The analysis of the unaccompanied children’s right to
free legal assistance in asylum proceedings in United
Kingdom and United States of America
Ewa Gierszewska
Under the supervision of Prof. Kevin Heller
Student number: 12338788
Mastertrack: LLM Public International Law E-mail: ewasarag2@gmail.com
Abstract
This thesis deals with the topic of unaccompanied children seeking asylum and their right to receive free legal assistance during asylum proceedings. Through the analysis of the problem the aim of the thesis is to demonstrate that adherence to procedural standards is necessary to ensure fulfilment of substantive rights. My particular interests in international human rights law directed its focus towards children’s right due to my recent engagement with children’s charity and possibility to provide them direct help in mitigating consequences of a natural disaster. Passionate about children’s rights I decided to focus my research how international human rights law contributes to legal aid for the most vulnerable group of persons, unaccompanied minors seeking asylum. This analysis has been conducted through a comparison of two countries: the United Kingdom and the United States of America. Such choice has been made due to different international legal background in those two countries regarding children’s rights, especially with regard to ratification of the UN Convention on the Rights of the Child.
The first chapter outlines the framework of the child’s right to access to court and singles out the provision of State-funded legal assistance as a necessary component of effective access to justice. It explores international legal instruments and determines that the biggest amount of protection stems from UNCRC.
The following two chapters focus on national perspectives. The analysis of US legal system depicts reluctance to universal human rights protection to the detriment of children on the move. Lack of provision of free legal assistance points towards violation of Due Process rights and risk of refoulement. On the other hand, the UK employs a categorical right to State-funded legal advice for asylum seeking minors, which contributes to higher rate of positive decisions and enhanced protection.
The thesis shows that even though the UNCRC has contributed significantly to increased social and legal awareness in the area of children’s rights, lack of specific regulation of provision of legal assistance in civil proceedings, not to mention in asylum proceedings concerning unaccompanied minors, results in scarce aid towards establishment of this standard. Regional human rights tools, as well as national human rights culture are identified as prevailing factors in creating appropriate protection for unaccompanied minors seeking asylum.
Table of Contents
Abstract ... 2
Table of Contents ... 3
1. Introduction ... 5
2. The framework of the right of unaccompanied minors to legal assistance in asylum proceedings ... 6
2.1. Seeking asylum by unaccompanied minors ... 7
2.1.1. Terminology and classification ... 8
2.1.2. Vulnerability and reasons for special protection ... 8
2.2. Child’s access to justice ... 9
2.2.1. Development ... 10
2.2.2. The international legal framework: the right to legal assistance as a component of the right of access to court ... 10
2.3. Child’s right to legal assistance in asylum proceedings ... 12
2.4. Final observations on the child’s right to legal assistance in asylum proceedings 14 3. The United States of America and the unaccompanied minors’ right to legal assistance ... 15
3.1. The United States of America and the UN Convention on the Rights of the Child ... 16
3.2. The United States of America and the Inter-American Human Rights System ... 18
3.3. US national law regulating unaccompanied minors’ right to legal assistance during asylum proceedings ... 21
3.3.1. US asylum procedure in brief ... 22
3.3.2. Development of the child’s right to counsel in civil proceedings ... 23
3.3.3. Child’s right to counsel in immigration proceedings ... 24
3.4. Interim conclusion ... 27
4. The United Kingdom and the unaccompanied minor’s right to legal assistance .. 28
4.1. The United Kingdom and the UN Convention on the Rights of the Child ... 29
4.2. The United Kingdom and European law ... 31
4.2.1. European law framework of access to court ... 32
4.2.2. Protection of the unaccompanied minor’s access to court ... 33
4.3. The United Kingdom’s national law regulating unaccompanied minor’s right to legal assistance during asylum proceedings ... 34
4.3.1. Asylum procedure for unaccompanied minors ... 35
4.3.2. Unaccompanied minor’s seeking asylum right to legal assistance ... 36
4.4. Interim conclusion ... 37
5. UNCRC: the deal-breaker for unaccompanied minors or merely a framework instrument? ... 38
6. General conclusion ... 39
1. Introduction
Article 14 of the Universal Declaration of Human Rights1 provides that “everyone has the right to seek and enjoy in other countries asylum from persecution”. International law has developed accordingly to grant extensive protection to recognized refugees by virtue of the 1951 Convention on the Status of Refugees2. However, there is a substantial gap in protection offered to asylum seekers. A group that requires particular attention are unaccompanied minors seeking asylum, frequently victims of human trafficking, child labour and sexual violence. Thus, it is imperative to ensure that they can enjoy the highest level of protection the moment they enter the territory of country of refuge till the legalization of their stay.
The aim of the thesis is to investigate children’s right to free legal assistance in asylum proceedings to guarantee them to access to court necessary to obtain refugee status. The purpose of the examination is to demonstrate that procedural standards need to be followed in order to realize existing substantive rights. An analysis of the international legal framework will be conducted to confirm the identification of unaccompanied minor’s right to legal assistance as part of his or hers right of access to justice. Two countries will be examined, the United Kingdom and the United States of America. These two countries were chosen because they are both common law countries, but the latter didn’t ratify the United Nations Convention on the Rights of the Child3, a prime international instrument guaranteeing children’s rights, which, even though indirectly, guarantees child’s right to free legal assistance in asylum proceedings. The regulations of national law in the UK and in the USA will be examined to assess the compatibility with their international and regional human rights obligations. Finally, a conclusion will be reached to determine the extent to which UNCRC influences the provision of free legal assistance to unaccompanied minors in asylum procedure, as well
1UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), hereinafter UDHR
2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, hereinafter 1951 Refugee Convention
3 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, hereinafter UNCRC
4 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United 2 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, hereinafter 1951 Refugee Convention
3 UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, hereinafter UNCRC
as countries’ individual performance of the international standards it has pledged to honour.
2. The framework of the right of unaccompanied minors to legal
assistance in asylum proceedings
In this chapter the readers will be offered a precise analysis of unaccompanied children’s right to legal assistance in asylum proceedings. The first part will introduce the focus group through an explanation of classification, vulnerabilities and consequences of being an unaccompanied minor. The second part will convene at the child’s access to justice. The right to legal assistance will be identified as an element of effective access to justice and international legal provisions providing this safeguard will be discussed. Subsequently, this framework will be elaborated with a specific focus on the particularities of asylum procedure. Finally, it will be established that international legal framework does oblige states to provide free legal assistance to unaccompanied minors in asylum procedure.
