiming to be children before an ad hoc administrator
is assigned, leaving children without assistance.
The Convention on the
Rights of the Child entitles anyone claiming to be a child to be
assigned a guardian as soon as that claim is made; consequently,
children have help navigating complex procedures such as age
determination.
France allows no appeal of an age assessment, meaning
that a child erroneously found to be an adult may be deported without
adequate procedures.
Under French law, the government subjects unaccompanied children
claiming asylum in the transit zones to expedited procedures that deny
them their full rights. In transit zones, adults and children alike must
first show that their claims are not “manifestly unfounded” before they
can have a full hearing.
The short deadlines, lack of access to
lawyers, and complexity of the procedure conducted by the French Office
for the Protection of Refugees and Stateless Persons (Office Français de
Protection des Réfugiés et Apatrides, OFPRA) leave exhausted,
travel-weary children without the capacity to prepare their claims
properly.
In keeping with France’s international law obligations, unaccompanied
children should not be subject to accelerated asylum procedures such as
“manifestly unfounded” hearings, because the process does not make
certain that the child’s best interest is the main consideration in
deciding whether they may remain in the country.
France should immediately stop detaining children in transit zones,
Human Rights Watch said.
When unaccompanied children arrive at the
border, France should admit them and then assess the child’s immigration
status and, if appropriate, the child’s age through multidisciplinary
exams.
All children making asylum claims should have direct access to a
full hearing, without a preliminary test for “manifestly unfounded”
claims.
For as long as France operates the transit zones, it should ensure
the ad hoc administrator system has adequate resources to provide
effective assistance to children.
Children should be assigned guardians
as soon as they arrive and before they are subjected to age
determination or any other procedures.
“There’s no reason why unaccompanied migrant children in the transit
zones should be subject to a different legal regime than other children
on French territory,”
Farmer said.
“They should be considered to be in
France, with full rights to seek asylum, rather than detained with a
mere skeleton of the rights they’re entitled to.”
For more Human Rights Watch reporting on France, please visit:
Background
Of the 8,883 people held in transit zones in 2012, 416 were
unaccompanied minors; 542 unaccompanied minors were detained in 2011.
An official with the French Defender of Rights, an independent
government body, told Human Rights Watch that 30 to 40 percent of the
unaccompanied minors arriving at Roissy Charles de Gaulle are sent back
to their country, and the remainder is admitted.
According to official statistics, about 90 percent of all children
held in French transit zones are held in Roissy airport in Paris, one of
Europe’s largest airports and a major entry point into Europe’s open
border zone, the Schengen area.
France has 51 smaller transit zones in
the country and its overseas territories.
Roissy’s main detention facility has a capacity of 160 people in 69
rooms.
At least six other holding cells in the airport’s terminals are
used for short-term detention.
Despite international law requirements that unaccompanied children
should not be detained for reasons of their immigration status, French
law still maintains that children who do not fulfill conditions to enter
France can be detained in transit zones.
These children may be held for
up to 20 days, in sharp contrast to unaccompanied children already in
France, who cannot be detained.
President François Hollande campaigned on the notion that
unaccompanied children would no longer be held in administrative
detention.
But children in transit zones were exempted from his promise,
as they are not considered to be “in” France.
French law requires border police to inform the public prosecutor
immediately when an unaccompanied child arrives at a border or entry
point.
The public prosecutor must appoint an ad hoc administrator – a
guardian, who assists the child during administrative and judicial
procedures.
A judge reviews the legality of the child’s detention in the
transit zones after four days, and if detention is extended, again
after eight days.
After 20 days, a child who has not been deported must
be released and granted access to French territory.
Findings
Transit zones strip children of rights
Since at least 2003, France has used transit zones as a migration
control tool allowing officials to assess whether a person detained
there fulfills the conditions to enter France and, if the government
finds they do not, to facilitate speedy removal.
Unaccompanied children
in transit zones have significantly fewer rights than those considered
to be in the country.
The system may have an especially negative effect
on children’s ability to present their claims successfully due to
fatigue, language barriers, or a failure to grasp complicated
requirements for asylum claims.
The concept of a transit zone is a legal fiction, not a physical
reality.
Although some physical elements of transit zones, such as
detention facilities and holding cells, are located at airports, the
concept has been broadly defined to follow the person wherever they go.
