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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Protected on Paper?

An analysis of Nordic country responses

to asylum-seeking children

UUI, Alm.del - 2017-18 - Bilag 122: Materiale ifbm. UNICEF´s foretræde for udvalget d. 20/3-18 UUI, Alm.del - 2017-18 - Bilag 122: Materiale ifbm. UNICEF´s foretræde for udvalget d. 20/3-18

Protected on Paper?

An analysis of Nordic country responses

to asylum-seeking children

UUI, Alm.del - 2017-18 - Bilag 122: Materiale ifbm. UNICEF´s foretræde for udvalget d. 20/3-18

THE UNICEF OFFICE OF RESEARCH – INNOCENTI

The Office of Research – Innocenti is UNICEF’s dedicated research centre. It undertakes

research on emerging or current issues in order to inform the strategic directions, policies

and programmes of UNICEF and its partners, shape global debates on child rights and

development, and inform the global research and policy agenda for all children, and

particularly for the most vulnerable.

Publications produced by the Office are contributions to a global debate on children and may

not necessarily reflect UNICEF policies or approaches.

The Office of Research – Innocenti receives financial support from the Government of Italy,

while funding for specific projects is also provided by other governments, international

institutions and private sources, including UNICEF National Committees.

This report has been peer reviewed both externally and within UNICEF.

The text has not been edited to official publication standards and UNICEF accepts no

responsibility for errors.

Extracts from this publication may be freely reproduced with due acknowledgement.

Requests to utilize larger portions or the full publication should be addressed to the

Communication Unit at: [email protected].

For readers wishing to cite this document, we suggest the following form:

Protected on

Paper? An analysis of Nordic country responses to asylum-seeking children.

UNICEF Office

of Research – Innocenti, Florence (2018).

Written by: Kevin Byrne and Claus Bech Hansen

Design and layout: Alessandro Mannocchi

Correspondence should be addressed to:

UNICEF Office of Research – Innocenti

Piazza SS. Annunziata, 12

50122 Florence, Italy

Tel: (+39) 055 20 330

Fax: (+39) 055 2033 220

[email protected]

www.unicef-irc.org

twitter: @UNICEFInnocenti

facebook.com/UnicefOfficeofResearchInnocenti

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Acknowledgements

This research project was developed through a broad consultation process and benefited

from the support, insights and expertise provided at strategic moments in its development by

many individuals. We wish to extend our most sincere appreciation to the UNICEF National

Committees of the Nordic countries for their generous contributions in terms of intellectual,

logistical and financial support to the UNICEF Office of Research – Innocenti since this project

began over a year ago. This research could not have been undertaken without the generous

financial support of the Swiss Committee for UNICEF, used to build our migration programme.

Bina D’Costa led this research project and supervised the preparation of the report. Thanks go

to Kevin Byrne and Claus Bech Hansen, who were the two main authors. Special thanks also

go to Louise Thivant in Geneva. We would also like thank the participants in our workshop,

External Review Meeting on Procedural Safeguards for Children on the Move, held in Geneva

on 14–15 December 2017, which brought together United Nations agencies, academics and

practitioners, who willingly shared their experiences and expertise. We would like to express

our gratitude to Vincent Chetail and Ton Liefaard, who served as the external reviewers for an

earlier draft. Thanks go to DLA Piper for its study in Norway, Sweden and Finland; Bruun &

Hjejle in Denmark; and Erna Blöndal for her work with DLA Piper UK in Iceland during Phase I

that provided crucial information for this analysis.

An incredible amount of work has been completed behind the scenes by our dedicated team

based in Florence. Thank you! We particularly acknowledge Claire Akehurst, Andrea Brilli,

Victor Cebotari, Michelle Godwin and Anita Knudsen for their much-needed support throughout

the research project. We are very grateful to Sarah Marchant for her editorial support and for

overseeing the production process. Many thanks to Iolanda Genovese for research support at

the Geneva workshop and during the drafting stages of this report.

Finally, we thank our colleagues in New York, particularly Danzhen You and Kalaya Winbaw, and

the communication and advocacy teams in Geneva and in Florence for their continued work in

promoting

all

children’s rights.

It is our sincere hope that this research will provide a crucial basis for continued advocacy and

dialogue and will ultimately lead to improvements to policy and laws to better protect children

on the migration pathway in the Nordic region and beyond.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Foreword

Children are increasingly visible among the growing number of migrants, refugees and

displaced people around the world. Today, 31 million of an estimated 244 million international

migrants worldwide are children. At the end of 2016, the United Nations High Commissioner

for Refugees (UNHCR) had almost 9 million child refugees under its mandate and a further 23

million children were internally displaced by conflict or natural disaster. Since 2015, increasing

numbers of children have made their way to Europe seeking protection and security.

Consequently, the rise in lodged asylum applications in Europe has created a demand for an

urgent public response. In this environment, the international community, including Europe’s

governments, are under pressure to rapidly adapt their policies and practices, to ensure the

safety and security of large numbers of often highly vulnerable children.

In September 2016, the United Nations General Assembly adopted the New York Declaration

for Refugees and Migrants. While not legally binding, the Declaration commits states to

‘fully protecting the human rights of all refugees and migrants, regardless of status’ and

to ‘protecting the rights of uprooted children’. The 193 UN Member States also committed to

negotiating two Global Compacts: a Global Compact on Refugees; and a Global Compact on

Safe, Regular and Orderly Migration.

In this context, the UNICEF Office of Research – Innocenti has collaborated with the National

Committees for UNICEF in Denmark, Finland, Iceland, Norway and Sweden in undertaking

research that contributes to this goal. This research has assessed how Nordic countries have

responded to the movement of asylum-seeking children who have entered the region since

2015, and has identified insights from comparison of practices across these countries.

While the region provides a range of experiences which are, in many ways, representative

of best practices globally, there are important gaps and lessons to be learnt by comparing

policies, institutions and practices. This report identifies a number of good practices and

lessons and provides concrete recommendations on what more can be done to protect and

integrate children and guarantee them opportunities for their future.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

As the international community comes together to strengthen governance procedures for

global migration and establish guidelines for sharing responsibility to safeguard refugees,

UNICEF has called on decision-makers to put children at the centre of their discussions.

Specifically, UNICEF asks that they embrace a six-point Agenda for Action, outlined in the

Global Compacts:

1. Protect uprooted children from exploitation and violence.

2. End the detention of refugee and migrant children by creating practical alternatives.

3. Keep families together and give children legal status.

4. Help uprooted children to stay in school and stay healthy.

5. Press for action on the causes that uproot children from their homes.

6. Combat xenophobia, discrimination and marginalization.

We now have a tremendously important opportunity to develop actionable commitments that

can ensure that refugee and migrant children receive the care and protection they need –

whether in their countries of origin, in transit, or in destination countries. I hope that the

analysis and findings presented in this report will help inform global and national discussions

on how states and the international community can protect refugee and migrant children,

and that it offers direction and guidance to all countries as they work towards adopting and

implementing the Global Compacts.

Sarah Cook

Director

UNICEF Office of Research – Innocenti

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Nordic National Committees’

Preface

Throughout the last decades, all the countries of the Nordic region have been rightly

recognized for their constant efforts to promote and protect the human rights of children.

Although child rights have strong foundations in all these States, the State Parties appear

to have failed to protect the basic human rights of children on the move.

A child, irrespective of her or his migration or asylum status, is first and foremost a child.

This means that all governments have a legal responsibility to ensure that no child is

discriminated against in terms of receiving second-tier protection or care arrangements,

insufficient health services or segregated educational services.

The Convention on the Rights of the Child provides all State Parties with an ideal roadmap for

the full inclusion, protection and development of all children. A more coherent adaptation

of the Convention cannot but lead to a more prosperous future for the generations to come,

where all children are first and foremost children.

It has been our pleasure to work alongside the UNICEF Office of Research – Innocenti to

produce this research to inform our advocacy strategies in the Nordic region. This research

will also contribute to a better understanding of asylum-seeking children’s protection and

rights, globally.

Ivar Stokkereit, Norway National Committee

Karin Ödquist Drackner, Sweden National Committee

Mirella Huttunen, Finland National Committee

Eva Bjarnadóttir, Iceland National Committee

Jakob Colville-Ebeling, Denmark National Committee

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Contents

Executive summary

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Background and context

1.1

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Background

. . . . . . . . . . . .

Background to the research

Purpose, objective and scope

Methodology

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.2

The Nordic context

. . . . . . . .

National contexts

Migration and asylum context

Child protection context

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2. Assessment of the national responses to asylum-seeking children

2.1

2.2

Assessment framework

. . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Assessment of the national responses

Ownership/leadership

Oversight

Access to justice

Child participation

Best interests of the child

The asylum process

. . .

Arrival and registration

Age assessment

Asylum application

Reception

Durable solutions

. . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.3

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.4

Education

. . . . . . . . . . . . . . . . . . . . . . . . . .

General context

Early childhood education

Basic education

Support services

Secondary/vocational education and training

. . . . . . . . . . . . . . . . . . . . . . .

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

2.5

Health

. . . . . . . . . . . . .

Medical and health care

Mental health

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.6

Child protection

. . . . . . . . . . . .

General context

Guardianship

Family contact and reunification

Detention

Missing children

Child trafficking

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. Conclusion and recommendations

3.1

3.2

3.3

3.4

Conclusion

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Overall recommendations of the UNICEF Agenda for Action

General recommendations for all Nordic countries

Country-specific recommendations

. . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bibliography

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Annex 1. Research protocol: Ethical safeguards

. . . . . . . . . . . . .

Annex 2. Research framework: A child rights-based approach

. . .

Annex 3. Guidelines incorporated in the good practice checklist

Annex 4. Key respondents

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . .

103

106

Photo credits

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

108

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Executive summary

Background and context

In keeping with their long tradition of openness to refugees, the Nordic States – Denmark,

Finland, Iceland, Norway and Sweden – have, since 2015, accepted a large number of asylum-

seeking children compared to other European countries. This has challenged their well-

established protection systems and led to national governments clamping down on migration,

and protection law and regulation, leaving thousands of asylum-seeking children without the

care and services to which they are entitled.

This UNICEF Office of Research – Innocenti research project was commissioned by the

UNICEF National Committees in the Nordic region. The project’s overarching aim is to

examine to what extent the rights of asylum-seeking children are respected in the Nordic

countries, and to make concrete recommendations as to how to strengthen and extend legal,

policy and practice frameworks to ensure the full realization and protection of child asylum

seekers’ rights and entitlements. Its specific objective is to review national legislation and its

implementation in the context of the United Nations Convention on the Rights of the Child,

both to highlight good practices and to provide practical insights to the Nordic governments

on how to ensure the adequate protection of asylum-seeking children in line with national,

regional and international standards of good practice. It is intended that the findings of the

research will shape the advocacy work of the Nordic National Committees and inform their

engagement with their respective governments on what standards and procedural safeguards

must be adopted, adapted and/or implemented, to ensure that the rights of asylum-seeking

children are respected in full.

The research embraced a critical, holistic and multifaceted approach. Phase I consisted of a

legal study of the procedural safeguards in the Nordic countries, which showed that national

legislation in the Nordic countries generally aligns with the Convention and with other

international treaties. Phase II adopted a dual focus, examining both the interpretation and

implementation of existing laws and regulations on the ground, and the measurement of

practice against international good practice standards.

Primary data were collected through semi-structured interviews with key respondents in the

region. Secondary data were drawn from a review of the literature on refugees and migrants

in Europe and in the Nordic states, and from European databases, research and studies.

Data obtained from both sources were used to assess national responses to asylum-seeking

children by measuring each country’s activities in five child-related domains: general context;

asylum procedures; education; health; and child protection, against international best practice

standards.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Summary of findings

Although the social and political environments of the five Nordic states are generally

respectful towards children’s rights, national child protection agencies have failed to take a

strong lead in relation to migrant and asylum-seeking children. National asylum agencies and

their agents have generally tried to adopt a child-focused approach, but child rights are not

their primary remit, and national responses have been framed in a context where a child’s

legal status significantly determines her or his access to entitlements. As a result, national

responses in the Nordic region do not comply with the Committee on the Rights of the Child

recommendations that

every child, whatever her or his migration or asylum status, is first

and foremost a child with full entitlement to all of the rights enshrined in the Convention on

the Rights of the Child; and that all governments and duty bearers have a moral and legal

responsibility to realize those rights for all children in their care.

The current division of responsibilities between asylum and child protection agencies appears

to leave too many asylum-seeking children reliant on second-rate protection mechanisms that

do not sufficiently and satisfactorily comply with the standards laid down by the Convention

on the Rights of the Child and enables continuation of a context where lower standards for

asylum-seeking children are tolerated.

There is a clear tendency in all five states to give migration law precedence over the

Convention on the Rights of the Child, even in those countries where the Convention has been

incorporated into national law. States should also consider strengthening their legislative and

policy frameworks by signing and ratifying the International Convention on the Protection of

the Rights of All Migrant Workers and Members of Their Families, and thus encourage other

European states to follow suit. All five Nordic states should also consider seriously committing

fully to the EU migration acquis, which establishes a practical framework for the development

across Europe of common policies, practices and standards for asylum-seeking children.