While the 1951 Refugee Convention is the primary instrument regulating the rights conveyed to refugees, there is no specific convention regulating the rights of asylum seekers. Despite the common mistake of equalling rights of refugees with those of asylum seekers, the latter group is greatly disadvantaged when it awaits the outcome of asylum decision, because it is stuck in a legal limbo between persona non grata status in their country of origin and the possibility to enter the society of the country of refuge by legal recognition of the need for international protection. Thus, it is of outmost importance to ensure that human rights applicable to all persons present on the territory of the state are extended to asylum seekers.
The main instrument regulating children’s rights is the UNCRC. Although there is no single provision regulating the right to legal assistance, Articles 12, 22, 37 and 40 are of special importance. Other international mechanisms that will be considered include, Article 8 and 10 of the UDHR, Art. 2(3) of the International Covenant of Civil and
Political Rights4, Article XXVI of the 1948 American Declaration of the Rights and Duties of Man5 and Articles 3 and 6 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms6.
2.1. Seeking asylum by unaccompanied minors
The Article 14 UDHR right is not age-specific and extends to all human beings. Due to the document’s status as customary international law, the right applies to all persons in all countries in the world. Based on immigration statistics, over a half of persons seeking legalisation of their stay (including those applying for asylum) are children. The United Nations Children’s Fund (UNICEF) has estimated that there were around 100,000 unaccompanied migrant and refugee children in 20157. According to the data provided by EUROSTAT, in 2018, there were 19,7408 asylum applications submitted by unaccompanied minors in the European Union, 2,8709 of them registered in the United Kingdom. In fiscal year 2018 the U.S. Border Patrol apprehended 50,03610 unaccompanied minors, 8,62411 of which were deemed inadmissible, while the others are awaiting the determination of their status.
As the numbers indicate, the scale of the lone child migration is immense. Thus, it key to provide legal and procedural safeguards and administrative mechanisms to ensure efficient and fair processing and determination of the status of the applicants. Before moving to the consideration of the above-mentioned aspects, it is necessary to instil the classification of such minors and understand their vulnerability.
4 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, hereinafter ICCPR
5 Inter-American Commission on Human Rights (IACHR), American Declaration of the Rights and Duties
of Man, 2 May 1948, hereinafter American Declaration
6 Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5, hereinafter ECHR.
7 See more at:
http://www.europarl.europa.eu/thinktank/en/document.html?reference=EPRS_BRI(2016)595853 8See more at: http://appsso.eurostat.ec.europa.eu/nui/show.do?dataset=migr_asyunaa&lang=en 9 Ibid.
10 See more at: https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018 11 Ibid.
2.1.1. Terminology and classification
UNHCR’s Guidelines on Polices and Procedures in dealing with Unaccompanied Children Seeking Asylum define an unaccompanied child as “a person who is under the age of eighteen, unless, under the law applicable to the child, majority is, attained earlier and who is separated from both parents and not being cared for by an adult who by law or custom has responsibility to do so”12. This includes minors that are without any care provided by adults, entirely on their own, but also minors accompanied by their minor siblings, who, as a group, are not supported by any adult13. The group covered by this definition closely corresponds with the class of young persons offered protection by the UNCRC. It pertains to the definition employed by UNHCR and classifies unaccompanied minors as “children who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so”14. As recognized by the Committee on the Rights of the Child in General Comment No. 6, the UNCRC extends its protection to this vulnerable group of children. The Comment further confirms that appropriate legislation and enforcement should be offered as part of a broader legal framework comprising of numerous international instruments15 implemented in line with the UNCRC.
2.1.2. Vulnerability and reasons for special protection
There are a number of reasons why children can be unaccompanied, ranging from international conflict or civil war to which their parents have fallen victims, prosecution of children’s parents, gang violence, human trafficking or smuggling, including sale by parents, due to their inability to provide for the child to accidental separation during the journey to seeking protection. Unaccompanied minors can face greater risks, by reason of
12 UN High Commissioner for Refugees (UNHCR), Guidelines on Policies and Procedures in Dealing with
Unaccompanied Children Seeking Asylum, February 1997, p. 1
13 UN High Commissioner for Refugees (UNHCR), Assistance to unaccompanied refugee minors: Report
of the Secretary-General, 24 August 2005, A/60/300, para. 45.
14 UN Committee on the Rights of the Child (CRC), General comment No. 6 (2005): Treatment of
Unaccompanied and Separated Children Outside their Country of Origin, 1 September
2005, CRC/GC/2005/6, para 7 15 Ibid, para 15
their vulnerable status. Children on the journey, without parental guidance are more susceptible to the influence of anyone offering them a vision of safety. Thus, they often become victims of military recruitment filling the ranks of illegal military groups, are sexually abused and exploited, subject to child labour and detained16. They are often discriminated and denied access to food, shelter, health services, housing and education. Sometimes the law stands against those children. They don’t have access to proper identification, age assessment, registration and documentation17 that would allow them to travel though regular migration channels and forces them to embark on illegal journeys with the assistance of human smugglers to reach their country of destination18. Consequently, it is of the outmost importance that unaccompanied minors have access to justice, which includes, inter alia appropriate guardianship and legal representation to ensure they are safe and protected.
2.2. Child’s access to justice
Article 8 of the Universal Declaration of Human Rights provides that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law”. Article 10 further enshrines that “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. The text of the declaration, which has been incorporated as part of customary international law19, does not exclude persons at any age. Children’s access to justice can be defined as “the ability to obtain a just and timely remedy for violations of rights as put forth in national and international norms and standards”20. As UN Common Approach to Justice for Children outlines, “proper access to justice requires legal empowerment of all children: all should be enabled to claim their
16 Child Soldiers Global Report 2001, London, Coalition to Stop the Use of Child Soldiers. 17 Ibid, para 3.
18 Ibid (n 7), p. 3
19H. Charlesworth, Universal Declaration of Human Rights (1948), Max Planc Encyclopedia of Public
International Law, February 2008, para 15
rights, through legal and other services such as child rights education or advice and support from knowledgeable adults”21.
2.2.1. Development
Traditionally, children were not perceived as right-bearers and had no opportunity to make their own decisions, express their opinions22. They were tangled in the system, in which adults made choices regarding their fate based on their own perspective of what is in the best interest of the child without consulting the child, taking into account its feelings, experiences and trauma. Such approach derived from the confidence that children are mentally incapable to make decisions23.