Effectively, it is as if the transit zone encases the person in a
bubble, and that legal status follows them even if they physically move
to hospitals and courts around France. They are de facto, but not de
jure, in France.
The French government has repeatedly contended that children held in
transit zones are subject to different laws because they have not
entered France.
Raphael Sodini, counselor on immigration to the Interior
Minister, told Human Rights Watch in February 2014 that to provide
appropriate care to children on French territory, it was “necessary to
take a different approach to those at the border.”
But there is no
justification under international human rights law for discriminating
between these two groups of children.
Children detained in transit zones may pursue limited options for
release.
The unaccompanied child is allowed to request a children’s
judge – a specialized judiciary for children’s affairs – to make a
request to enter France either as an asylum seeker, in which case the
child would be placed in care, or to be reunited with family.
If the
judge turns the child down, the child remains in detention and may be
deported at any point.
Fabrice Leggeri, head of the Interior Ministry department charged
with irregular migration told Human Rights Watch in February 2014 that
people held in transit zones are not deprived of their liberty because
they can leave at any time by agreeing to their removal or onward
journey.
Such a tortured logic of the definition of detention is at odds
with international law, under which the holding of any child in
administrative detention in a transit zone would constitute deprivation
of liberty.
Despite rulings from France’s own courts and judgments clarifying
international law binding on France, France has persisted with this
detention policy.
The Court of Cassation, France’s highest civil and
criminal court, held in 2009 that, “A child held at the Roissy Charles
de Gaulle airport transit zone is de facto on French territory.”
In 1996
the European Court of Human Rights, in Amuur v. France, issued
a binding opinion stating that,
“The international zone does not have
extraterritorial status” and that people held in the international zone
of a Paris airport are subject to French law.
France has not revised its
law to conform to these rulings. When Human Rights Watch sought an
explanation from multiple government officials, they were unable to
provide one.
The Convention on the Rights of the Child, to which France is party,
obliges the government to afford special assistance and protection to
children without family.
The Committee on the Rights of the Child, the
body charged with overseeing the convention’s implementation, stated in
2013 that “States should expeditiously and completely cease the
detention of children based on their immigration status.”
The committee
has also observed that transit zones cannot be used to diminish a
country’s responsibility toward a child:
[S]tate obligations [to unaccompanied children]
cannot be arbitrarily and unilaterally curtailed either by excluding
zones or areas from a State’s territory or by defining particular zones
or areas as not, or only partly, under the jurisdiction of the State.
Moreover, State obligations under the Convention apply within the
borders of a State, including with respect to those children who come
under the State’s jurisdiction while attempting to enter the country’s
territory.
The Separated Children in Europe Program, a network of
nongovernmental groups and UN agencies working with unaccompanied
children in European countries, states in its best practice guidelines
that unaccompanied children “must never be detained for reasons related
to their immigration status or illegal entry.
This includes, whether
temporary or otherwise, detention at the border or in international
zones[.]”
France should immediately revise its laws and practice to admit
unaccompanied children directly to the territory and give them the same
care afforded other unaccompanied children in France, instead of
detaining them in transit zones.
Children detained with unrelated adults are at risk
Providing a special place for unaccompanied children, the children’s space (espace mineurs)
inside the main detention facility at Roissy is a positive step, but
the space is not large enough to eliminate the problem of housing
children with unrelated adults.
When children are detained with
unrelated adults – which violates international standards on conditions
of confinement – they are vulnerable to abuse and exploitation.
The children’s space at Roissy consists of three bedrooms, each with
two beds.
When there are more than six unaccompanied children, or an
incompatible number of boys and girls, the oldest – for example, those
over 13 – are sent to stay in the adult section.
“Sometimes we don’t
have a choice, especially in September or October when there is a lot of
traffic,” the commander of the detention facility (ZAPI 3) at Roissy
told Human Rights Watch, indicating this was not an uncommon practice.
A
staff member working in the children’s space said that in October 2013
10 children were in the adult zone, in addition to the six in the
children’s zone.
Staff members in the children’s zones told Human Rights Watch that
they try to offer assistance to children placed in the adult facility,
“But it’s not always possible,” one said.
A 17-year-old girl told Human
Rights Watch that she spent two days in the adult facility, sharing a
room with five unrelated women, during which time she had no contact
with the mediators from the children’s zone or with her ad hoc
administrator.