Although the Nordic states have a strong culture and institutional framework of gender equality,

the analysis found no documented evidence of gender awareness being incorporated in

national responses to asylum-seeking children. Nor did the research find sufficient justification

for the variation in the levels and types of protection offered to children above and below the

age of 15.

To ensure children’s safety, security and stability, safeguards related to the asylum process

should be incorporated in law rather than in rules and regulations. Safeguards at regulation

and practice levels are essential throughout the asylum process, but their stipulation only

at these levels allows too much room for wide interpretation and lax implementation, often

to children’s detriment. Much stronger safeguards are required at every stage of the asylum

process to allow a child legal challenge and judicial review of decisions. Age assessment and

forced return are two specific stages of the asylum process that demand much greater scrutiny,

but in fact the whole concept of ‘manifestly unnecessary’ must be strongly challenged when

it comes to decisions that affect children’s lives.

Committee on the Rights of the Child,

Report of the 2012 Day of General Discussion on the Rights of All Children

in the Context of International Migration,

Geneva, 28 September 2012.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

The ‘best interests of the child’ must be the primary consideration in any and all decisions that

affect a child, and the core principle underpinning safeguards in all countries and at all stages

of the asylum process. It is worrying to note the great variation in the quality of understanding,

interpretation and implementation of the principle within and between the Nordic states.

While some best interests determinations (BIDs) genuinely aim to plan holistically for a child’s

welfare and protection, key respondents indicated that in practice, the quality of BIDs is mixed

and their impact on decision-making variable. All five states urgently need to establish clear

formats, standards and quality control mechanisms to ensure that a child’s best interests do

inform and influence every stage of the asylum process.

Guardianship is a key safeguarding mechanism in the Nordic states, but there is no agreement

on models or standards and practical implementation is inconsistent. This is an area that

could benefit from regional agreement on standards and a common code of good practice

to ensure that: (i) both guardianship and legal representation are available to every child;

(ii) there is an explicit and adequate firewall between guardians and asylum services; and

(iii) there are clear guidelines in place relating to confidentiality and to disputes or differences

between guardian and child, the child’s right to speak for herself or himself, and the child’s

right to complain about her or his guardian. National child protection agencies should also

establish standards, and clear procedures, for the vetting, recruitment, management, support,

supervision, training and resourcing of guardians.

The asylum-seeking child must be given better opportunities to be heard. The Nordic states

have a deserved reputation for respecting children’s right to be heard on matters that affect

them and asylum procedures reflect this. In practice, however, an asylum-seeking child – and

especially accompanied children - is given only limited opportunities to be heard via her or his

representative and even fewer opportunities to be heard directly. It is the needs of the asylum

system that generally determine the timing and agenda of a child’s participation, rather than

her or his own concerns, and so the child’s input tends to be sporadic, indirect and not always

heard at key points in the process. There also seems to be a lot of leeway in the asylum process

for adults to deny children the opportunity to speak – without consultation or justification.

Strengthening, extending and realizing the right of every child to have her or his opinions

noted, and acted upon, throughout the asylum process must be central to any strategy aiming

to strengthen implementation of the ‘best interests’ principle.

Generally, the Nordic states’ education services have coped with the arrival of refugee children

since 2015, and their national models of inclusive education have proved fit for purpose.

Certain legal and administrative barriers can, however, unnecessarily delay a child’s entry into

mainstream education. Strengthening schools’ capacity to provide the additional resources,

teaching and support services needed to overcome language barriers and other obstacles

that hinder asylum-seeking children’s access to education would seem to be more effective

and cost-efficient than delaying their enrolment by trying to address such issues outside the

mainstream education system. This is particularly the case for early childhood education

(ECE) programmes, but the same approach also applies to basic, secondary and vocational

education. Resources allocated to the provision of education services in reception centres

should be largely reassigned to the expansion of mainstream schools’ support services to

speed up asylum-seeking children’s integration in mainstream education.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Asylum-seeking children can generally access any medical treatment they require, although

local health care services can be reluctant to offer such care. Asylum seekers are not generally

integrated into national health systems, so negotiating access to health care services can

be complex. The full extent of health care services available to asylum-seeking families

varies between the Nordic states, and even among municipalities within one state, so their

entitlements are not always clear to either patient or practitioner. The Nordic states must

define more clearly the package of services available to asylum-seeking mothers and children,

and make this information available to them and to practitioners at the local level. Ideally,

this package should be equal to the package available to all mothers and children in the

country, but at a minimum it should include free access to national services for mother and

child health, prevention and treatment of infectious diseases including HIV/AIDS, vaccination,

adolescent health, dental care and mental health, in addition to emergency medical treatment

and care. Research and experience indicate that the mental health of asylum-seeking children

is severely affected by uncertainty about their legal status and the constraints of their living

conditions. Strategies are urgently required to address this serious concern and to ensure a

more positive living environment.

Research is urgently needed in all the Nordic countries to establish the real situation of detained

children. It is strongly recommended that the UNICEF National Committees undertake national

campaigns to end the use of immigration detention in any form for children, and to promote

investment in alternatives to detention. States must also urgently develop a common regional

approach to the tracing and recovery of children who go missing from the asylum system.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

1. Background and context

1.1 Background

Background to the research

Since 2015, almost 1 million children have arrived in Europe seeking refuge from war, conflict

and poverty, and although numbers dropped in 2017, children and their families continue to

risk hardship, violence and abuse to find a better life in Europe.

The countries of the Nordic

region – Denmark, Finland, Iceland, Norway and Sweden – have accepted a large number of

asylum-seeking children since 2015, compared to many other European states.

Sweden came

first, Norway fourth, Finland eighth and Denmark ninth out of 29 European countries ranked

by how many unaccompanied and separated asylum-seeking children (UASC) they accepted

in 2015 (see

Table 1).

Table 1. Unaccompanied minors seeking asylum in Europe

Country

2008

Sweden

Germany

Austria

Norway

Italy

Netherlands

United Kingdom

Finland

Denmark

All 28 EU countries

1,510

765

695

1,045

575

725

4,285

705

300

11,700

2010

2,395

1,950

600

220

305

700

1,715

330

410

10,620

Year

2012

3,580

2,095

1,375

495

970

380

1,125

165

355

12,545

2014

7,050

4,400

1,975

780

2,505

960

1,860

195

820

23,075

2015

35,250

14,440

8,275

5,050

4,070

3,855

3,045

3,014

2,125

88,265

Source:

Adapted from Çelikaksoy, Aycan, and Eskil Wadensjö, ‘Mapping Experiences and Research about

Unaccompanied Refugee Minors in Sweden and Other Countries’, IZA Discussion Paper No. 10143,

Institute of Labor Economics, Stockholm, August 2016.

UNHCR, Regional Refugee and Migrant Response Plan (RMRP) for Europe, January–September 2017, available at

<https://data2.unhcr.org/en/documents/download/61150>, accessed December 2017.

Eurostat, ‘Asylum and first time asylum applicants – annual aggregated data (rounded)’, available at <http://

ec.europa.eu/eurostat/tgm/table.do?tab=table&init=1&language=en&pcode=tps00191&plugin=1>,

accessed

2 February 2018; and Çelikaksoy, Aycan, and Eskil Wadensjö, ‘Mapping Experiences and Research about

Unaccompanied Refugee Minors in Sweden and Other Countries’, IZA Discussion Paper No. 10143, Institute of

Labor Economics, Stockholm, August 2016.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Despite the Nordic region’s long tradition of hospitality to refugees and migrants, and its well-

developed asylum and child protection systems, children’s services in the Nordic countries

were no more prepared for the large numbers of arrivals, or the protection challenges they had

to address, than those of any other European state. The result of the so-called ‘refugee crisis’

was that child protection systems in the Nordic countries neglected their responsibilities to

these vulnerable children and instead left their care and protection to asylum authorities,

which found themselves unable to provide the care and protection to which all children are

entitled. At the same time, national governments tightened migration laws and regulations.

For instance, Sweden introduced in 2016 – through a ‘temporary law’ initially criticized by

Migrationsverket,

the Swedish Migration Agency – short-lived measures that were at the

absolute minimum of European Union (EU) standards.

The Dublin procedure,

return policies

and bleak prospects of achieving a residence permit appear to have slowed the movement of

asylum seekers to the Nordic region, despite the arrival of 200,000 refugees in 2017 alone.

While the quality of the services and facilities offered to asylum-seeking children by the Nordic

states has been rightly acknowledged,

the ‘Scandinavian model’ is sometimes presented

without much discussion of contextual factors. Past studies have shown that there is a lot to

learn from any examination of policy and practice concerning asylum-seeking children in the

Nordic region – provided the gaps, strains and challenges that migration, asylum and social

services continue to face in meeting their responsibilities to a great many children who have

arrived in the region since 2015, are recognized.

For a critique of the language used, see: D’Costa, Bina, and Emilia Toczydlowska, ‘Not Refugee Children, Not

Migrant Children, But Children First: Lack of a systematic and integrated approach’, Innocenti Research Brief,

UNICEF Office of Research – Innocenti, Florence, 2017.

Interview with the Swedish Migration Agency, Stockholm, 25 October 2017; and Riksdagsförvaltningen,

Lag (2016:752) om tillfälliga begränsningar av möjligheten att få uppehållstillstånd i Sverige, Svensk

författningssamling 2016:2016:752, t.o.m. SFS 2017:352, Riksdagen, Stockholm, 2016, available at <www.

riksdagen.se/sv/dokument-lagar/dokument/svensk-forfattningssamling/lag-2016752-om-tillfalliga-begransningar-

av_sfs-2016-752>,

accessed 25 January 2018.

The Dublin Procedure: Proposal for a Regulation of the European Parliament and of the Council establishing the criteria

and mechanisms for determining the member state responsible for examining an application for international protection

lodged in one of the member states by a third-country national or a stateless person. ‘Access to European Union Law’

available at

http://eur-lex.europa.eu/legal-content/EN/HIS/?uri=CELEX:32013R0604,

accessed 14 February 2018.

Eurostat,

http://ec.europa.eu/eurostat/data/database?node_code=tps00191,

accessed 28 January 2018.

See, for instance, the presentation by the Swedish guardianship service in Directorate-General for Justice and

Consumers, European Commission,

The Protection of Children in Migration: Report on the 10th European Forum

on the rights of the child,

European Commission, Brussels, May 2017; and case studies from Finland, Norway

and Sweden in Directorate General for Migration and Home Affairs, European Commission,

Success Stories from

the Migration and Home Affairs Funds: Solidarity and Management of Migration Flows

(2007-2013), European

Commission, Brussels, 15 April 2016.

Research has been conducted on aspects of the asylum systems in the Nordic countries, e.g. provision of services,

rights and integration, as well as on refugee and migrant wealth and well-being, but relatively few studies

have examined the systems more holistically. Exceptions include: Brendler-Lindquist, Maria, and Anders Hjern,

Reception of Asylum Seeking and Refugee Children in the Nordic Countries: The Swedish report,

Nordic Network

for Research on Refugee Children, Stockholm, 2010; Jessen, Tatiana, and Edith Montgomery,

Reception of Asylum

Seeking and Refugee Children in the Nordic Countries: The Danish report,

Nordic Network for Research on

Refugee Children, Copenhagen, 2010; Júlíusdóttir, Þórunn, and Geir Gunnlaugsson,

Iceland: A Nordic Comparison

of Reception of Asylum Seeking and Refugee Children in a Public Health Perspective,

Nordic Network for

Research on Refugee Children, Reykjavik, 2010; de Wal Pastoor, Lutine, Ketil Eide and Leoul Mekonen,

Reception

of Asylum Seeking and Refugee Children in the Nordic Countries: The Norwegian report,

Nordic Network for

Research on Refugee Children, Oslo, 2010. All four reports are available at: <https://medicine.gu.se/avdelningar/

samhallsmedicin_folkhalsa/Socialmedicin-och-epidemiologi/forskning/jamlikhet-i-halsa/migration-och-halsa/

nordic-network-for-research-on-refugee-children/publikationer>,

accessed 2 February 2018.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Purpose, objective and scope

In 2016, the UNICEF National Committees in the Nordic region entered into a partnership with

the UNICEF Office of Research – Innocenti to conduct such an analysis through joint research

on the procedural safeguards for asylum-seeking children in the five Nordic countries –

Denmark, Finland, Iceland, Norway and Sweden. The purpose of this research is to examine

to what extent the rights of asylum-seeking children are respected in these countries, and

to make concrete recommendations as to how to strengthen and extend legal, policy and

practice frameworks to ensure the full realization and protection of child asylum seekers’

rights and entitlements. Since all migrant children in the Nordic region are dealt with under

asylum legislation, this report aims to shape how the Nordic National Committees advocate

for the adoption and implementation of standards and procedural safeguards that will ensure

that the rights of all migrant, refugee and asylum-seeking children are respected in full.