However, in asylum procedure, child’s understanding of the process, necessary to extract appropriate information is crucial to equitable access to justice. Over the last few decades, the concept of access to justice has evolved for the benefit of children from the right to have legal action taken to provision of just and equitable remedies24. Access to justice is imperative in restoring the rights that the child has been stripped of or those that have been violated. Equitable access means that all children need to be equally served and protected by the justice system25.
2.2.2. The international legal framework: the right to legal assistance as a component of the right of access to court
Access to justice is an indispensable right in itself and a precondition for promotion and protection of other human rights26. International instruments ensure that aliens are treated with the same standards afforded to nationals in the territory of the state
21 Ibid.
22B.C. Hafen & J.O. Hafen, Abandoning Children to their Autonomy: The United Nations Convention on
the Rights of the Child, 37 Harv. Int’l. L.J. (1996) 449, 450
23R.G. Wilkins; A. Becker; J. Harris; D. Thayer, Why the United States Should Not Ratify the Convention
on the Rights of the Child, 22 St. Louis U. Pub. L. Rev. 411 (2003), p. 417
24 United Nations Children’s Fund (UNICEF), The Regional Office for CEE/CIS, Children’s Equitable
Access to Justice, Central and Eastern Europe and Central Asia, UNICEF, Geneva, 2015, page 18
25 Ibid.
26UN Human Rights Council, Promotion and protection of all human rights, civil, political, economic,
in question. Article 2(3) of the ICCPR provides for access to court and a right to effective remedy. The Human Rights Committee has underlined the importance to adapt the right to all age categories by outlining that “States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children”27. The Human Rights Council has also taken the issue into consideration. In Resolution 25/6, it stressed the “need to respect all legal guarantees and safeguards at all stages of all justice processes concerning children, including due process, the right to privacy, the guarantee of legal aid and other appropriate assistance under the same or more lenient conditions as adults and the right to challenge decisions with a higher judicial authority”28. It is worth noting that the Council used potent language describing the right to legal aid as a “guarantee” that needs to be ensured for children.
Child-specific UNCRC provides for the right to legal assistance in Article 37(d) in the particular case of deprivation of liberty and in Article 40(2)(b)(3) in the context of criminal procedures. It stresses “prompt” access to legal assistance. The Committee on the Rights of the Child, when discussing justiciability of rights points out the importance of child-sensitive procedures which “should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy and access to independent complaints procedures and to the courts with necessary legal and other assistance”29. Thus, it is abundant that the right to legal assistance for children in need is a necessary component of access to justice, a right, which needs to be strictly enforced in any state ruled by law.
27 UN Human Rights Committee (HRC), General comment no. 31 [80], The nature of the general legal
obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, para 15.
28 Ibid (n 26), point 9
29 UN Committee on the Rights of the Child (CRC), General comment no. 5 (2003): General measures of
implementation of the Convention on the Rights of the Child, 27 November 2003, CRC/GC/2003/5
2.3. Child’s right to legal assistance in asylum proceedings
Some general human rights treaties contain specific measures related to aliens. Article 13 ICCPR, which underlines that an alien, lawfully present on the territory of a state, has a right to legal representation in expulsion proceedings30 serves as an example. The UNCRC and the Committee on the Rights of the Child established therewith, provide sufficient guidance regarding the treatment of unaccompanied minors in need of international protection. Unfortunately, even though the UNCRC does not contain a derogation clause that allows for a suspension of certain rights in emergency situations the contracting Parties are allowed to make reservations to the Convention, most of them issued in regard to treatment of non-national and refugee children to which Article 22 applies31. Nevertheless, States also need to comply with the recommendations published by the Committee on the Rights of the Child, which interpret the provisions of the Convention in favour of unaccompanied minors.
The UNCRC is one of the instruments that applies to each child within the jurisdiction of the contracting Party regardless of his or hers nationality32. The overarching idea constituting a foundation of the Convention is the recognition that children are entitled to special care and assistance33. Moreover, the UNCRC contains regulations particularly addressing the group of unaccompanied minor children. Article 20 indicates that unaccompanied children are entitled to special protection and assistance. Article 22 is devoted to protection of children on the move. In relation to asylum procedures, it mentions contracting Parties’ obligations to take appropriate measures, and ensures that all children seeking asylum, whether accompanied or not, are provided with “appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties”34. Further, the Convention contains some fundamental principles, which should be taken into account in all actions
30 Art. 13 ICCPR
31 However, this does not apply to the two countries analysed in this thesis, since the USA is not party to the Convention and the UK has not issued a reservation to any Convention provisions.
32 UNCRC, Art. 2(1) 33 UNCRC, Preamble 34 UNCRC, Art. 22
concerning children. The prime example, particularly applicable to unaccompanied minors seeking asylum is the best interest principle outlined in Article 3. Thus, special attention is required from States while determining the best interest of unaccompanied children35. As the Committee pointed out in its General Comment No. 14, the States are required to design specific procedures guaranteeing a major level of protection in decisions affecting children, including, among others, those concerning asylum and immigration proceedings36. Further, these individual decisions should always be “guided by the best interest of the child, as for all implementation measures”37. Additionally, the Committee recognized that the situation of children seeking asylum makes them especially vulnerable, what should be taken into account during best interest of the child determination38. These procedural safeguards are closely linked with Committee’s guidance on the provision of free legal representation to unaccompanied minors in asylum procedure.
It is important to start with a distinction of a legal guardian from a legal representative. The former is the legal caretaker of the child and not a qualified legal professional. This thesis investigates the provision of assistance of a legal representative, which is less commonly provided, despite the prevailing obligation to do so. To address the needs of all unaccompanied minors seeking asylum, no matter at what stage of the procedure, the Committee mentions that “the unaccompanied or separated child should also, in all cases, be given access, free of charge, to a qualified legal representative, including where the application for refugee status is processed under the normal procedures for adults”39. The last part of the sentence extends the protection to children approaching the age of majority, who are treated on the same footing as adult applicants, ensuring that there are no gaps in the safeguards offered to unaccompanied minors. What should also be noticed in this regard is the emphasis on “qualified” legal representation, which contributes significantly to provision of effective access to justice for
35 UN High Commissioner for Refugees (UNHCR), UNHCR Guidelines on Determining the Best Interests
of the Child, May 2008, para. 3.1
36 UN Committee on the Rights of the Child (CRC), General comment No. 14 (2013) on the right of the
child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC
/C/GC/14, para 30 37 Ibid.