Although children held in the children’s space have access to many of
the amenities available in the rest of the detention center, they do
not have access to nongovernmental groups that may offer needed
assistance, including advice on legal and procedural matters.
The French
group, Association nationale d’assistance aux frontières pour les
étrangers (National association for aid to foreigners at the borders,
Anafé), provides some assistance to people in the transit zones
generally, but children in the children’s space cannot access this help,
as they cannot move outside the espace mineurs.
Neither adults nor children have regular legal assistance.
Anafé has
for some time been advocating permanent legal assistance in the transit
zones for children and adults alike.
France should ensure that unaccompanied children held in transit
zones are never held with adults and that they have access to legal and
other assistance.
Children get inadequate assistance when they arrive
Two organizations, the French Red Cross and the nongovernmental group
Family Assistance, provide ad hoc administrators for unaccompanied
children who arrive at Roissy.
The system has improved significantly
since 2009, including through increased training of volunteers, but
still lacks sufficient government funding to meet the requirements of
guardianship laid out by the Committee on the Rights of the Child.
When
large numbers of children arrive, or when children arrive on weekends or
holidays, there can be delays in assigning guardians. Some children are
left without assistance during key moments.
The primary task of the ad hoc administrator is effectively to
validate the authorities’ actions by making up for the child’s lack of
legal capacity and ensuring that the child is represented. In practice,
the border police do not ensure that children who arrive at ports of
entry other than Roissy are systematically given assistance.
Without assistance, children are extremely vulnerable.
Anafé, the
principal organization providing legal advice to foreigners arriving at
Roissy and Orly airports, documented a case in July 2013 of a
16-year-old Ivorian girl who was deported without seeing an ad hoc
administrator.
She was returned from Orly to Morocco, where she had no
family members and no ties, before being sent on to Côte d’Ivoire.
When children arrive at Roissy there is often a delay of several
hours or a day before the administrator meets the child.
Even without
delays the system does not require an ad hoc administrator to be present
when the child is subjected to some of the most important procedures in
the transit zone, including when they are read their rights, presented
with initial procedural paperwork to sign, or undergo age determination.
Sylvie M., a 17-year-old girl from the Democratic Republic of the
Congo, said she was detained at about 6 a.m. and held in the terminal
detention cell for 12 hours before being sent to the main detention
center (ZAPI 3), where she didn’t see an ad hoc administrator until
after an age determination exam two days later.
“I stayed there a long
time before anyone explained anything,” she said.
Children arrive at Roissy exhausted and vulnerable.
Police ask them
to sign documents before anyone arrives to represent them.
When Human
Rights Watch observed the court proceedings for Abid M., a 16-year-old
unaccompanied boy from Syria, the defense lawyer asserted that Abid had
signed initial paperwork prior to meeting his ad hoc administrator.
This
paperwork enabled the government to start deportation and age
assessment proceedings for him.
The French Red Cross, the largest organization providing ad hoc
administrators, has repeatedly sought a more permanent presence at
Roissy.
That would require increased governmental funding.
An ad hoc
administrator told Human Rights Watch that he and others had been
pushing to have administrators present when children are initially read
their rights and have to sign paperwork, to ensure they understand the
procedures they face and are given the chance to present their case most
effectively.
The Committee on the Rights of the Child says countries should
appoint a guardian as soon as someone is suspected of being an
unaccompanied child.
That person should be consulted and informed about
all actions taken with regard to a child, including age assessment.
This
should happen before the age assessment, to give the claimant the
benefit of the doubt.
That French law permits age determination of a
child without a guardian leaves children without basic protections.
The ad hoc administrators system is underfunded, leaving children
without assistance at key moments.
The system relies heavily on
volunteers, and the government reimburses a minimal rate of €150 per
child represented, with no provisions for covering out-of-pocket
expenses such as transport, communication, or additional work for
appeals.
A veteran ad hoc administrator told Human Rights Watch that the
payment is insufficient to allow adequate response to a child’s needs
at each stage of the immigration review process.
France should provide adequate resources for its guardianship program
and ensure that the needs of children in all transit zones are met.
The
government should make sure officials assign a guardian to anyone
claiming to be, or they suspect is, under 18.
Inappropriate procedures for asylum
Unaccompanied children in transit zones are subject to expedited
asylum procedures, and must prove that their claim is not manifestly
unfounded while unaccompanied children “in” France proceed directly to a
full asylum hearing.