As this research aims to support the Nordic states to develop policy priorities and identify the

optimal means by which to fulfil their responsibilities to protect the rights of all children, the

research population includes accompanied and unaccompanied children, and both those who

are successful in applying for asylum and those who are not, as well as those who are awaiting

a decision on their asylum application. While recognizing the challenges that national and local

authorities continue to face because of the ongoing arrival of asylum-seeking children in the

Nordic region, the main focus of the research

is on the capacity of the Nordic countries’

institutional frameworks to respond over the

The specific objective laid down for

medium to long term, rather than during the

this research is to review national

emergency phase.

legislation and its implementation

The research adopted a critical, holistic and

multifaceted approach. Rather than comment

on specific models of good practice, it set out

to critique and compare the overall framework

of protection for asylum-seeking children in

each of the five countries, to provide concrete

and practical recommendations on how to

strengthen children’s protective environment

at the national level and extend this by means

of regional cooperation.

in the context of the United Nations

Convention on the Rights of the Child,

both to highlight good practices and

to provide practical recommendations

to the Nordic governments, and to

the region as a whole, on how to

ensure the adequate protection of

asylum-seeking children in line with

international standards. The full list

of guidelines, good practice guides

and other documents drawn on in this

report is detailed in Annex 3.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Methodology

Phase I of the research consisted of a legal study of the procedural safeguards in the Nordic

countries, which was undertaken pro bono by DLA Piper offices in Finland, Norway and

Sweden, and DLA Piper UK and Erna Blöndal in Iceland by Bruun & Hjejle in Denmark, between

February and August 2017. Each country assessment includes analyses of: the legal basis for

the appointment of a legal guardian and/or advisor; the assignment of interpreters; entitlement

to health and education services; child participation in the asylum process; family tracing; best

interests determination (BID); and age assessment.

The legal analysts worked within the framework of a common questionnaire designed by

the UNICEF Office of Research – Innocenti. Although the country assessments inevitably varied

in emphasis, the research successfully highlighted key legislative and policy gaps and identified

good practices as well as strategic responses that require more in-depth examination. The

legal analysis shows that national legislation in the Nordic countries generally aligns with the

Convention on the Rights of the Child and with other international treaties, and that national

institutions and agencies aim to adopt a rights-based response to asylum-seeking children.

The legal analysts’ findings provided a solid basis for the development and refinement of

Phase II of the research, which moved towards a more overtly child rights-based approach

and adopted a dual focus to examine both the interpretation and implementation of existing

laws and regulations on the ground, and the measurement of practice against international

standards.

The UNICEF Office of Reseach – Innocenti contracted two senior consultants for Phase II – one

with expertise in child migration, and the other a Nordic countries’ specialist. In October 2017, the

team submitted a research protocol developed

in line with the UNICEF Procedure for Ethical

Standards,

along with an outline of the final

In line with Joint general comment

report. Phase II of the research encompassed:

No. 3 (2017) of the Committee on

a comparative analysis of the Phase I data;

the Protection of the Rights of All

Migrant Workers and Members

a desk review of the relevant literature; and

of Their Families, and No. 22

a three-week mission to the Nordic countries,

(2017) of the Committee on the

which included visits to reception centres

Rights of the Child on the general

principles regarding the human

and semi-structured interviews with 29 key

rights of children in the context

stakeholders, ranging from representatives

of international migration, this

of national and international agencies, law

report recommends strongly that

enforcement agencies and international non-

both Conventions are rapidly

integrated by the governments of

governmental organizations (NGOs), to local

the Nordic states in their national

practitioners, such as refugee lawyers.

migration-related laws, policies

Unless otherwise specified, the information on

and practices.

migration practices in the countries has been

drawn from both primary and secondary data.

See Annex 1.

See Annex 4 for full list of key respondents.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

It was crucial to conduct the examination through a child rights lens. To enable this, the team

adopted an analytical framework

that translates the underlying principles of the Convention

on the Rights of the Child into four ideal response characteristics: child-centred, equivalent,

inclusive, and participative. The existing checklist of good practice indicators that underpins

the analytical framework was expanded, and the indicators divided across five domains –

general context, asylum process, education, health, and child protection – to form the

framework in which to assess national responses across the Nordic region. (The research

framework is outlined in more detail in Annex 2.) Child participation was envisaged as an

important element of the original research plan and the initial research protocol proposed a

methodology that would adequately address the related ethical issues. All parties recognized

the added vulnerability of children in the asylum process, who will usually have participated

– willingly or not – in a series of mandatory interviews and are thus likely to have a somewhat

sceptical view of ‘interviews’. The original protocol recommended conducting interviews and/

or focus group discussions just with older children, and then only in settings and involving

facilitators already familiar to them. When this proved difficult to arrange, the research focus

shifted to a more intense review of children’s voices in the existing research, complemented

by informal discussions with young people via existing feedback mechanisms.

Adapted from a framework developed by Kevin Byrne as a contribution to

Refugee Children and Minors in

Europe: The role and responsibilities of local and regional authorities,

adopted by the Current Affairs Committee,

Congress of Local and Regional Authorities, Council of Europe on 18 October 2017. The final report will be

adopted on 27 March 2018 at the 34th plenary session of the Congress of Local and Regional Authorities in

Strasbourg.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

1.2 The Nordic context

National contexts

All five Nordic states are well-established parliamentary democracies and high-income

economies. The

Human Development Report 2016

ranked Norway first out of 188 countries,

Denmark fifth, Iceland ninth, Sweden fourteenth and Finland twenty-third.

All five countries

have ratified the Convention on the Rights of the Child. Denmark and Sweden have yet to fully

incorporate the Convention into national legislation,

but the Convention does not clearly

trump national asylum and migration law in any of the Nordic countries. Only Denmark and

Finland have ratified the Optional Protocol to the Convention on the Rights of the Child on

a communications procedure. This allows the Committee on the Rights of the Child to hear

complaints that a child’s rights have been violated and so could provide asylum-seeking

children with an independent complaints procedure.

All five Nordic states have ratified the United Nations Convention relating to the Status of Refugees

(1951 Convention) and other relevant international treaties, but in common with most other

European states, none have ratified the International Convention on the Protection of the Rights

of All Migrant Workers and Members of Their Families.

This is the main international human

rights instrument to respond to the specific protection needs of migrant workers and their families,

including those in an irregular situation. Another such instrument is the European Convention on

the Legal Status of Migrant Workers, which has been ratified in the Nordic region only by Sweden.

Denmark, Finland and Sweden are member countries of the EU and through ratification of the

Treaty of Lisbon have committed themselves to promote, protect and fulfil the rights of the

child in all relevant internal and external policies and actions.

Iceland and Norway remain

outside the EU but are full members of the European Economic Area and comply with EU

law, policy and directives on children and migration. Although it is an EU member country,

Denmark has adopted a special position in relation to EU asylum, immigration and judicial

laws: Denmark does not have to take on board any such measures unless they build upon the

Schengen Agreement, in which case it has six months to decide whether to incorporate the

measure(s) into Danish law.

United Nations Development Programme,

Human Development Report 2016: Human development for everyone,

UNDP, New York, 2016.

The Swedish government is still in the process of incorporating the Convention on the Rights of the Child into

national legislation and has set itself the deadline of 2020 to do so. See Beirne, H., and P. Clewett, ‘Sweden.

Entitlements for refugee and migrant children’ in Byrne, Kevin, et al.,

The Legal Entitlements of Refugee and

Migrant Children in 33 European Countries,

UNICEF, Geneva (unpublished paper).

Albania, Bosnia, Serbia and Turkey have ratified the International Convention on the Protection of the Rights of

All Migrant Workers and Members of Their Families and Montenegro has signed it. See United Nations Treaty

Collection, ‘Chapter IV. Human Rights. 13. International Convention on the Protection of the Rights of All Migrant

Workers and Members of Their Families’, <https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_

no=IV-13&chapter=4&lang=en>,

accessed 2 February 2018.

Only France, Italy, the Netherlands, Portugal, Spain and Sweden have ratified the European Convention on the

Legal Status of Migrant Workers. For a full list of relevant international and regional conventions ratified by EU

member states, see D’Auchamp, Marie, et al.,

Rights of Migrant Workers in Europe,

Office of the United Nations

High Commissioner for Human Rights, Geneva, 2011, Annex II.

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community,

signed at Lisbon, 13 December 2007, Official Journal of the European Union C 306/1, 17 December 2007, available

at <http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12007L%2FTXT>, accessed 3 February 2018.

Refugee Council, ‘Refugee Council briefing on the common European asylum system’, London, March 2004.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Migration and asylum context

The Nordic countries have a long history of acceptance of refugees and asylum seekers. This,

combined with their high-income status, has placed them among the top-rated destination

countries for asylum seekers, with consequent challenges for national asylum and social

services in the region. The Nordic states have been particularly welcoming to refugee and

migrant children, and in all five countries unaccompanied children are processed through

the asylum system.

Research shows that Denmark, Finland, Iceland, Norway and Sweden

accepted 45,765 unaccompanied children in 2015, out of a total of 88,250 unaccompanied

children accepted across the EU.

The highest number was registered in Sweden: 35,250

unaccompanied children, or 40 per cent of all those registered in the EU.

Eurostat figures

confirm this trend over many years

(see Tables 2 and 3).

Table 2. Total number of first time child asylum applicants in the Nordic region

and other countries in Europe, 2008–2016

GEO/TIME

Denmark

Finland

France

Germany

Greece

Iceland

Italy

Norway

Spain

Sweden

Total

2008

665

n/a

6,605

n/a

570

3,250

n/a

6,245

7,680

25,015

2009

1,150

n/a

9,375

9,325

n/a

1,250

4,450

n/a

6,595

7,165

39,310

2010

1,495

n/a

11,550

15,425

n/a

2,085

2,465

375

10,595

4,725

48,715

2011

1,110

n/a

12,160

16,610

555

n/a

3,110

2,210

445

9,765

5,415

51,380

2012

1,595

780

13,415

24,330

510

n/a

2,020

2,340

435

14,330

5,445

65,200

2013

2,055

715

14,865

38,705

1,015

n/a

2,185

2,645

520

15,205

5,715

83,625

2014

2,995

810

13,935

54,910

1,300

n/a

4,345

2,340

1,140

22,075

6,855

110,705

2015

6,295

7,590

13,590

137,415

2,425

n/a

7,130

10,295

3,720

69,130

8,115

265,705

2016

2,390

1,705

15,240

261,315

19,635

270

11,080

1,225

3,710

9,385

9,320

335,275

2017

1,095

1,225

16,020

89,175

16,615

150

15,505

1,055

6,085

7,350

6,105

160,380

Source:

Eurostat, <http://ec.europa.eu/eurostat/data/database?node_code=tps00191>, accessed 28 January 2018.

This is different to the position of other countries, like Italy, which have migration laws that protect UASC

independently of migratory status. United Nations Children’s Fund,

Beyond Borders: How to make the global

compacts on migration and refugees work for uprooted children,

UNICEF, New York, December 2017, p. 45.

See Orange, Richard, ‘How to Care for Child Refugees: Lessons from Nordic countries’,

The Guardian,

London,

24 May 2017, <www.theguardian.com/social-care-network/2017/may/24/child-refugees-nordic-countries>, accessed

October 2017. For a discussion of the implications, see also Carlqvist, Ingrid, ‘“Refugee Children” Invade Sweden’,

Gatestone Institute, 23 July 2015, <www.gatestoneinstitute.org/6190/sweden-refugee-children>, accessed October

2017.

Eurostat, ‘Almost 90 000 unaccompanied minors among asylum seekers registered in the EU in 2015’, Press

release, 2 May 2016, available at <http://ec.europa.eu/eurostat/documents/2995521/7244677/3-02052016-AP-EN.

pdf/>,

accessed 3 February 2018.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Table 3. Asylum applicants considered UASC, 2008–2016

GEO/TIME

Denmark

Finland

France

Germany

Greece

Iceland

Italy

Spain

Sweden

United Kingdom

Norway

2008

300

705

410

765

295

575

1,510

4,285

1,045

2009

520

535

445

1,305

415

2,250

2,990

1,820

2010

410

315

610

1,950

145

305

2,395

1,715

630

2011

270

150

595

2,125

825

2,655

1,395

635

2012

355

165

490

2,095

970

3,575

1,125

705

2013

350

160

365

2,485

325

805

3,850

1,265

670

2014

815

195

270

4,400

440

2,505

7,045

1,945

940

2015

2,125

2,535

320

22,255

420

4,070

34,295

3,255

4,790

2016

1,185

370

475

35,935

2,350

6,020

2,160

3,175

270

Source:

Ibid. The number of UASC applications has not yet been published by Eurostat for 2017. In November 2017,

UNHCR recorded the arrival of more than 15,000 UASC in Italy: UNHCR,

Europe Monthly Report,

November 2017, 1,

<https://data2.unhcr.org/en/documents/download/61424>.

Despite the Nordic region’s experience of coping with refugee arrivals, the size and scale of

movement in 2015 placed considerable strain on national asylum and protection services,

and according to stakeholders in the

field, systems across the Nordic countries

experienced a general collapse.

