In drawing up the New Pact on Migration and Asylum, the European Commission was once again faced with a conundrum: how to reconcile the desire to reduce irregular immigration with the legal obligation to protect minors? A first step was to sprinkle the Pact with references to “the best interests of the child”. With the risk, according to Elisabeth Schmidt-Hieber, communications officer for SOS Children’s Villages International, “that this notion is placed here and there without any real guarantees”.
The Convention on the Rights of the Child (CRC) defines a child as “every human being below the age of 18 years”, a definition taken up by the Commission in its 2017 Communication on the protection of migrant children. However, the Pact specifies that only families with children under 12 years old will be exempted from the new accelerated asylum procedure at the border.
It is a “problematic” distinction for Elisabeth Schmidt-Hieber, who points out that the 2003 Directive on family reunification also provided for different treatment according to the age of the minor: “When a child is over 12 years old and arrives independently from the rest of his family, the Member State may, before authorising his entry and residence […], examine whether he meets an integration criterion”. On what basis does the Commission distinguish between children under and over 12 years of age?
Contacted in connection with this article, a Commission spokesperson points out that the 2013 Procedures Directive, by allowing member states to apply procedures at the border, does not provide “an explicit exemption for accompanied minors”. The exemption provided for in the Pact should therefore be seen as a step forward, “ensuring an appropriate balance between the protection of the most vulnerable and the need to maintain an effective border procedure with a sufficiently broad scope”. In other words, since exempting all families with children would reduce the scope of the (now compulsory) procedure, childhood has been divided into two sub-categories, with the threshold at the age of 12 being drawn according to a criterion that remains unexplained.
The concept of the best interests of the child is also problematic. The CRC does not provide a precise definition, but the term is generally associated with “the protection …