This fails to acknowledge the vulnerability of
transit children and the time needed to prepare their claims
effectively.
When Human Rights Watch met with the Office for Refugees in February
2014, officials described a complex hearing procedure for children in
transit zones somewhere between a “manifestly unfounded” test and a full
asylum hearing, leaving concerns that children are not given the time
or resources to prepare for such a process.
When a child in a transit
zone claims asylum, the French Office for the Protection of Refugees and
Stateless Persons (OFPRA) determines whether the child’s claim is
“manifestly unfounded” and issues an opinion to the Interior Ministry.
If the child’s claim is not rejected as manifestly unfounded, the child
may enter France and submit a regular asylum claim.
If the claim is
rejected, the child must file an appeal within 48 hours.
The child is
protected from deportation during the appeal.
If the child does not
appeal or if the appeal is unsuccessful, the child remains in detention
and may be deported at any point.
Complex procedures can confuse unaccompanied children, particularly
those who have traveled long distances and are exhausted. Human Rights
Watch interviewed Yemi G., a 17-year-old unaccompanied Nigerian boy, in a
holding cell 10 hours after he had been stopped as he got off a plane.
He said he did not understand what would happen to him or to his asylum
claim.
“I told the police I want to seek asylum,” he said.
“This room is
like a cage… I’m scared now, I don’t want to go back to Nigeria… I’m
tired but I can’t sleep, I’m worried.”
Children like Yemi should not be subjected to expedited procedures.
The central tenet of the Convention on the Rights of the Child is that
the best interest of the child must be the primary consideration in
decisions by administrative authorities, and this explicitly includes
asylum decisions.
.Experts for the Separated Children in Europe Program, a
European network of nongovernmental groups, maintain that unaccompanied
children should be exempted from accelerated asylum determination
procedures, such as the “manifestly unfounded” test
Children’s cases should be considered in full, with due attention to
the best interests of the child, and with the child given adequate legal
assistance.
France should immediately suspend the use of “manifestly
unfounded” hearings for unaccompanied children seeking asylum.
Age determination falls short of international standards
France has inadequate procedures for determining age.
There is no
assurance that children get the benefit of the doubt; they do not always
have assistance from ad hoc administrators during the procedure; there
is no meaningful appeal; and the government still seems to rely heavily
on outdated medical testing.
Children are not automatically presumed to be children while age
determination is pending and so are not assigned an ad hoc administrator
until the procedure has taken place. Consequently, some are treated as
adults until their claim is resolved.
Some children have no assistance navigating the flawed procedure.
According to the Committee on the Rights of the Child, children should
be given effective representation by a guardian during age
determination.
Experts with the Separated Children in Europe Program
urge that if there is doubt about a child’s age or identity, the child
should be allowed to enter the country during the assessment, and an
independent guardian should be appointed immediately after a person
claims to be an unaccompanied child, regardless of whether the
authorities require further age assessment.
Children erroneously found to be adults have no meaningful way to
appeal that decision.
Children in such a position are then treated as
adults – and potentially subject to expedited deportation procedures.
French policy states that bone tests should be a last resort, and
Sodini, one of the Interior Ministry officials, told Human Rights Watch
that age determination should take into account a wide body of evidence.
Yet interviews with police and staff in the transit zones,
nongovernmental groups, and ad hoc administrators indicate that France
still relies heavily on a bone test to determine age.
Physical
assessments – without taking into account other indicators of age – are
imprecise.
The French high council for public health (Haut conseil de la
santé publique) specifies that such tests have a standard margin of
error of one to two years.
Age assessments should not rely exclusively
on physical tests but should take into account psychological maturity,
demeanor, and social and educational history.
The numbers themselves reveal concerns about the accuracy of France’s
age assessments.
Figures from the Interior Ministry indicate that in
2012, 7 percent, or 16 of 217 purported children at Roissy who were sent
for bone tests were found to be adults, compared with 10 out of 15, or
67 percent, at Orly airport.
France should give the benefit of the doubt to the claimant, and
assign an ad hoc administrator to assist with the procedure. France
should redouble its efforts to ensure that multidisciplinary assessments
are used consistently, end over reliance on faulty medical tests, and
ensure sufficient avenues for appeal.
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