The most

Good Practice 1: Iceland

immediate result was the failure to meet

In Iceland, UASC have their asylum

the minimum standards for services set by

interviews in the Barnahus, originally

national governments and implemented

developed as a child-friendly,

by a range of key stakeholders, the

interdisciplinary and multi-agency centre

where various professionals work under

national

immigration

agencies

the same roof to investigate suspected

particular. The problems resembled

cases of child sexual abuse and to provide

those experienced by other high-intake

appropriate support for child survivors

countries such as Germany and Greece.

of abuse.

The Asylum Procedures Directive sets

Professionals with child competencies

standards among EU member countries

such as psychologists and others conduct

the interview in a child-friendly room. The

for the processing of asylum claims,

interview is recorded and transmitted to

including an upper limit of six months

a screen in an adjacent room where the

to process a claim, yet these are still not

migration authorities can view it in real

time. They may ask questions alongside

being met. In particular, it is unclear the

the interviewers via a remote microphone.

extent to which vulnerable applicants such

Source: Interviews with the Icelandic Ombudsman for Children,

as unaccompanied children have been

2017, and the Icelandic Directorate of Immigration, 2017.

consistently prioritized in accordance with

article 31(7[b]); there has often been a lack

This anecdotal evidence was repeated over and over again by key stakeholders in all five Nordic countries during

the interview mission, which took place from 23 October to 10 November 2017.

Howden, Daniel, and Apostolis Fotiadis, ‘The Refugee Archipelago: The inside story of what went wrong in

Greece’,

News Deeply: Refugees Deeply,

6 March 2017, <www.newsdeeply.com/refugees/articles/2017/03/06/

the-refugee-archipelago-the-inside-story-of-what-went-wrong-in-greece>,

accessed 8 January 2018; United

Nations Children’s Fund Germany and Bundesfachverband unbegleitete minderjährige Flüchtlinge,

Factfinding zur

Situation von Kindern und Jugendlichen in Erstaufnahmeeinrichtungen und Notunterkünften,

UNICEF Germany,

Cologne, February 2016, p. 1.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

of appropriate housing and more homes could not be constructed at the required pace;

cases

were reported of unaccompanied children ‘forgotten’ in reception centres in Iceland;

and it

was reported that in Sweden haphazard age assessments had produced erroneous results.

The high number of asylum seekers lodging applications in the Nordic countries has resulted

in a backlash on other levels too. As at 31 January 2018, Denmark upholds its refusal to

cooperate with the EU emergency relocation mechanism, which aims to relieve the strain

on services in Greece and Italy, and to relocate asylum seekers in clear need of protection.

Sweden tightened its asylum and migration regulations to meet only the absolute minimum

standards for the EU by passing its ‘temporary law’ in 2016, which was initially considered

by observers to be outright hostile to children.

Maahanmuuttovirasto Migrationsverket,

the

Finnish Immigration Service, has become far stricter in evaluating the one-year temporary

permits given to UASC on compassionate grounds to those who have been denied asylum,

putting older children at real risk of being deported as soon as they reach the age of 18.

See, for example, Ombudsman for Children in Norway,

The UN Convention on the Rights of the Child.

Supplementary report – Norway,

Oslo, May 2017, pp. 48–49.

Interview with the Ombudsman for Children, Reykjavik, 10 November 2017.

Migrationsverket, ‘Analysrapport: Tematisk kvalitetsuppföljning av åldersbedömning i samband med beslut om

uppehållstillstånd’, Stockholm, 28 November 2016, pp. 7–8.

European Commission, ‘Member States’ Support to Emergency Relocation Mechanism (As of 31 January 2018)’,

Press material, 31 January 2018, available at <https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-

we-do/policies/european-agenda-migration/press-material/docs/state_of_play_-_relocation_en.pdf>,

accessed 3

February 2018.

Interview with the Swedish Refugee Advice Centre, Stockholm, 24 October 2017.

Interviews with the Espoo Reception Centre, Espoo, 30 October 2017, and the Central Union for Child Welfare,

Helsinki, 26 October 2017.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

Child protection context

The Nordic region is renowned for its use of the Barnahus (children’s house) model, originally

developed in Iceland, to work with survivors of abuse or violence. The Barnahus is a child-

friendly, interdisciplinary and multi-agency centre where various professionals work under

the same roof to investigate suspected cases of child sexual abuse and to provide appropriate

support for child survivors of abuse. The aim is to avoid subjecting a child to repeated

interviews by many agencies in multiple locations, including the courtroom, as research has

shown that this can be very traumatic for the child. Using the child-friendly environment of

the Barnahus for investigative interviews reduces the anxiety level of a child, which in turn is

crucial for successfully eliciting the child’s disclosure.

Barnahus Iceland has inspired the establishment of around 50 such centres across the

Nordic countries during recent years. All of the Nordic states – except Finland – apply this

approach, although the actual models used vary. Norway’s Barnahus facilities are run by

central government, for example, while regional or local authorities operate those in Denmark

and Sweden. The model is recommended as good practice by Council of Europe standards

and has been promoted by the monitoring body of the Council of Europe Convention on the

Protection of Children against Sexual Exploitation and Sexual Abuse (Lanzarote Convention).

In Iceland, asylum interviews for UASC are held in Barnahus centres, and there is clearly scope

for the other Nordic countries to adapt the Barnahus model to facilitate more effective and

child-friendly engagement between child asylum seekers and national asylum systems.

A 2011 UNICEF Office of Research – Innocenti analysis found that in each of the Nordic countries

the responsibility for policy planning and operational tasks related to child protection is shared

among a plethora of institutions.

Matters concerning asylum-seeking children at that time fell

under the mandates of various ministries, with multiple institutions and authorities involved

in their implementation. This seems to still be the case. Key respondents for the present

analysis confirmed that the ownership and/or leadership of national responses to asylum-

seeking children remain divided among a complex web of federal and local agencies whose

convoluted division of responsibilities can lead to institutional tensions and friction. These

tensions can negatively affect child asylum seekers’ access to services such as education,

health, housing and justice.

For instance, long waiting times for services in Sweden indicate

that communication between state and municipality is far from ideal. The Ombudsman for

Children in Sweden found that the children interviewed had neither been assigned a guardian

nor put in touch with social services.

One child reported what migration personnel had said

See Council of Europe,

Guidelines of the Committee of Ministers of the Council of Europe on Child-friendly

Justice,

COE, Strasbourg, October 2011; and Council of Europe,

Council of Europe Recommendation on Children’s

Rights and Social Services Friendly to Children and Families,

COE, Strasbourg, 2011.

Interviews with the Ombudsman for Children, Reykjavik, 10 November 2017, and the Icelandic Migration Service,

Reykjavik, 11 November 2017.

Marshall, Wenke and Nordh.

Child Trafficking in the Nordic Countries: Rethinking strategies and national

responses, Innocenti Insights,

United Nations Children’s Fund, Florence, 2012.; Vitus, Kathrine, and Hilde Lidén,

‘The Status of the Asylum-seeking Child in Norway and Denmark: Comparing discourses, politics and practices’,

Journal of Refugee Studies,

vol. 23, no. 1, 1 March 2010, pp. 62–81, see, in particular, pages 76–78.

Interviews with the Ombudsman for Children, Reykjavik, 10 November 2017; the Health Centre for Undocumented

Migrants, Oslo, 3 November 2017; and the Ombudsman for Children in Norway, Oslo, 3 November 2017.

Barn på flykt,

pp. 8–9.

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and the personnel’s reaction: “‘You are like all the children here so … you have to wait.’ Okay,

now we waited for three months but none of us have received a guardian or anything else.”

The 2011 analysis was unable to establish how national strategies and plans of action

to address child trafficking related to child protection strategies and action plans.

Likewise, the present analysis found that the Nordic countries typically lack comprehensive,

multi-sectoral strategies and plans relating to asylum-seeking children.

Asylum and child protection are discrete functions of central government in the Nordic states,

but the responsibility for providing child protection services has been delegated to local

authorities in all five countries.

This model has proved successful in protecting vulnerable

children’s rights. However, in the absence of a corresponding devolution of responsibility and

resources in the asylum process, the model only further fragments the response to asylum-

seeking children. Finland, Iceland and Sweden each have an explicit national child protection

law and a national child protection strategy; Denmark does not - though it has attempted

to - include a child protection perspective in law with the ‘child’s reform’ (Barnet’s reform),

but leaves it to the local authorities to develop action plans. Although local authorities in the

Nordic region generally adopt an integrated approach to the provision of child protection and

care services, and accept responsibility for all children who reside in a given municipality,

how they understand and interpret their obligations may vary, and the extent to which

they can influence asylum decisions made centrally is limited. Tensions between different

sectoral perspectives at the national and local levels enable gaps in oversight, ambivalent

interpretations of legislation, a fragmented approach and inconsistent practice, all of which

can severely weaken a child asylum seeker’s protective environment.

Ibid., p. 8.

Marshall, Wenke and Nordh.

Child Trafficking in the Nordic Countries,

pp. 12–13.

Migrationsverket, ‘Om ensamkommande barn’, PowerPoint presentation, Stockholm, August 2016,

available at <www.migrationsverket.se/download/18.585fa5be158ee6bf362bd8/1485556061650/

Ensamkommande+barn+andra+aktörer+augusti+2016.ppt>,

accessed 3 February 2018.

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Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

2. Assessment of the national

responses to asylum-seeking

children

2.1 Assessment framework

An analytical framework

sets the parameters of the present research’s review of national

law, policy, strategies and actions relating to asylum-seeking children in the Nordic countries.

In line with the child rights-based approach to this research, the framework assesses how far

such responses translate into practice the principles underlying the Convention on the Rights

of the Child, as a result of being by nature:

Child-centred:

The Committee on the Rights of the Child asserts that “a child is first and

foremost a child, whatever the condition he or she may find himself or herself in”.

This implies

that it is the best interests of the individual child – rather than her or his legal or asylum status –

that should always be the primary consideration in determining legislative, policy and service

responses to asylum-seeking children.

Equivalent:

The principle of non-discrimination stipulates that all children in a country should

enjoy full access to their rights, irrespective of their legal or other status. This implies that

national authorities should try to provide asylum-seeking children with the same level of

access to entitlements and services as nationals enjoy, and strive to reduce the barriers that

restrict equal access.

Inclusive:

The non-discrimination principle implies that national authorities should adopt an

inclusive approach towards every child for the duration of their stay in country, regardless

of their legal status. Thus, the authorities should aim to integrate asylum-seeking children

into mainstream child and family services as soon as possible, rather than support parallel

structures or services for this group.

Participative:

Involving children as far as possible in decision-making at every level is key to

the full realization of their rights, and it also enables more effective and efficient action. Child

participation involves not only the provision of mechanisms to allow children’s voices to be

heard, but also ensuring that due weight is given to a child’s views when making decisions

that affect her or him.

Adopted from Kevin Byrne’s contribution to

Refugee Children and Minors in Europe: The role and responsibilities

of local and regional authorities,

adopted by the Current Affairs Committee, Congress of Local and Regional

Authorities, Council of Europe, Strasbourg, on 18 October 2017.

As outlined in:

Report of the 2012 Day of General Discussion on the Rights of All Children.

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While the framework acts as a prism through which to examine the general child rights

orientation of the Nordic states’ responses to asylum-seeking children, the more detailed

analysis of practice on the ground relies on measurement against a checklist of indicators

drawn from internationally accepted guidelines of good practice.

The assessment framework

also took into account: (i) how far services met the criteria of availability, accessibility,

acceptability and quality outlined by the Committee on Economic, Social and Cultural Rights;

and (ii) whether sufficient and satisfactory safeguards were in place at the right levels (i.e.

law, policy, regulation, practice) to ensure the full realization of asylum-seeking children’s

rights. Country assessments examined five priority domains: general context, asylum

process, education, health, and child protection. Although the checklist used does not enable

quantitative measurement of every activity, responses to clusters of questions can indicate

how far a specific activity or service adopts a rights-based approach to translating a child’s

entitlements into reality. Taken together, these responses enable an evaluation of both the

social, institutional, organizational and policy frameworks that determine asylum-seeking

children’s protective environment, and the strategic and operational practices in each country.

2.2 Assessment of the national responses

Ownership/leadership

In the Nordic countries, child protection agencies seem to have allowed asylum services to

take responsibility for decisions regarding asylum-seeking children, despite their national

remit to offer care and protection to all vulnerable children. Asylum and child protection

services do work in partnership, however,

and asylum agencies have clearly worked

hard to provide a child-focused service.

No matter how child-friendly asylum

Yet there is an inherent tension between

processes may be, asylum agencies’

a migration/asylum approach that assigns

primary priority is not child protection

entitlement on the basis of legal status,

and they are unlikely to be as child-

centred – in terms of organizational

and a child rights-based approach which

culture, ethos and practice – as national

assigns a comprehensive set of inalienable

and local child protection agencies.

entitlements to all children.