38 Ibid, para 75. 39 ibid, para. 69.
unaccompanied minors in asylum procedure. Qualified representation ensures that children understand the process and have the right to participate, present their story and voice their concerns. This is enclosed in Article 12 of the UNCRC establishing child’s right to express his or her views freely. The right to be heard in any administrative or judicial asylum proceedings extends to unaccompanied and asylum-seeking children40. The Committee also pointed out that unaccompanied minors have the right to voice their concerns regarding legal representation41 and required States to guarantee appropriate assistance if the current arrangement prevents the child from expressing his or her wishes42.
2.4. Final observations on the child’s right to legal assistance in asylum proceedings
Everyone has the right to seek asylum and to enjoy freedom from persecution. It is not enough that States include in their national law the regulations and procedure for obtaining international protection, if there is no effective access to it. Thus, asylum seekers need to be provided with appropriate means to access the adjudication system and claim their right to asylum. Children deprived of the assistance offered to them by their parents or legal guardians find themselves in an extremely vulnerable situation faced with insurmountable administrative obstacles. Further, “the prohibition on refoulement would be essentially meaningless in instances where a fair hearing with legal representation is not available”43. Children that would qualify for refugee protection but are unable to present their case effectively would fall victim to this legal gap. To provide the equality of opportunities these children need to be assisted with professionals skilled in immigration law and child-oriented treatment. It is indisputable that unaccompanied minors fleeing persecution fail to give thought to administrative particularities connected to claiming asylum and do not possess enough financial means to cover legal expenses.
40 UN Committee on the Rights of the Child (CRC), General comment No. 12 (2009): The right of the child
to be heard, 20 July 2009, CRC/C/GC/12, para 32
41 Ibid (n 14), para 25 42 Ibid (n 36), para 44
43 B. Rowe, The Child's Right to Legal Assistance in Removal Proceedings under International Law, Chicago Journal of International Law: Vol. 10: No. 2, Article 12 (2010), p. 754
Thus, despite the increasing international consensus that aliens legally present on the territory of the State should have access to justice, that access needs to extended to cover free legal assistance for unaccompanied minors seeking asylum, who do not enjoy the same rights of the citizens of the state where they seek protection. According to the analysis conducted above, the UNCRC is the primary international instrument providing such opportunity. To assess whether regional human rights protection suffice in extending this standard and how national practices reflect it, a comparison of the United States of America and the United Kingdom will be conducted in the following chapters.
3. The United States of America and the unaccompanied minors’ right
to legal assistance
After a comprehensive analysis of the international legal framework concerning an unaccompanied minor right to legal assistance, which resulted in a positive finding of an existing obligation, the discourse now moves to a comparison of two common law legal systems offering different protection of rights and interests of unaccompanied minors.
This chapter will concentrate of the US framework of legal protection. Firstly, a brief dialogue will outline the relationship between the US and the UNCRC. On the basis of a historical reference, arguments against and in favour of ratification will be presented. Despite the vigorous debate between supporters and opponents of ratification of the UNCRC, there will be no one-sided conclusion, as this section serves purely to demonstrate the surrounding social and political tensions, which significantly contribute to lack of acceptance of the standards offered by the Convention. After sketching the picture of prevailing opposition to incorporation of UNCRC, US other international obligations, as well as responsibilities stemming from regional human rights protection system will be analysed to point out that the US is bound by other standards emphasizing provision of legal assistance to unaccompanied minors in seeking refuge. Further, US statutory law on children’s access to justice, as well as fairness of proceedings, and closely connected provision of legal assistance, will be covered to establish to what extent does it offer possibilities of legal assistance to children, including, predominantly,
unaccompanied minors of different nationality in need of international protection. Subsequently, an insight will be offered into the national courts’ interpretation of existing statutory obligations and case law thereby created. Finally, the conclusion will assess the US compatibility with its international obligations and the extent to which the protection offered to unaccompanied minors in asylum procedure can be considered effective in the light of existing legislation.
The United States of America is highly reluctant to ratify international human rights treaties. Thus, from the instruments discussed in the first chapter, only few are applicable. First and foremost, the US is obliged to honour the provisions of UDHR, as they have attained the status of customary international law. Secondly, the US is a party to ICCPR and remains territorially bound by its standards. It should also take into consideration the guidance offered by the Human Rights Committee in the aspect of provision of legal counsel to children. Finally, even though the US failed to ratify the UNCRC, it remains a signatory. It also continues to hold the status of a signatory of the Vienna Convention on the Law of Treaties, which, in Article 18 explicitly provides that “a State is obliged to refrain from acts which would defeat the object and purpose of the treaty” when a State has signed that treaty. Even though it could be considered as a far-fetched inference, one could suggest that the US by failing to respect the object and purpose of the UNCRC would act against its obligation under VCLT. The Inter-American Commission on Human Rights has supported such conclusion pointing out that the US, as a signatory of the treaty, is legally bound to refrain from actions defeating the object and purpose of the treaty in question44.
3.1. The United States of America and the UN Convention on the Rights of the Child
As mentioned above, this section aims to present a prevailing political and social climate with regard to UNCRC. The arguments presented will create a picture of the opposition taking over more internationally oriented claims of proponents, who fail to reach the majority. This will show that the stance towards an international document
44 Organization of American States (OAS), Inter-American Commission on Human Rights, Report on
influences national law-making regulating processes resulting from international relations of various kinds.
The process of the drafting of UNCRC commenced in 1979, when the delegation of Poland submitted a proposal to the General Assembly of the United Nations to create a comprehensive international treaty protecting children45. After 10 years of discussion the General Assembly adopted the Convention by resolution 44/2546. The US voted in favour. The US delegation, under the Reagan and George H.W. Bush Administration participated actively in the drafting process and influenced the current shape of the Convention47. It was the US that called for and submitted initial proposals to include articles creating child’s right to freedom of expression, freedom of religion, freedom of association and assembly, family reunification, protection from abuse and privacy48. After the Convention was opened for signature and ratification, both the House of Representatives and the Senate adopted resolutions supporting the Convention and proceeded to open it for signing in 1990 and subsequently in 1991, but the president did not see the ratification through49. The Clinton Administration signed the treaty in 1995, but it never submitted it to the Senate to seek consent for ratification due to strong opposition from selected Senators.
The critics of UNCRC advance the following arguments: the inefficient operation of the instrument due to lack of enforcement mechanism50, submission of sovereignty to international decision-makers51, stepping against the federal legal order regulating children’s rights52, limitation of parents’ rights53 and imposition of socio-economic rights that the USA is unable to implement54.
