Leiden Law Blog

Migrant children need further protection

Posted on by Silvia De Rosa in Public Law
Migrant children need further protection

From 20 to 22 May 2014, Nils Muižnieks, currently in charge of the office of the Council of Europe Commissioner for Human Rights, met and held discussions with several Dutch officials and independent experts with a view to assessing the situation of human rights in the country.

Overall, the report published following the visit acknowledged the existence of a well-established system of human rights protection in the Netherlands. Nevertheless, at the same time, it stressed some substantial deficiencies with regards to the situation of the most disadvantaged children, such as those seeking asylum.

In particular, the commissioner expressed concern about the fact that under Dutch migration laws, children from third states can be detained in many situations.  One of these being at the border upon arrival with their families, for the amount of time necessary to process their asylum claim, which can be up to 14 days.

The facility where they are held at Schiphol airport is an actual detention center, although leaving a certain leeway of free movement and being in overall good conditions. Nonetheless, since no child care is available, children have to be present during their parents’ interviews with the immigration authorities, which can have a psychologically detrimental impact on them, and also prevent the adults from disclosing certain facts regarding their situation.

If the children are unaccompanied, since the policy change of 2010 they are no longer held in custody but placed in a special open reception center. However, if they are awaiting deportation – for example because their asylum application was rejected - they may face detention under some circumstances, mostly related to their non-cooperative or unlawful behavior. Given the highly traumatic effects that detention can have on children, the commissioner generally recommended that the Netherlands apply this measure only as a last resort and for the shortest time possible.

What equally fell under scrutiny were the conditions for the application of the “Children’s Pardon”, which were assessed as being too restrictive. These measures allow the granting of a residence permit to children who have been living in the Netherlands for five years, but who do not meet the requirements for asylum. Nevertheless, only children who: have previously applied for asylum before turning 13; are not older than 21; have not evaded government supervision for more than three months and have not lied multiple times about their identity, can receive a permit.

As a result, too many children are excluded from this benefit, including stateless children. With regards to the latter, the commissioner reminded the Netherlands that, under Article 1 of the United Nations Conventions on the Rights of the Child, States have an obligation to grant nationality to all babies born on their territory who would otherwise be stateless. It was therefore recommended that the Dutch government adapt its legislation accordingly.

Although the recommendations of the commissioner are not formally binding, they constitute an authoritative statement on the level of compliance of the Netherlands with the Council of Europe’s standards of protection of human rights. Therefore, the national government should build upon all the newly adopted laws and policies in order to fully implement the measures provided therein, and consequently improve the level of protection for the most vulnerable children in the country.

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