Responsibility

This will inevitably be reflected in

decision-making processes and

for an asylum-seeking child does seem to

mechanisms that can significantly

be shared once the child has been referred

affect a child’s life, including when to

to child protection services. However, the

involve appropriate child protection

agencies.

decision to refer, and when to refer, lies with

asylum personnel. Asylum-seeking children

See Annex 3 for a full list of the good practice guidelines incorporated in the checklist.

Committee on Economic, Social and Cultural Rights, General comment No. 14: The Right to the Highest Attainable

Standard of Health (Art. 12), E/C.12/2000/4, United Nations, Geneva, 11 August 2000; Spencer, Sarah, and Vanessa

Hughes,

Outside and In: Legal entitlements to health care and education for migrants with irregular status in

Europe,

COMPAS, Oxford, July 2015.

For a more detailed discussion of these differences, see Byrne et al.,

The Legal Entitlements of Refugee and

Migrant Children.

For a fuller discussion, see Byrne, Kevin, ‘Law, policy and practice affecting migrant and refugee

children in Europe’, Internal document, UNICEF, Florence, 2016.

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have, in principle, the same rights to child protection services as other children. There are

differences between municipalities in the child protection services they offer to asylum-

seeking children. Schools and maternal and child health clinics are responsible for child

welfare notification. In Denmark, referral is delayed until the child has been granted asylum,

which can take months or even years. Once asylum is granted, however, full access to

local services kicks in, putting great pressure on the offices of such services to coordinate

support and integration efforts to find a school and housing for the child, respond to any special

needs and so on.

Research carried out in Norway and Denmark in 2010 indicated that

adopting an ‘asylum seeker’ perspective in discourse and in practice “almost obliterated

both the category of ‘children’ and the implications of age and consequent social position”,

while adopting a child rights perspective helped to produce a nuanced picture of migration

practices in the country.

Changes in the political climate since then, combined with the

fact that national asylum services retain primary responsibility for asylum-seeking children in

all of the Nordic countries, means that a ‘client’ is seen first and foremost as an ‘asylum seeker’

or ‘migrant’ rather than as a child, and this perception strongly influences the parameters of

the service agreement between the child and the state. Establishing the precedence of the

Convention on the Rights of the Child over national asylum law could greatly strengthen the

authority and role of child protection services in relation to asylum-seeking children, but this

approach is not always accepted in the Nordic region.

There is no clear or comprehensive understanding of exactly how the dynamic between

central and local governance influences either the working relationship between the various

agencies in the Nordic region or the balance of authority in decision-making processes. While

cooperation across sectors seems to be working on the ground, it is unclear whether specific

mechanisms are in place to ensure multi-sectoral cooperation across all levels of government,

whether this is negotiated on a case-by-case basis, or whether it has simply evolved organically

and informally in various locations.

In terms of safeguards, it seems important to have a

formal mechanism in place, not only to facilitate high-quality inter-sectoral cooperation, but

also to review, revise and improve coordination on an ongoing basis.

Finland, Iceland and Norway have integrated the Convention on the Rights of the Child into

national law, and clear, explicit acceptance of the primacy of the Convention over national law

could have a positive impact on the balance of authority between asylum and child protection

agencies. In Norway, the Convention takes precedence over any other legislative provision,

including asylum law,

but

the status of the Convention in relation to migration law is

unclear in most of the Nordic countries.

In Sweden, no formal decision has yet been made

to incorporate the Convention into national law by 2020, although this is the government’s

intention and it will proceed with a formal proposal to parliament in 2018. Denmark, on the

other hand, sees no need to integrate the Convention into national law.

Interview with Child Services, Copenhagen Municipality (Valby/Vesterbro/Kongens Enghave), Valby, 2 November

2017.

Vitus and Lidén, ‘The Status of the Asylum-seeking Child’, p. 77.

Ibid.

See the Act relating to the strengthening of the status of human rights in Norwegian law (The Human Rights Act),

available at <http://app.uio.no/ub/ujur/oversatte-lover/data/lov-19990521-030-eng.pdf>, accessed 3 February 2018.

Institut for Menneske Rettigheder (Danish Institute for Human Rights), ‘Dansk lovgivning’, Copenhagen, 21

January 2014, <https://menneskeret.dk/om-os/menneskerettigheder/menneskerettigheder-danmark/dansk-

lovgivning>,

accessed 3 February 2018.

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All of the Nordic countries appear to distinguish – in law, in policy and in practice – between

children above and below the age of 15. It is unclear how relevant it is to make such a distinction

in relation to asylum.

In Sweden, greater weight is given to input into the asylum process

made by children aged 15 years or older, and this age group is also given more opportunities

to feed into decision-making processes. In other Nordic countries, however, older asylum-

seeking children are more likely to be placed in an institution or held in detention, and they are

less likely to be actively searched for in the event that they go missing.

Oversight

Appropriate implementation bodies are required at all levels, especially if children are not in

the formal care of state child protection agencies.

None of the Nordic countries appear to have

a national board, body or parliamentary committee that has final and overall accountability

for asylum-seeking children.

Mixed messages were also drawn from the field in relation to

oversight by an ombudsperson and/or other independent human rights monitoring body. An

ombudsperson is entitled to visit reception centres in all of the Nordic states and has done so

in Denmark, Norway and Sweden,

but the ombudsperson’s remit in relation to wider asylum

issues is unclear. Primary evidence suggests that there uncertainty about the extent to which

internal evaluations of reception facilities are produced and made public – though this may be

done in other countries, for instance, by the Swedish Migration Agency.

The Phase I analyses appear to suggest that not all Nordic region residential facilities that host

asylum-seeking children are subject to the same standards of oversight as other residential

facilities for children.

It is unclear how local child protection agencies maintain oversight of

residential facilities given the variety of managing agencies involved, or whether such facilities

are open to public scrutiny. In Finland, for instance, where reception centres are run by the

Finnish Immigration Service, NGOs and private companies, the Finnish Immigration Service

supervises the centres by making unannounced inspections.

In all of the Nordic countries,

there is a need to strengthen external oversight of asylum services and facilities, as regular

and ongoing scrutiny by a range of actors – ombudsperson, civil society, parliament and

the general public – is one of the strongest possible safeguards available to children in the

asylum system.

See Folketingets Ombudsmand (Danish Parliamentary Ombudsman), ‘Ombudsmandens Børnekontor besøger

center for uledsagede unge asylansøgere’, Copenhagen, 17 November 2016, <www.ombudsmanden.dk/find/

nyheder/alle/boernekontor_besoeger_center_for_uledsagede_unge_asylansoegere/>,

accessed 3 February 2018;

The UN Convention on the Rights of the Child. Supplementary report

–

Norway,

pp. 47–48.

Interview with anonymous informant, Helsinki, 27 October 2017.

Phase I background study.

Interview with anonymous informant, Helsinki, 27 October 2017.

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Access to justice

While the Nordic states legally recognize the child’s right to information, differences persist

depending on the pressure on the asylum system, and on whether children travel alone or

accompanied. Children have expressed scepticism that full information was shared with them

or that their right to receive information was realized: as the girls interviewed in Finland reported,

“It’s just a signature, it doesn’t work in practice.”

Children in Sweden have confirmed the lack

of sufficient information – let alone child-friendly information – with one child reporting: “I was

at the interview and afterwards I was very anxious and did not know what to think because I

did not know how this would end.”

Skårdalsmo and Harnischfeger found similar experiences

among children in Norway who asked to be given “a sense of the rules”, clearly indicating a

lack of child-friendly material.

As a rule, accompanied children are not informed about the asylum process in Denmark,

as they are considered part of their parents’ case. The Icelandic Ombudsman for Children

remarked that informing children of their rights is a “huge problem in Iceland for accompanied

children” who receive neither an independent case examination nor legal aid.

In terms of access to justice, UASC are generally better protected than accompanied children.

While UASC are automatically assigned a legal representative, accompanied children are not.

The expectation is that a child’s best interests will concur with those of her or his family,

and that the child’s parents will represent her or him adequately throughout the asylum

process.

The model for legal representation varies across the Nordic countries. In Norway, for

instance, the guardians (representants) are recruited and trained by the Country Governor and

the guardian has the function of legal representation and spokesperson.

In Denmark, the Red

Cross provides both the child’s legal representative and guardian – the former is a Red Cross

employee, the latter a volunteer.

The set-up is similar in Iceland.

In Sweden, the child has the right to a guardian appointed by the chief custodian’s office in

the relevant municipality and to legal representation in the asylum process, although the legal

presence is not required for the asylum interview to take place.

In Finland, on the other hand,

the district court appoints the guardian, who is responsible for ensuring that the child’s right

to legal representation is realized.

Child quoted in Kaukko, Mervi, ‘The CRC of Unaccompanied Asylum Seekers in Finland’,

The International Journal

of Children’s Rights,

vol. 25, no. 1, 2017, pp. 140–164.

Child quoted in

Barn på flykt,

p. 8.

Skårdalsmo, Envor M. Bjørgo, and Jessica Harnischfeger, ‘Vær snill! – Råd fra enslige mindreårige asylsøkere og

flyktninger til voksne omsorgsgivere’,

Tidsskriftet Norges Barnevern,

vol. 94, no. 1, 3 April 2017, pp. 6–21, see, in

particular, pp. 1-2.

Interview with the Ombudsman for Children, Reykjavik, 10 November 2017.

Vergeforeningen Følgesvennen, ‘En veileder for verger. Vergens rolle’, 2018, <http://vergeforeningen.no/veileder/

category/vergens-rolle/>,

accessed 3 February 2018.

Interviews with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017.

Interviews with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017, and the

Icelandic Red Cross, Reykjavik, 10 November 2017.

Interviews with the Swedish Migration Agency, Stockholm, 25 October 2017, and the Swedish Refugee Advice

Centre Children’s Unit, Stockholm, 24 October 2017. See also: Migrationsverket, Socialstyrelsen, Länsstyrelserna,

Inspektionen för vård och omsorg, Sveriges Kommuner och Landsting, and Skolverket,

Ett gemensamt ansvar för

ensamkommande barn och ungdomar,

Stockholm, May 2017, pp. 4, 7.

Interviews with the Central Union for Child Welfare, Helsinki, 26 October 2017, and the Federation of Mother

and Child Homes and Shelters, Helsinki, 27 October 2017; Lepola, Outi,

Report on the Guardianship System

Concerning Unaccompanied Minors Arriving in Finland,

Central Union for Child Welfare, 2012, pp. 1–3;

Pakolaisneuvonta Ry (Refugee Advice Centre) and Maahanmuuttovirasto Migrationsverket (Finnish Immigration

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The present analysis found that although

guardianship and legal representation

Good Practice 2: Sweden

systems generally function well in the

To better meet the needs on the street, the

Nordic region – in large part thanks to

Swedish Police is developing child-friendly

information material in the form of short

the devoted work of volunteers and

videos that the police can show on mobile

practitioners – they face a number

devices to children they encounter on the

of challenges. The guardian or legal

street.

representative is meant to function as an

unaccompanied child’s primary source of

support throughout the asylum process,

but this responsibility is not necessarily qualified in law. There are also concerns about

the independence of guardians and legal representatives and the nature of the contractual

relationship with individual asylum-seeking children. The guardians are dependants of

the Finnish Immigration Service – which pays their salaries and is in charge of the group

homes. The Finnish Immigration Service’s relationship with the guardian affects the nature

and extent of the contractual relationship between a child and her or his guardian. Generally,

children are assigned a guardian and have little say in the appointment. Except in Norway,

guardians neither observe a clear protocol on confidentiality nor have a clear mandate to make

a child’s views known if these are at odds with the guardian’s own opinion of the child’s best

interests. It is unclear what happens in such a situation, and the child’s right to complain about

the guardian or seek a replacement is very restricted. Finally, the shortage of appropriate

guardians and the absence of a cap on the number of children a guardian may support can

lead to serious neglect. In Sweden, this has led to guardians amassing far more children than

they can care for properly, and better supervision and monitoring of the situation is needed.

Full access to legal aid and judicial review – which should constitute the second key strand

of any safeguarding strategy – must be available to children throughout every stage of the

asylum process.

Yet judicial review is only

available in the Nordic countries at certain

stages of the asylum process, and then

Good Practice 3: Denmark

only if the court does not deem it ‘clearly

In Denmark, all asylum rejections are

unnecessary’. Professional legal advice

automatically referred to the Refugee

Appeals Court, except for those cases

is not automatically available to a child

from the ‘obviously unfounded’ and the

throughout the asylum process, and the

‘obviously unfounded rush’ procedure,

criteria for accessing legal aid appear to

which are sent to the Danish Refugee

Council that has the power of veto. This

be tightening. New regulations introduced

helps to ensure that rejections are subject

by the Finnish Immigration Service give

to due process at two levels and that it is

the public legal aid service sole authority

not left to the asylum seeker to have to

to handle asylum cases up to the appeal

meet appeals deadlines.

stage, restricting a child’s right to access

Source: Interview with the Danish Immigration Service,

Copenhagen, 1 November 2017.

support from private, independent or NGO

sources. Previously, asylum seekers could

Service),

Representation in the Asylum Process: Guide for representatives of minor asylum seekers,

Refugee

Advice Centre, Helsinki, 2010, available at <www.pakolaisneuvonta.fi/files/Edustajaopas_2010_eng_v13cov.pdf>,

accessed 3 February 2018.