45 N. Thomas, 'Children's rights" policy into practice', Centre for Children and Young People: Background Briefing Series, 2011, no. 4 , p. 7
46 UN General Assembly, Convention on the Rights of the Child: resolution / adopted by the General Assembly, 5 December 1989, A/RES/44/25
47 T. Jeremy Gunn, The Religious Right and the Opposition to U.S. Ratification of the Convention on the
Rights of the Child, 2006, 20 Emory Int'l L. Rev. 111, p. 112
48 H. Davidson, Does the U.N. Convention on the Rights of the Child Make a Difference, 2014, 22 Mich. St. Int'l L. Rev. 497, p. 501 supra A.D. Renteln, Who's Afraid of the CRC: Objections to the Convention on the
Rights of the Child, 1997, 3 ILSA J. INT'L & COMP. L. 629, p.632-33
49 C. L. Schirmer, Punishing Children as Adults: On Meeting International Standards and U.S. Ratification
of the U.N. Convention on the Rights of the Child, 2008 16 Mich. St. J. Int'l L. 715, p. 724
50 Ibid (n 48), p. 512 51 Ibid (n 47), p. 119, 120
52 J. Quigley, U.S. Ratification of the Convention on the Rights of the Child, 2003, 22 St. Louis U. Pub. L. Rev. 401, p. 402
Proponents of the ratification concentrate their discourse on countering the arguments advanced by opponents and offering little original content. It is indeed true that US ratification would aid transforming UNCRC into supreme law of the world55. Further, the US has already extended those rights to children by ratifying the ICCPR, which covers all human beings without the limitation in the form of parental control recognized in the UNCRC56. Following the example of ICCPR, the US could issue a declaration of non-self-execution and avoid the problems of centralization of the law57. Additionally, American law is largely compatible with the legal provisions offered by the UNCRC, taking the best interest principle “posited as a desideratum by Article 3”58 of the UNCRC, as an example already omnipresent in statutory and case law of the states.
Even though the country is moving in the Convention’s direction, what can be demonstrated by the Supreme Court’s reliance on international standards when finding death sentence for juveniles unconstitutional59, there is still deep-rooted opposition towards letting any international influence into the national law of the US. The conservative sensitivity in the sphere of children’s rights influences the aspects of US immigration and asylum law and the treatment accorded to unaccompanied minors seeking shelter in the US. Despite lack of protection offered by the UNCRC to unaccompanied minors in asylum procedure, the US remains bound by regional human rights system, which exerts the standards that will be the subject of the next section.
3.2. The United States of America and the Inter-American Human Rights System
The American Declaration has been adopted as the first comprehensive, even though non-binding, human rights instrument. The Organization of American States (OAS), created alongside the American Declaration, comprises of 35 independent States of the Americas. The most prominent treaty of OAS is the American Convention on
53 Ibid (n 23), p. 419 54 Ibid (n 52), p. 406
55 S. Almog; A. L. Bendor, The UN Convention on the Rights of the Child Meets the
American Constitution: Towards a Supreme Law of the World, 2004, 11 Int'l J. Child. Rts. p. 273
56 Ibid (n 52), p. 405 57 Ibid (n 49), p. 723 58 Ibid (n 52), p. 405
Human Rights60 to which the US is not a party. OAS members that are not parties to American Convention have not recognized the contentious jurisdiction of the IACtHR created by virtue of it. Notwithstanding, they are allowed to consult IACtHR and request an advisory opinion on the compatibility of national legislation with the provision of OAS legal instruments61. Thus, IACHR is only allowed to take into account obligations stemming from American Declaration when conducting the review of USA’s situation by virtue of its membership in OAS62. Consequently, the examination below will include provisions of American Declaration as interpreted by the IACHR as well as guidance provided, albeit indirectly, by the IACtHR in its advisory opinions.
Article VII of the American Declaration recognizes that “all women, during pregnancy and the nursing period and all children have the right to special protection, care and aid”. Therefore, it acknowledges States’ obligation to adopt additional safeguards to those applicable to adult persons. Additionally, under Article XXVI of the American Declaration, “every person accused of an offence has the right to be given an impartial and public hearing…”. The IACHR has maintained that rights provided for in this article also apply to immigration proceedings and underlined that denial of that protection “simply by virtue of the nature of immigration proceedings would contradict the very object of this provision and its purpose to scrutinize the proceedings under which the rights, freedoms and well-being of the persons under the State’s jurisdiction are established”63. It pointed out that “all persons are equally entitled to the following minimum guarantees: (…) the right to provision of free legal representation to indigent persons in immigration proceedings”64. By extending the provisions applicable in criminal matters to immigration proceedings the IACHR remarks on the crucial role of
60 Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose",
Costa Rica, 22 November 1969, hereinafter American Convention
61 Organization of American States (OAS), Statute of the Inter-American Court of Human Rights, 1 October 1979, Article 2(2), supra American Convention Article 64
62 Ibid, Article 18
63 Organization of American States (OAS), Inter-American Commission on Human Rights, Human Rights
Situation of Refugee and Migrant Families and Unaccompanied Children in the United States of America,
24 July 2015, OAS/Ser. L/V/II. 155, para 84
64 Ibid para 85; The Commission in this sense shares the view of the Special Rapporteur on the Human Rights of Migrants, that States have the obligation to ensure that any child involved in immigration proceedings has the right to the provision of free legal counsel. See Report of the Special Rapporteur on the
Human Rights of Migrants, Promotion and Protection of all Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development, UN Doc. A/HRC/20/24, 2 April 2012,
the provision of appropriate legal assistance forming a part of the right of defence and right to be heard and participate in the proceedings. According to the IACHR, States are required to provide for appropriate assistance by counsel for children facing juvenile court proceedings, seeing as it is essential for child participation65. It also pointed out that for attorneys to be able to provide a proper defence for children “models must be adopted for supervising attorney practices and the children and their parents or representatives must be able to file complaints regarding the legal assistance received”.66 The IACHR noted that assistance by counsel is required from the beginning of the process to ensure the child understands the charges brought against him67. Seeing as a significant number of unaccompanied minors in asylum procedure in the US are detained, it is appropriate to mention IACHR’s observations regarding access to legal representation during detention. It recognized the complexity of immigration proceedings in the US and expressed deep concerns that “State-funded legal representation is not provided to unaccompanied children”68. Therefore, it recommended a general legislative change and stated that “with respect to unaccompanied children’s due process rights, the IACHR urges the State to appoint an attorney, at the State’s expense, to represent unaccompanied children in immigration proceedings”69. Thus, it is evident that the IACHR interprets the provisions of American Declaration as applicable in immigration proceedings and identifies the unaccompanied minors’ vulnerability, advancing to the US government impromptu provision of legal assistance.