Interview with the Swedish Migration Agency, Stockholm, 25 October 2017. See also:

Barn på flykt,

p. 9.

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receive free legal counsel from independent refugee lawyers.

The new regulations have also

cut the hourly reimbursements payable to lawyers. Similar processes have also been put in

place in Norway. UASC have a right to a lawyer, but their lawyer is not automatically part of

the asylum process. After a negative decision, the lawyer is restricted to five hours’ work

to review and repeal the cases.

Restrictions in time, funding and eligibility all act to erode

children’s basic right to legal advice, and a service cannot really be considered available if the

child cannot afford it.

Child participation

Child participation is another key safeguarding element that should underpin the entire asylum

process. The Nordic model of child participation generally reflects a positive societal view of

children as rights-holders who have an inherent capacity to formulate and express life plans,

and this perspective is enshrined in national law in all five countries. While all five states have

incorporated the principle of child participation into their asylum processes and established

procedures to allow children to speak and be heard, research in Iceland on the appointment of

spokespersons in child protection work indicates that enforcement of the law is characterized

by a lack of formality, protocols and assessment.

Another report, from Norway, indicates

that there can also be a lack of effective national complaints procedures for children, and an

absence of political will to provide such procedures.

Training in communicating with children is available in the Nordic countries, but key

respondents have suggested that children are often not consulted appropriately or

sufficiently.

Accompanied children are typically seen as an attachment to their parents, with

no independent status, and thus remain “invisible in the process”.

According to Swedish

national migration legislation, these children are only heard in the asylum process if it

is “not inappropriate”.

Though this clause is often used as a reason not to hear children,

the definition of ‘inappropriate’ is not always clear. Even when children are heard, they are

often asked questions aimed at adults and are rarely heard without a parent present,

even

where the migration authority has developed questionnaires to guide staff when interviewing

accompanied children.

A child’s opportunities to speak directly to decision-makers are limited

and the formats and parameters prescribed for input by children tend to facilitate the asylum

process rather than the child.

Interview with anonymous informant, Helsinki, 27 October 2017.

Interview with the Norwegian Organisation for Asylum Seekers (NOAS), Oslo, 6 November 2017.

Friðriksdóttir, Hrefna, and Hafdís Gísladóttir, ‘Skipan talsmanns fyrir börn – grundvöllur ákvörðunar og

framkvæmd’ [The development of provisions in child protection laws on the appointment of spokespersons for

children],

Stjórnmál og stjórns�½sla,

vol. 11, no. 2, December 2015, pp. 313–332, available at <https://skemman.is/

bitstream/1946/23513/1/a.2015.11.2.10.pdf>,

accessed October 2017.

The UN Convention on the Rights of the Child. Supplementary report – Norway.

Interview with the Refugee Advice Centre, Helsinki, 27 October 2017.

Interview with the Ombudsman for Children, Reykjavik, 10 November 2017; Guðmundsdóttir, Helga, ‘Upplifun og

reynsla barna og foreldra sem leita alþjóðlegrar verndar á Íslandi’ [Experience of children and parents seeking

international protection in Iceland], Master’s thesis, February 2016, in: Correspondence with UNICEF Iceland, 25

October 2017.

Utlänningslag [Swedish Foreign Act] (2005:716), sections 1–11, available at <https://lagen.nu/2005:716>, accessed

October 2017.

Insights from primary research undertaken in Sweden.

Migrationsverket, ‘Checklista för barnkonsekvensanalys barn i familj’, Stockholm, September 2017.

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The potential for tension between a child’s

views and those of her or his guardian is not

acknowledged and it is unclear what criteria

besides age are used to assess capacity

and to assign weight to the child’s opinions,

especially where these conflict with those

of an adult. There are gaps in relation to the

formal acceptance of a child’s input and the

limited support for the child to appeal against

decisions with which she or he disagrees.

Thus, while child participation in the Nordic

countries is high in general, it appears to be

neither fully integrated into the asylum system

nor consistently practised. It also seems

likely that different standards are applied to

asylum-seeking children and to nationals in

relation to the right to be heard.

Asylum-seeking children, in practice,

have only limited opportunities to

actually shape the agenda around their

own future. While the law allows the

child to provide input to the asylum

process, in practice she or he is heard

only on certain matters, and there are

areas where the child’s opinion is not

sought. Even when the law allows for

consultation with the child, it can also

send a strong message that the child

must choose a specific option, e.g.

consent to age assessment procedures.

Decision-makers in the Nordic states

are also given the legal authority

to decide that hearing the child is

‘manifestly unnecessary’ without

having to justify that decision to the

child. It is not clear whether these

arrangements mirror those in the child

protection system.

The Danish Children’s Reform provides

that children in Denmark have a “right to be

involved from the age of 12 years in all aspects including complaints about assignment of

special support, repatriation from a placement or a foster family or other angles on children’s

life”.

Under Finland’s Child Welfare Act, a child is considered a party to any proceeding in

child welfare matters, and children aged 12 years or older have full procedural rights in matters

that affect them.

The Child Protection Act in Iceland guarantees every child the opportunity

to express her or his views.

However, in practice, immigration always speaks to children

over the age of 15, and assesses the need to speak to younger children on an individual basis.

In Norway a child has the right to be heard even below the age of seven years under the

Children’s Act, the Child Welfare Act and the Immigration Act.

Finland has committed to

enabling children from the age of 12 (or sometimes even younger) to give their input to the

asylum process, but in most Nordic countries only children aged 15 years or older seem to

enjoy in full the right to participate in the asylum process.

The Danish Children’s Reform was adopted by the Danish Parliament in 2010 and came into force in 2011.

See: Collaborating Group on the Children’s Convention in Denmark,

Supplementary NGO Report to the

Danish Government’s 4th Periodic Report to the UN Committee on the Rights of the Child,

DIGNITY, Danske

Handicaporganisationer, Red Barnet Ungdom, UNICEF Denmark, Amnesty International, Børns Vilkår, Foreningen

Grønlandske Børn, Børnesagens Fællesråd, and Save the Children Denmark, Copenhagen, November 2010, p.

10, available at <http://boernesagen.dk/wp-content/uploads/2016/06/SUPPLEMENTARY-NGO-REPORT0910.pdf>,

accessed 3 February 2018.

Government of Finland,

Fourth Periodic Report of the Government of Finland on the Implementation of the UN

Convention on the Rights of the Child,

July 2008, paras. 140–142, available at <www2.ohchr.org/english/bodies/

crc/docs/Finland_4thPeriodicReport.pdf>,

accessed 3 February 2018.

Ministry of Welfare, Government of Iceland, Child Protection Act, No. 80/2002, article 46. See: Committee on the

Rights of the Child,

Consideration of Reports Submitted by States Parties under Article 44 of the Convention,

Iceland’s Third Periodic Report,

Government of Iceland, Ministry of Justice and Ecclesiastical Affairs, June 2008,

para. 59, available at <www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-ISL-3-4.doc>, accessed 3

February 2018.

See: Committee on the Rights of the Child,

Consideration of Reports Submitted by States Parties under Article 44

of the Convention, Concluding observations: Norway,

CRC/C/NOR/CO/4, Advance Unedited Version, 29 January

2010, para. 24, available at <www2.ohchr.org/english/bodies/crc/docs/CRC.C.NOR.CO.4.pdf>, accessed 3 February

2018.

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Best interests of the child

The Convention on the Rights of the Child gives children the legal right to have their best

interests accepted as the primary consideration in any decision-making process that concerns

them. The Committee on the Rights of the Child recommends in its General comment No. 14

(2013)

that the child’s best interests are examined and determined in each

individual case

light of the

specific circumstances

of each child or each group of children, and are related to

the

individual characteristics

of the child or group of children concerned, including the

social

and cultural context

in which the child or group of children find themselves.

National law in all five of the Nordic countries stipulates that a best interests determination

(BID) should be conducted during the asylum process, in line with the Convention’s legal

imperative. By law, a child’s best interests must be taken into account during asylum

proceedings, and decisions can be legally challenged on the basis of the child’s best interests.

Yet Danish law does not define the best interests principle, and key respondents raised doubt

about the existence of a systematized holistic best interests assessment (BIA) procedure.

How BIA is practised for unaccompanied and accompanied children in the Nordic region also

differs, as migration authorities appear to deem the best interests of accompanied children

identical to those of their families, often overlooking them for individual assessment, as is

the case in Finland.

UDI, the Norwegian Directorate of Immigration, also complains about

the lack of material and training on the best interests of accompanied children, resulting in

accompanied children being assessed by officials who lack the appropriate competencies.

In practice, all BIAs (including BIDs) conducted in the Nordic region examine the child’s: age/

maturity; situation in the country of origin; family network and/or connections in the host

country; and experience of physical and/or mental abuse/traumas; plus any other factors

deemed relevant. Children are entitled to feed into all types of BIA and BID in every Nordic

country, although the mechanisms in place to facilitate their input vary considerably in quality.

All of the Nordic countries lack clear protocols and formats for BIAs and BIDs, which can lead

to poor-quality assessments and gaps in good practice. Key respondents in several countries

raised concerns about whether BIAs meet in-country standards, let alone the standards

required by the Convention on the Rights of the Child, and in some countries they raised

concerns about whether BIAs are conducted at all at the requisite times.

Committee on the Rights of the Child, 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. 42.

Correspondence with Danish Refugee Council, February 19, 2018; Correspondence with Danish Red Cross,

February 19, 2018. See also: Dansk Flygtningehjælp (Danish Refugee Council),

Hensynet til barnets bedste: i den

danske asylprocedure,

DFH, Copenhagen, June 2015.

Interview with Save the Children Finland, Helsinki, 26 October 2017.

Interview with the Ombudsman for Children in Norway, Oslo, 3 November 2017. According to the Ombudsman,

UDI (the Norwegian Directorate of Immigration) is interested in receiving assistance and guidelines from other

specialized organizations and agencies.

Various procedural guides have been developed but they lack consistency and depth. See, for example,

Migrationsverket, ‘Checklista för barnkonsekvensanalys barn i familj’, Stockholm, September 2017.

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The Committee on the Rights of the Child also recommends that child protection authorities

within child protection systems should always be involved, with a lead role, in BID

procedures.

There is no consistency across the Nordic region, however, in terms of who

conducts BIDs, at what stage of the asylum process they are undertaken, or their purpose

and function in the asylum process.

Evidence from Finland, Norway and Sweden suggests that

immigration authorities tend to carry out BIDs with a specific focus on whether a child should

remain in the country or return to her or his country of origin.

Other sources relate how child

protection authorities, in contrast, are likely to assess a child’s best interests with a specific

focus on care arrangements, possible risks and/or experiences of violence, exploitation or

abuse.

Two formal BIDs are mandated in Iceland: a procedural BID tied in with a medical examination,

conducted as soon as possible after the immigration authorities receive an asylum application;

and a refugee status BID conducted by the child protection authorities to determine whether

a child requires protection. However, in Iceland, there is a shortage of interpreters and social

workers have reported the need for more training in cultural sensitivity and communication with

ethnic minority families.

Unaccompanied children represent a new field in child protection

in Iceland and so far no guidance is available on how to work with such children. In Finland, a

reception centre social worker will conduct a BIA before the asylum interview, which may take

place a considerable time after the child’s arrival at the centre, and other BIAs are conducted

throughout the asylum process.

In Norway, reception centre personnel usually conduct a

BID soon after a child’s arrival to determine her or his immediate welfare needs, though it

also focuses on the longer term, to identify durable solutions.

A commitment to assessing,

determining and realizing the best interests of the individual child is a core value common

to asylum, migration and child protection services in the Nordic region, and it underpins

several major procedural safeguards in all three systems. Yet none of the Nordic countries

are conducting BIAs and BIDs as they should be conducted, and it is strongly recommended

that common models are adopted and consistently applied across all five states.

UN Committee on the Rights of the Child (CRC), Committee on the Rights of the Child,

Report of the 2012 Day of

General Discussion on the Rights of All Children in the Context of International Migration,

28 September 2012,

available at: <http://www.refworld.org/docid/51efb6fa4.html>, accessed 14 February 2018.

Marshall, Wenke and Nordh.

Child Trafficking in the Nordic Countries.

Feedback from participants in round-table discussions held in Denmark (28 April 2011), Finland (13 May 2011),

Norway (5 May 2011) and Sweden (3 May 2011) quoted in Marshall, Wenke and Nordh,

Child Trafficking in the

Nordic Countries,

p. 12.

Borisdóttir, Nadía, ‘Starf félagsráðgjafa í barnavernd með fjölskyldum af erlendum uppruna’ [The work of social

workers that work with ethnic minority families in child protection services], Master’s thesis, November 2016.

Interview with the Espoo Reception Centre, Espoo, 30 October 2017.

For instance, the Best Interests of the Child-Questionnaire (BIC-Q) developed in 2014 expanded the basic

principles and characteristics of best interests assessments as outlined by the Committee on the Rights of the

Child into 24 questions relating to: (a) the child’s current living situation; (b) the expected future situation if the

current child-rearing and living situation continues; and (c) the expected future situation if an alternative child-

rearing and living situation is chosen. A professional can use this questionnaire to assess the child’s current

environment and to compare it with the situation which can be expected to result following a specific decision.

See: Kalverboer M. E.,

The Best Interest of the Child in Migration Law: Significance and implications in terms of

child development and child rearing,

SWP Publishers, Amsterdam, 2014, cited in

The Best Interests of the Child –

A dialogue between theory and practice,

edited by Milka Sormunen, Council of Europe, Strasbourg, March 2016.

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2.3 The asylum process

Arrival and registration

It is common practice across the Nordic region for no unaccompanied child to be denied

entry nor deported, even if entry conditions are not met. To strengthen the child’s protective

environment, however, it is recommended that national law be amended to reflect good

practice on the ground. Child protection services are not usually represented at border points

in the Nordic countries, so a child’s first contact with state authorities is likely to be with

border guards or police officers, who do not necessarily possess child competencies. The

initial contact between child and state representative is important as it sets the parameters

of the relationship for both parties. It can influence state decisions regarding entry and the

child’s assignment to subsequent procedures as well as decisions the child makes about

how to interact with the asylum process and with the child protection authority. Training is

available to border guards and police officers in Finland, Norway and Sweden to help identify

children – potential victims of trafficking in particular – but it appears to do no more than

superficially touch on child competencies.

Interpreters are usually present at the registration

of an asylum-seeking child but may not be specially trained in child-friendly communication.

Finnish immigration police remarked that little training is available, although “small children

and youngsters are many times left on the doorstep of a police station”.

Interview with Helsinki Police Department (Immigration Affairs), Helsinki, 30 October 2017.

Ibid. Citation from: Helsinki Immigration Police, ‘Unaccompanied Minors in the Asylum Process’, 14 November 2017,

on file with the authors.

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There is a need to ensure that: border guards and police officers in all five Nordic countries

are skilled in child-friendly communication; asylum-seeking children can access interpreters

and independent support at the point of contact; and inter-agency protocols facilitate rapid

engagement by national child protection authorities.

In terms of making referrals to child protection services, police officers in Iceland summon

child protection services to the airport on encountering UASC; in Denmark, UASC are

immediately taken to a reception centre, with registration taking place the very next day.

Border authorities in Finland also refer UASC to the child protection authority immediately,

without first confirming their ages. An unaccompanied minor (who informs the authorities of

her or his age) is either sent to a group home or a supported housing unit for unaccompanied

minors.

UASC aged 15 years or older arriving in Norway are referred to special care facilities

run by the Norwegian Directorate of Immigration, while those below the age of 15 are referred

to centres run by the child protection authority. In Sweden, UASC must be registered as asylum

seekers to be included in the protection system.

Age assessment

In 2017, the Committee on the Rights of the Child prescribed that the state must “undertake

a comprehensive assessment of the child’s physical and psychological development”, to be

conducted by “specialist paediatricians or other professionals who are skilled in combining

different aspects of development”. The assessment should be carried out in a “child-friendly,

gender-sensitive and culturally appropriate manner” which must include child participation

and interviews with “accompanying adults, in a language the child understands”. The

Committee further stipulates that documents should be considered genuine unless proved

false and that benefit of the doubt should be given to the individual being assessed. The

Committee advises that “States should refrain from using medical methods based on, inter

alia, bone and dental exam analysis” because these have a wide margin of error and can be

traumatic. Finally, all states should ensure that their determinations can be reviewed by or

appealed before a suitable independent body.

No Nordic state lives up to the guidelines provided by the Committee in 2017. The grounds,

timing and methods for conducting age assessment differ across the Nordic countries. The

same goes for the states’ compliance with Committee on the Rights of the Child General

comment No. 6, which stipulates that age assessment should take into account psychological

maturity as well as physical appearance and be conducted in a scientific, fair, safe, and child-

and gender-sensitive manner, avoiding any risk of violation of the physical integrity of the child

and giving due respect to human dignity. According to Article 25(5) of the recast EU Asylum

Procedures Directive, age assessment should only be used where there are grounds for serious

doubt of an individual’s age, and the least invasive examination should always be selected.

Interviews with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017, and the

Icelandic Directorate of Immigration, 10 November 2017.

Interview with Finnish Immigration Service.

Committee on the Protection on the Rights of the Child on state obligations regarding the human rights of

children in the context of international migration in countries of origin, transit, destination and return. CMW/C/

GC/4-CRC/C/CG/23, p. 2, 2017.

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In the Nordic countries, age assessment is permitted where there is ‘reasonable doubt’ about

an individual’s age, but it is unclear how reasonable doubt is defined, who decides that there

is reasonable doubt and what safeguards are in place to prevent abuse of the concept. Border

guards and police officers base initial estimates of age on identity documents and on a visual

assessment at the point of entry, although Denmark claims to rely solely on documentation:

in cases where documents are difficult to obtain or have no legal bearing, the Danish Refugee

Council noted that age assessment has become the all-important proof, risking ruling out the

benefit of doubt for the child.

As part of the Danish asylum procedure for unaccompanied

children, the immigration authorities start by assessing the maturity of the individual, asylum-

seeking child. If the child is deemed too immature to go through the Danish asylum procedure

a temporary residence permit may be granted. Children with family in the home country are,

however, not given a temporary permit, according to section 9c (3)(i) of the Danish Alien Act.

These unaccompanied children, who are often very young (most between 12 and 14 years old

but in some cases as young as 9 years old) are then given the choice of either waiting at asylum

centres in Denmark until they are deemed sufficiently mature by the immigration authorities, in

order to have their asylum case processed or – notwithstanding the maturity assessment – of

continuing with the asylum claim assessment procedure.

In Finland, in practice, the authorities

consider anyone who refuses to go through the age assessment process an adult by default, and

UDI in Norway has stated that age assessment

is “used too much”

, while a 2016 report

found that “medical assessments are given

State authorities in all five Nordic

too much weight when age is determined”.

countries do seek informed consent

State authorities in the various countries use

different combinations of methods, including

medical methods, in their age assessment

processes.

Denmark allows all forms of

medical assessment except psychological

assessment, i.e. carpal bone, collarbone or

dental X-rays; dental observation; physical

development assessment by a doctor; and

sexual maturity observation. Iceland uses

dental X-rays and dental examinations. In

Finland, only wrist X-rays and dental X-rays are

used. Norway allows carpal bone, collarbone

or dental X-rays and dental observation but

does not draw on social services assessments,

which could facilitate a more holistic

assessment of a child’s needs. Sweden did

not previously use medical methods for age

for age assessment from the child

and/or her or his guardian, and

advise the applicant of the reasons

for the assessment. Technically, the

child is entitled to refuse to consent

to age assessment procedures

without any adverse effects on her/

his asylum application. Yet in every

Nordic country children are informed

that there will be consequences if

they withhold consent, with a clear

implication that such consequences

will be negative. In Denmark, Finland

and Sweden, refusal in practice

means that the child will be treated as

an adult unless she or he can provide

strong justification for refusal. Even

when the consequences of refusal are

not made explicit, this implicit threat

would certainly seem to mitigate, if

not negate, the child’s right to refuse.

Interviews with the Danish Refugee Council, Copenhagen, 1 November 2017, and the Danish Red Cross Gribskov

Transit and Child Centre, Gribskov, 31 October 2017.

Correspondence with Danish Refugee Council, 6 February 2018.

Interviews with the Refugee Advice Centre, Helsinki, 27 October 2017, and the Norwegian Directorate of

Immigration, 6 November 2017.

Extra Stiftelsen, Redd barna, and NOAS.

Aldersvurderinger Av Enslige Mindreårige Asylsøkere. Over Eller under

18?

Oslo, 2016, p. 12.

For a full description, see: European Asylum Support Office,

EASO: Age assessment practice in Europe,

EASO,

Luxembourg, 2014.

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assessment but now allows dental and knee X-rays. The value of non-medical methods has been

downgraded and cases that are considered doubtful are now sent for medical age assessment.

In 2013, the European Asylum Support Office recommended 12 safeguards in relation to age

assessment, but while all Nordic states observe some of these, no state has put all of the safeguards

in place

(see Table 4).

For instance, neither Denmark nor Finland tries other approaches before

using age assessment techniques, and in practice all of the Nordic states focus increasingly on

medical results when determining the age of young asylum applicants. In Sweden, paediatricians

have refused to conduct examinations for age assessment purposes given the high margin of

error involved as well as the importance that seems to be placed on such examinations.

Norwegian practice has for some years been out of line with children’s rights, and in November

2017 the Norwegian state lost a case on age determination on the grounds that medical

assessments are insufficiently thorough and had been ordered without the necessary legal

procedures being followed.

As a result, all age assessments in Norway are now conducted

at institutes for forensic medicine.

100

UDI has been active in developing a better approach and

reported in June 2017 that it will implement a new technique called BioAlder (bio age) with the

aim of improving the quality of age assessments.

101

Table 4. Safeguarding procedures related to age assessment

Recommended safeguards for age assessment of young asylum seekers

Applicant gives informed consent

Applicant advised of reasons for assessment

Applicant informed of health consequences

Applicant informed of likely outcomes

Other approaches attempted first

Benefit of the doubt afforded to the applicant

Option to decline offered

Refusal does not lead to automatic registration as an adult

Support given by an independent person

Applicant informed of result

Applicant advised of right to appeal

Applicant treated as a child pending result

Source:

Adapted from European Asylum Support Office,

EASO: Age assessment practice in Europe,

EASO,

Luxembourg, 2014, annex.

<https://www.easo.europa.eu/sites/default/.../EASO-Age-assessment-practice-in-Europe.pdf>, accessed 16

February 2018 and cross-checked with current information.

Ibid., Annex 5, pp. 86–87.

Also, in 2010, Norsk Barnelegeforening (Norwegian Society of Pediatricians) concluded after intense investigation

that age assessment is an examination that “Norwegian doctors should not participate in”. See: Annexstad,

Ellen, ‘Aldersbestemmelse av mindreårige asylsøkere’, Norsk Barnelegeforening, 2010, available at <http://

legeforeningen.no/Global/Fagmedisinske%20foreninger/Norsk%20barnelegeforening/Paidos/aldersbestemmelse_

rev%2022%2010ea.pdf>,

accessed 3 February 2018. See also: The Local (Norway), ‘Oslo university quits

collaboration to assess age of asylum-seeking minors’, 3 March 2017, <www.thelocal.no/20170303/oslo-university-

quits-collaboration-to-assess-age-of-asylum-seeking-minors>,

accessed 3 February 2018.

Rosenlund-Hauglid, Signe, and Anne Stine Sæther, ‘Utlendingsnemnda tapte i rettssak om alderstesting’, VG

Nyheter, 30 November 2017, <www.vg.no/nyheter/innenriks/asyl-debatten/utlendingsnemnda-tapte-i-rettssak-om-

alderstesting/a/24200042/>,

accessed 3 February 2018.

100 Interview with the Ombudsman for Children in Sweden, Stockholm, 23 October 2017; UDI, ‘Rettsmedisinsk tar

over aldersvurderingen’, 19 December 2016, <www.udi.no/aktuelt/rettsmedisinsk-tar-over-aldersvurderingen/>,

accessed 3 February 2018.

101 UDI, ‘Ny metode for aldersvurdering av unge asylsøkere’, 21 June 2017, <www.udi.no/aktuelt/ny-metode-for-

aldersvurdering-av-unge-asylsokere/>,

accessed 14 January 2018.

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In practice, the decision to conduct age assessment is often left to the discretion of the

migration authority’s case worker.

Ideally, the case worker should base the decision on whether

the child appears age appropriate and has valid and genuine documentation to confirm her

or his age. Viewed from a child’s rights perspective, as presented in the recent Joint general

comment from the Committee on the Rights of the Child, the strict rules for what count as valid

and genuine documents, as well as the role of the case worker, can lower the standard in some

countries.

102

In a report examining a sample of 145 cases, the Swedish Migration Agency found

that the child’s age had not been investigated sufficiently in the majority of cases due to the

pressures on asylum systems.

103

In Denmark, appeals can be made to the Refugee Appeals

Court, but age assessment results cannot be challenged in the other Nordic countries, except

in the context of a wider appeal against an asylum application decision. This is important to

note since the consequence of an incorrect assessment is the total denial of the child’s rights.

In Sweden, many UASC aged 15 years or older were classified as adults without any age

assessment – medical or otherwise – having first been performed and, as a result, lost all of

their entitlements as children. It is interesting to note that when the Immigration and Asylum

Appeals Board in Iceland reviewed age assessment results as part of a wider challenge, it

interpreted them in a different way to the Directorate of Immigration. This would seem

to further strengthen the case for each country to have a specific appeals process for age

assessments.