The IACtHR and its advisory jurisdiction serves as a good source for rationale behind increased protection of unaccompanied minors and extension of State-funded legal representation in asylum proceedings. Firstly, it adopted the principle of the best interest of the child established by the UNCRC as the “primary consideration when a member State is contemplating a measure that might affect minors under its
65 Organization of American States (OAS), Inter-American Commission on Human Rights, Rapporteurship on the Rights of the Child, Juvenile justice and human rights in the Americas, 13 July 2011, OEA Ser.L/V/II Doc.78, para 175
66 Ibid.
67 Ibid, para 190. 68 Ibid (n 44), para 409 69 Ibid., para 452
jurisdiction”70. More importantly, it explained why due process guarantees need to be flexible and tailored to the individual situation. In its Advisory Opinion on the Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law it explained the following:
“to accomplish its objectives, the judicial process must recognize and correct any real disadvantages that those brought before the bar might have, thus observing the principle of equality before the law and the courts and the corollary principle prohibiting discrimination. The presence of real disadvantages necessitates countervailing measures that hep to reduce or eliminate the obstacles and deficiencies that impair or diminish an effective defense of one’s interests. Absent those counterveiling measures, widely recognized in various stages of the proceeding, one could hardly say that those who have the disadvantages enjoy a true opportunity for justice and the benefit of the due process of law equal to those who do not have those disadvantages.”71
Thus, ensuring appropriate access to court for all persons, their vulnerabilities should not be exploited, but addressed and cared for. Provision of free legal assistance to unaccompanied minors seeking asylum is a prime example of a countervailing measure helping to reduce the disadvantages attached to their situation. Following the provisions of American Declaration, observations and conclusions of the IACHR and rationale behind such decision-making provided by the IACtHR, it can be concluded that US obligations stemming from its membership in OAS strongly require provision of State-funded legal counsel for unaccompanied minors seeking asylum.
3.3. US national law regulating unaccompanied minors’ right to legal assistance during asylum proceedings
This section will discuss the provisions of US national law ensuring the appropriate access to court and fairness of asylum proceedings for unaccompanied minors seeking asylum. It will primarily focus on the analysis whether lack of State-
70 Ibid., supra IACtHR, Juridical Condition and Human Rights of the Child,” Advisory Opinion OC-17/02, paras 58-59
71 IACtHR Advisory Opinion, The Right to Information on Consular Assistance within the Framework of
funded legal assistance violates Due Process Clause guaranteed by the Fifth Amendment of the US Constitution. In order to present a valuable argumentation, the following structure will be employed. Firstly, a brief outline of the asylum procedure in the USA will be provided emphasizing the removal proceedings, during which, the final decision whether the child is granted asylum or not, is reached. Secondly, the development of the child’s right to counsel in civil proceedings will be explained. A discourse on whether that right extends to immigration proceedings will proceed. Further, a discussion on implications of no right to counsel in asylum proceedings will be conducted. Finally, the analysis will concentrate on why the appointment of the guardian and additional safeguards for unaccompanied minors do not suffice to satisfy Due Process Clause and guarantee unaccompanied minors seeking asylum a fair procedure.
3.3.1. US asylum procedure in brief
There are two types of asylum applications: affirmative and defensive. The first kind of applications is considered only when the removal proceedings have not yet begun. To apply for asylum, an individual needs to submit Form I-589 Application for Asylum and for Withholding of Removal, to United States Citizenship and Immigration Services (USCIS) with appropriate attachments. If one’s case is not approved and he or she does not possess a legal immigration status, his or her case will be forwarded to an Immigration Judge at the Executive Office for Immigration Review (EOIR). At this point a defensive asylum processing begins. It applies to applicants referred by USCIS after a negative decision was issued at the end of the affirmative asylum process or to those that are placed in removal proceedings because they have been apprehended in the USA without proper legal documents or in violation of their immigration status72. The vast majority of unaccompanied minors do not possess the knowledge of the asylum procedure, cross the US border illegally and are placed in formal removal proceedings within 72 hours73. The character of these proceedings is adversarial and includes a court-
72 See more at: https://www.uscis.gov/humanitarian/refugees-asylum/asylum/obtaining-asylum-united-states
73 M.R. Rosenblum, Unaccompanied Child Migration to the United States: The Tension between
Protection and Prevention, Migration Policy Institute, Washington DC, 2015 p. 10; UACs are placed in
like hearing. “In contrast with criminal proceedings, immigrants in removal proceedings are presumed to be removable unless they can convince the judge that they meet the criteria for asylum”74. Thus, unaccompanied children who illegally crossed the US border fleeing conflict or violence, in order to be granted asylum need to present and argue their case in front of an Immigration Judge who needs to be convinced that they are eligible for refugee status.
3.3.2. Development of the child’s right to counsel in civil proceedings
To commence the deliberations concerning child’s right to counsel in civil proceedings, it is important to note that the US Supreme Court has held in multiple cases “that children are people and thus enjoy the full range of Constitutional rights”75. This includes all provisions contained in the 1791 Bill of Rights. It is a well-established principle that the Sixth Amendment provides the right to counsel in criminal proceedings for all persons facing criminal charges. However, the Supreme Court has rejected the presupposition that deportation is a punishment and held that the Sixth Amendment is therefore not applicable in removal proceedings76. Thus, it is evident that they are characterized as civil proceedings. The history of the child’s right to appointed counsel points towards commonly identified tendency: vulnerability and special disadvantages of children. They were in fact the “conduit through which the right to counsel first expanded into the civil context”77. In 1963, in the case of Gideon v Wainwright78, the US Supreme Court replaced the previous approach established in Betts v. Brady79, which allowed for granting assistance of counsel in criminal proceedings only in special circumstances, with a categorical right to counsel in all felony prosecutions80. Only four years after Gideon, the Court extended that right to children in delinquency proceedings81. In Re Gault
74 Ibid., p. 9
75 S. Almog; A. L. Bendor, (n 47), p. 274
76 B. Good, A Child’s Right to Counsel During Removal Proceedings, Stanford Journal of Civil Rights & Civil Liberties, January 2014, p. 112 supra Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) 77 Ibid., p. 121
78 372 U.S. 335 (1963) 79 316 U.S. 455 (1942) 80Ibid. (n 78), p. 119
established a due process guarantee of appointed counsel and broke down the distinction between criminal and civil proceedings82. The rationale behind that extension was a similarity between imprisonment for committing a crime and incarceration for delinquency. Another hurdle overcome by In Re Gault is the nature of the delinquency proceedings, which is inherently informal, and its goal is to rehabilitate, not to punish. The Court concluded that various actors involved in delinquency proceedings cannot fully account for the best interest of the child83. As a result of In Re Gault, the right to counsel was extended to various types of proceedings involving children ranging from child welfare, child support maters, adoptions, paternity matters to personal injury or wrongful death cases. Consequently, there is recognition of the importance and crucial role of counsel in civil proceedings involving children84.
3.3.3. Child’s right to counsel in immigration proceedings
“Alien minors in removal proceedings are entitled to Fifth Amendment guaranty of due process”85. Under US law, immigrants, children as well as adults, may be represented by counsel at no expense to the government86. There are only limited procedural safeguards designed to recognize the special situation of minors. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) requires the government to “ensure to the greatest extent practicable that all unaccompanied alien children who are or have been in the custody of federal government have counsel to represent them in legal proceedings or matters”87, thereby encouraging the government to ensure “to the greatest extent possible” provision of attorneys to represent unaccompanied minors seeking asylum88. Additionally, Homeland Security Act 2002 directed the authorities to create and submit to Congress a plan for consideration to
82 Ibid, para 121
83 Ibid (n 76), p. 122, 123 84 Ibid (n 81), para 124.
85 Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004) 86 INA 240(b)(4)(A), 8 U.S.C.A. para 1229a(b)(4)(A)(West)
87 K. Musalo, L. Frydman, M. Seay, Immigration Remedies and Procedural Rights of Migrant Children
and Adolescents in Childhood and Migration in Central and North America, Causes, Policies, Practices and Challenges, February 2015, p. 299 supra para 235 (c) (5) TVPRA
ensure that “qualified and independent legal counsel is timely appointed to represent the interests”89 of unaccompanied children, “consistent with the law regarding appointment of counsel that is in effect on the date of enactment of this Act”90. Further, Executive Office for Immigration review issued guidelines on children’s cases for immigration judges aiming to make removal proceedings more child-friendly. They confer on judges’ discretion to create a child-friendly environment by taking steps such as “judges removing their robes and appearing in normal attire”91 if children feel intimidated by them. However, these guidelines are not binding and do not contribute substantially to decrease the adversarial character of removal proceedings. Up to recently, there have been some opinions of federal courts of appeal that the Firth Amendment’s guarantee “could require the appointment of counsel for individual aliens who are incapable of representing themselves due to age”92. Nevertheless, there is no decision in which a court reached a conclusion that the Due Process Clause requires the appointment of counsel for an alien93. A recent attempt to establish child’s right to appointed counsel in removal proceedings has been undertaken in C.J.L.G. v Sessions94, where the applicant argued that lack of counsel representing a minor in removal proceedings violates his due process rights. Invoking In Re Gault, C.J. argued that a general rule has been established that children cannot receive fair hearings without assistance of counsel. The Ninth Circuit court contested that “C.J.’s attempt to bootstrap Gault into the immigration context is unpersuasive”95, because In Re Gault is limited “only to the problems” relating to “proceedings by which a determination is made as to whether a juvenile is a ‘delinquent’ as a result of alleged misconduct on his part, with the consequence that he may be committed to a state institution”96. The Court then moves to test another attempt to show that the Due Process Clause implies a right to court-appointed counsel at government
89 Ibid. 90 Ibid. 91 Ibid, p. 307
92 K. M. Manuel, Alien’s Right to Counsel in Removal Proceedings: In Brief, Congressional Research Service, 17 March 2016, p. 11
93 Ibid, p. 12
94 880 F.3d 1122 (9th Cir. 2018) 95 Ibid., p. 20
expense outlining the necessity to satisfy the Mathews v. Eldrige test97 and, if satisfied, a judgment whether the rebuttable presumption against court-appointed counsel applies98. The court decided that the test has not been satisfied and effectively, for the first time ever ruled that children are capable of representing themselves in removal proceedings99. Despite the referral to a panel of 11 judges, no changes have been introduced. In C.J.L.G. v Barr, “noting that CJ will be represented by counsel in future administrative proceedings, the en banc court stated that it need not address his contention that appointment of counsel for minors in removal proceedings is constitutionally required”100. It is worth nothing that Judge Paez concurred and held that indigent children seeking asylum are entitled to the Fifth Amendment’s guaranty of due process and provision of appointed counsel in immigration proceedings101. However, one voice of a single judge does not defeat a prevailing indifference to fate of unaccompanied minors seeking asylum.
3.3.4. Necessity to appoint legal counsel
Unaccompanied minors during removal hearings are rarely left without any assistance. They can be represented by guardians ad litem (GALs), parents, other relatives or persons of good moral character who have a personal relationship with the child102. Additionally, by virtue of the TVPRA 2012 the authorities can appoint independent child advocates ensuring the best interests of the child are properly taken into account103. However, these persons are not legal professionals and do not always possess the thorough knowledge of immigration law and the ability to perform functions in the courtroom and prepare appropriate line of defence for the unaccompanied minor
97 Under Mathews v. Eldrige test (see. Mathews v. Eldrige, 424 US. at 335), there is a determination what proces is due by balancing (1) the private interest at stake, (2) the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional safeguards, and (3) the government’s interest, inclusing the burdens of any additional proces.
98 Ibid (n 94), p. 22 99 Ibid, p. 52
100 C.J.L.G. v Barr, No. 16-73801 (9th Cir. 2019) p. 4. 101 Ibid.
102 U.S. Department of Justice Executive Office for Immigration Review, Fact sheet: Who can represent
aliens in immigration proceedings, 2 October 2009
enabling him or her to obtain asylum104. Thus, they might be unable to satisfy the due process guarantees. As the Court noted in In Re Gault, minors require “the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings and to ascertain whether they have a defence and to prepare and submit it”105. Consequently, non-attorneys fail to “serve the accuracy-enhancing function in immigration court that the complexity and subjectivity of removal adjudication require”106. Furthermore, representation of an unaccompanied minor in removal proceedings requires advocacy. While the appointment of a GAL might be the first step in ensuring the child’s best interests’ consideration, “because the removal system doggedly eschews making best-interest determinations”107 a court should not be of an opinion that a GAL is skilled enough to represent a child’s legal position. Thus, a child-rights-based model points towards representation by a legal counsel “because the American legal system is adversarial, counsel fills an indispensable role in ensuring that individual claimants are represented and that the requisites of due process are met”108. Another important factor is that GALs “owe their primary duty not to the child on behalf of whom they advocate but to the court”109. Thus, there is no confidentiality in the child-GAL relationship, as it is between a lawyer and his client. Finally, it should be noted that the value of the right to legal representation depends not only on the scope, but also on the quality of it. Therefore, it is fundamental to ensure an unaccompanied minor receives the best quality of legal counsel available to ensure due process rights provision.
3.4. Interim conclusion
The absence of the right to appointed counsel “reflects the presumption that aliens in removal proceedings are sufficiently competent to raise cases for asylum”110. However, due to unaccompanied minors’ unique vulnerabilities, it is incomprehensible to
104 Ibid. (n 76), p. 150
105 Ibid, supra In re Gault, 387 U.S. 1, 36 (1967) 106 Ibid.
107 Ibid.
108 K. H. Federle, Lawyering in Juvenile Court: Lessons from a Civil Gideon Experiment, 37 Fordham Urb. L. J. 93 (2010), p. 110
109 ibid. p. 154 110 Ibid. (n 49) p. 750
conclude that they are capable of presenting their case on their own. Even though none of the international instruments by which the US is bound provides for explicit right to counsel in removal proceedings, their combined consideration strongly suggest the obligation of the state to provide legal aid111. The ICCPR prescribes non-discriminatory treatment of children112, separate judicial consideration of claims related to accused juveniles113, fair and public hearings for the accused114 and procedural requirements for the expulsion of aliens115. The crucial role plays the customary principle of non-refoulement, the prohibition of which, in cases of unaccompanied minors facing removal proceedings, “would be essentially meaningless in instances where a fair hearing with legal representation is not available”116. Finally, as explained above lack of appointed counsel for unaccompanied minors in removal proceedings violates their due process rights and effectively deprives them of chances to obtain refugee status117.
4. The United Kingdom and the unaccompanied minor’s right to legal
assistance
Succeeding the comprehensive outline of international standards constituting a basis for the legal analysis conducted in this thesis, an inquiry into US legal system was carried out. To reiterate, the findings in the first chapter pointed towards an indirect obligation to provide free legal assistance to unaccompanied minors seeking asylum stemming from applicable international law. As demonstrated above, in the US, there is no obligation of a State-founded counsel in removal proceedings concerning issuing the decision granting refugee status to an unaccompanied minor. However, it ensures State supervision of the process and adult assistance in administrative matters through the appointment of a GAL to every unaccompanied minor, as well as transfers the responsibility of ensuring due process rights are respected to immigration judges. Such 111 Ibid, p. 752 112 Art. 24(1) 113 Art. 10(2)(b) 114 Art. 14(1) 115 Art. 13 116 Ibid., (n 49), p. 754 117 Ibid., (n 73), p. 8
protection was declared insufficient to satisfy the Due Process Clause. Proceeding to the analysis of United Kingdom’s legal system it is necessary to bear in mind that those two systems differ in the status of ratification of the UNCRC, as well as participation in regional human rights systems. United Kingdom remains the member of the European Union, which carries significant implications in protection of asylum seekers, as well as a Party to the ECHR.
This chapter commences by the analysis of the relationship of United Kingdom and the UNCRC, followed by the outline of UK’s responsibilities stemming from other international instruments with a particular focus on European law. It is essential to acknowledge that the UK doesn’t participate fully in the Common European Asylum System and decided to opt out from some Directives regulating procedural rights and protections afforded to asylum seekers. After that, light will be shed on the specific national laws regulating provision of free legal assistance to unaccompanied minors in asylum procedure as a mechanism of ensuring access to justice. Through that analysis, a categorical right to free legal aid will be identified. Finally, an evaluation will be conducted to determine the UK’s compliance with its international obligations and the extent to which they provide a comprehensive protection system for unaccompanied minors seeking asylum.
There are three distinct legal systems within the UK, England and Wales, Scotland and Northern Ireland. The states have their own enforcement forces and court systems. The Welsh Assembly, Northern Ireland and Scottish Parliament have separate administrations responsible locally for provision of health, education and local authority children’s services. Nevertheless, the UK parliament retains the responsibility for immigration control and creation of immigration legislation applicable universally throughout the UK.
4.1. The United Kingdom and the UN Convention on the Rights of the Child
UK has signed and ratified the UNCRC in 1991 entering a general reservation to Article 22 of the Convention regarding entry, stay in and departure from the UK of children subject to immigration control as well as the acquisition and possession of
citizenship. The reservation presupposed a different treatment of that group of children. Predominantly, the UK does not directly incorporate international treaties into domestic law118. Rather, if the change of the law is required for the UK to comply with provisions of a particular treaty, the Government introduces national legislation giving effect to that treaty.119. The Westminster Government bears the responsibility for overall coordination of the UNCRC in the UK120. Even though the UNCRC is not directly incorporated, the principles enshrined in the Convention guide domestic law and practice and are often cited by courts during human rights law interpretation. In 2008 the UK removed its reservation to Article 22 and extended Convention protection to decisions involving children subject to immigration control giving proper effect to Article 2 of the UNCRC. Since the ratification of the UNCRC, implementation concentrated on policy and legislation initiatives including Children Act 1989, Children Act 2004 and Every Child Matters to name a few. The Ministry of State for Children and Families also extended assurances that efforts were in progress of spreading this commitment across Whitehall. Indeed, the recognition is growing rapidly. In the case of ZH (Tanzania) v Secretary of State for the Home Department121, the UK’s Supreme Court declared that Article 3 of the UNCRC is a binding rule of international law. Thereby, the emphasis has been switched from decision-making based on immigration law towards consideration of the best interests of the child. Later on, in the case of Zoumbas v Secretary of State for the Home Department122 it confirmed that even though the best interest of the child is not always ‘paramount’ consideration, it has to be viewed as a primary one123. Finally, apart from having the status of an international treaty legally binding on the UK, the UNCRC is to some extent directly applicable, as the ECtHR has taken note of the Convention while interpreting provisions of the ECHR, where it observed a broad consensus on the
118 The Human Rights Act 1998 incorporating ECHR is a significant exception to this rule.
119 Further information for the Joint Committee on Human Rights, UNCRC How legislation underpins
implementation in England, March 2010, para 6
120 Ibid., para 3 121 2011 UKSC 4 122 2013 UKSC 74