104

Key respondents in all countries indicated that asylum applicants today are rarely offered the

benefit of the doubt, which was standard procedure as recently as a few years ago.

105

Age

assessment is not an exact science, yet it appears there is no agreement on which combination

of techniques produces the most accurate results, or on how to interpret results. In Denmark,

where age assessment typically provides an estimated age spanning several years, such

techniques should in principle be only one element of the Danish Immigration Service’s

overall age assessment, but key respondents suggest that age assessment is given almost

exclusive importance.

106

In Norway, age assessment determines the probability (expressed

as a percentage) that the individual is the age that she or he claims to be, and on this basis an

assessment is made as to whether the individual is likely to be over the age of 18.

Thus, even

if the methods of assessment were aligned across the Nordic region, the results would not

be transferable across the five countries, which could necessitate a child undergoing two or

more age assessments.

102 Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, and Committee

on the Rights of the Child. Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of

All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child

on State obligations regarding the human rights of children in the context of international migration in countries

of origin, transit, destination and return*, CMW/C/GC/4-CRC/C/GC/23 § (2017), page 2.

103 Migrationsverket, ‘Analysrapport: Tematisk kvalitetsuppföljning av åldersbedömning i samband med beslut om

uppehållstillstånd’, Stockholm, 28 November 2016, p. 10. See also: Interview with the Norwegian Directorate

of Immigration, 6 November 2017; Extra Stiftelsen, Redd Barna and Norsk Organisasjon for Asylsøkere,

Aldersvurderinger av enslige mindreårige asylsøkere. Over eller under 18?,

NOAS, Oslo, 2016.

104 Analysis of Phase I study.

105 For example, in interviews with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October

2017; the Norwegian Directorate of Immigration, 6 November 2017; and the Icelandic Directorate of Immigration,

10 November 2017.

106 Interviews with the Danish Refugee Council, Copenhagen, 1 November 2017, and the Danish Red Cross Gribskov

Transit and Child Centre, Gribskov, 31 October 2017. See also: Wenke, Daja,

Age Assessment: Council of Europe

member states’ policies, procedures and practices respectful of children’s rights in the context of migration,

Council of Europe, September 2017, pp. 23–24.

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Asylum application

In principle, the Nordic States prioritize UASC but not families to a special or speedier process.

In reality, this does not seem to work. Currently, the Finnish Immigration Service is obliged

to speed up the process for asylum-seeking children, but a representative indicated in an

interview that it was failing to meet this goal in 2015/16. From summer 2018, Finnish law

will stipulate a maximum processing time that will oblige the authorities to proceed with

the applications immediately. In Sweden, in 2017, the average time to process each asylum

application made by UASC was 578 days, and statistics from the Swedish Migration Agency

and Norway show that the processing time for asylum applications made by UASC is in fact

longer than for those made by adults.

107

The Danish Immigration Service has established an

average processing time for an asylum claim at seven months, but readily admits “most cases

take less time or longer”.

108

All of the Nordic countries ensure that a guardian or legal representative supports each

unaccompanied child throughout the asylum application process, although both the roles

and the nature of the support provided can vary across the states. In Iceland, for instance,

the Icelandic Directorate of Immigration appoints a representative for the unaccompanied

child when she or he formally applies for asylum; the Directorate also notifies the local child

welfare committee and the Government Agency for Child Protection of the application. The

Government Agency’s role is to ensure that the best interests of the child are considered

and to oversee the child welfare committee’s remit to provide accommodation, health and

education services for the child. Unfortunately, key respondents indicated that this approach

is not working in practice, often resulting in UASC in the reception centre being left to their

own devices in the company of adults, due to staff members having insufficient capacity to

properly care for them. Research carried out in 2016 also found that children need to be more

visible and active in the application process as a whole, and that the process itself must be

better aligned with the Convention on the Rights of the Child.

109

According to EU law, UASC can be granted protection status on humanitarian grounds during

their stay on EU territory. Various types of permits may be granted, depending on whether the

child is applying for asylum or is a victim of trafficking in human beings and is cooperating

with the authorities.

110

Finland and Norway both provide residence permits for unaccompanied

children who do not meet the legal requirements to enter and stay in the country, but who

cannot be returned to their countries of origin. This includes non-asylum-seeking children and

those whose claims for asylum have been rejected.

107 The average processing of an asylum application (whole population) in Sweden is 496 days. ‘Asylum Decisions,

First Time Applications, Swedish Migration Agency, 2017.’ Stockholm, 2018. Migrationsverket, ‘Statistics’, last

updated 29 January 2018, <www.migrationsverket.se/English/About-the-Migration-Agency/Facts-and-statistics-/

Statistics.html>,

accessed 3 February 2018. In Norway, the average processing time (whole population) was circa

420 days before 2015. See: Weiss, Nerina, et al.,

Opphold i asylmottak: Konsekvenser for levekår og integrering,

Fafo report 2017:07. Fafo, 2017, pp. 33–35.

108 Ny i Danmark [New to Denmark], ‘Sagsbehandlingstider i Udlændingestyrelsen’, Udlændingestyrelsen

[Danish Immigration Service], Copenhagen, 2018, <www.nyidanmark.dk/da/Ord-og-begreber/US/Diverse-US/

Sagsbehandlingstider-i-Udlændingestyrelsen>,

accessed 14 January 2018.

109 Guðmundsdóttir, Helga, ‘Upplifun og reynsla barna og foreldra sem leita alþjóðlegrar verndar á Íslandi’

[Experience of children and parents seeking international protection in Iceland], Master’s thesis, February 2016.

110 In line with Council Directive 2004/81/EC60 of 29 April 2014 on the residence permit issued to third-country

nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate

illegal immigration, who cooperate with the competent authorities, Official Journal of the European Union L

261/19, 6 August 2004.

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Reception

The analysis of the Phase I study and Phase II interviews with key respondents

111

indicate that

reception facilities in the Nordic region include:

Designated areas within mainstream reception facilities

– in Denmark, Iceland and Norway,

Foster families

– in Denmark, Iceland, Norway and Sweden,

Placement with relatives

– in Denmark, Iceland, Norway and Sweden,

Separate reception facilities for children

– in Denmark, Finland, Norway and Sweden.

Although the Nordic countries have a range of accommodation options available to them,

institutional care seems to be the most likely option for UASC. For example, in Sweden, the

municipal authorities are responsible for arranging the placement of unaccompanied children

in reception facilities; accompanied children are the responsibility of the migration authorities,

which often places such children with their families in mixed centres that also accommodate

single men. In Norway, children aged 15 years or older are referred to a reception centre, while

children under 15 years of age are usually referred to a child-care centre under the supervision

of the child protection authority. Although foster home placements have sometimes been

arranged even before a decision has been made about durable solutions for a child, most

foster care placements for children under 15 years of age occur only after asylum has been

granted. Denmark has a range of accommodation options for younger children, but those

aged 17 years or older are assigned to special units within adult reception centres. In Iceland,

only children aged 15 years or older are placed in reception centres.

Reception centres in the Nordic region are managed by a range of actors,

112

including municipal

authorities and NGOs such as the Danish Red Cross, but the specific situation in each country

requires clarification. A staff of 8 or 9 counsellors plus a director for each 10 to 15 children is the

norm in Sweden. The Finnish Child Welfare Act stipulates a maximum of seven children and a

minimum of seven employees in one residential unit – unless there several residential units in

one building – then the staff are six per unit. UASC of 16 years or above can be accommodated

in supported housing units, with a maximum of 40 children in one building and three staffers

per ten children, although recent amendments allow for deviations under certain undefined

circumstances.

113

There are no specific responsibilities assigned to reception centres in Iceland, but in the rest

of the region, staff’s main responsibilities are supervision, counselling and providing support

for children. Staff in Norwegian reception centres also ensure access, in cooperation with the

municipality, to education, language or training courses, and oversee children’s entitlements

to health care. In Finland, reception centre staff receiving unaccompanied children provide

psychological support, assist with administrative procedures, and monitor children’s individual

education plans.

111 See also: European Migration Network,

Policies, practices and data on unaccompanied minors in the EU Member

States and Norway. Synthesis Report: May 2015,

Directorate-General Migration and Home Affairs, European

Commission, Brussels, 2015. Note that neither Denmark nor Iceland participated in the study.

112 Insights from primary research.

113 Section 59, Ministry of Social Affairs and Health, Finland. “Barnskyddslag 417/2007 (Child Welfare Act), 2008/2018.

https://tinyurl.com/yczxprv6.

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Children interviewed about life in Sweden’s reception centres presented a diverse picture

– some have reported better experiences than others, although it seems that the negative

impressions outweigh the positive ones. On the relationship between reception centre staff

and children, one child said that personnel, “in the middle of the night when you lie asleep

they [staff] comes and turns on the light to check presence”.

114

Another remarked, “They do not

sit with us. We only see them in connection with food. They never sit and talk with us. They

go into their room and lock the door behind them.”

115

One child spoke of a strong connection

with one of the staff members, “He is very respectful actually, and he helps me a lot.”

116

the basic set-up of the reception facilities – where some rooms are shared with as many as

20 other children – one child noted that the shared bathrooms and toilets are often too few

and, “are so dirty that you get sick if you go in there”, while the heater in another child’s room

was broken and had not been fixed despite the cold temperatures outside. Several children

complained of a shortage of clothes “Only now after 30 days someone came from another

center and they gave me a jacket.”

117

Children have also described being fearful and having a

strong need for comfort and family care, which is often lacking.

118

Barn på flykt,

p. 14.

Ibid., p. 15.

Ibid.

Ibid., p. 14. See also the impressions of attendees of reception and asylum centres in Norway, provided both

by children and also their parents: Weiss, Nerina, et al.,

Opphold i asylmottak: Konsekvenser for levekår og

integrering,

Fafo report 2017:07. Fafo, 2017, pp. 44–57.

118 Barnombudsmannen,

Ensamkommande barn som försvinner,

Barnombudsmannen, Stockholm, 2017, p. 10,

available at <www.barnombudsmannen.se/globalassets/dokument-for-nedladdning/publikationer/publikationer2/

rapport_ensamkommande_barn_som_forsvinner_2017.pdf>,

accessed 3 February 2018.

114

115

116

117

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The dearth of data on practice in reception

Lower standards in reception centres

centres makes it difficult to identify where

may be accepted by child-rights duty

good practice is happening. There are also

bearers, as such accommodation is

questions to be answered about the criteria

seen as temporary. In reality, however,

used to assess good practice and whether

families are often unable to move on

from the centres and can spend years

standards applied to reception centres are

living in unsuitable accommodation.

equivalent to those applied to facilities and

So, while institutionalization has been

services for other vulnerable children. For

rejected throughout Europe as an

instance, the European Migration Network

acceptable or effective response to

recommends the Norwegian reception centres

vulnerable children, asylum-seeking

children in the Nordic countries can still

as a model of good practice,

119

although

end up living in unsuitable institutions

research conducted in Norway in 2015 found

for months or even years, with no clear

that living standards were very basic in such

idea of when they may resume normal

120

family life.

facilities. The 2017 Supplementary Report

to the Committee on the Rights of the Child

notes that staff seemed unaware of the

high levels of conflict at some reception centres.

121

Although the EU has laid down specific

standards, criteria and regulations for reception centres,

122

a great variation exists between

and within the Nordic countries with regard to the type of reception facilities offered and the

actors involved in providing such accommodation.

The Ombudsman for Children in Norway has raised concerns about children living in reception

centres for prolonged periods and it noted 6,543 such cases as at August 2016. Among this

number, 503 children had had asylum applications pending for more than three years,

123

while 286 children held residence permits but were forbidden from taking up residence in a

municipality and instead had to live at the reception centre for an unspecified period.

124

It is important to note in relation to the provision of reception, care and accommodation services

for asylum-seeking children that the European Court of Human Rights has ruled that a state may

not absolve itself of the duty to protect children by delegating the administration of services

– such as care or education – to private individuals.

125

This emphasizes a state’s obligation to

ensure that all children, irrespective of their legal status, enjoy the same standards of care

and protection as those stipulated under national child protection and welfare legislation. The

European Court has also developed a substantial body of case law regarding the protection of

children against violence in all settings, and it has identified clear duties incumbent on states

whenever children are placed in institutions under their authority.

126

This stance would seem to

argue for equal standards for reception centres and child welfare homes in the Nordic states.

119

Policies, Practices and Data on Unaccompanied Minors in the EU Member States and Norway.

120 Norwegian University of Science and Technology,

Social Research Report,

2015, cited in

The UN Convention on

the Rights of the Child. Supplementary report – Norway,

p. 48.

121

The UN Convention on the Rights of the Child. Supplementary report –

Norway, p. 48.

122 Directive 2013/33/UE of the European Parliament and of the Council of 26 June 2013 laying down standards for the

reception of applicants for international protection (recast), Official Journal of the European Union L 180/96,

29 June 2013. For a fuller discussion of reception accommodation, see: European Migration Network,

Organisation of Reception Facilities in Different Member States,

European Commission, Brussels, 2014.

123

The UN Convention on the Rights of the Child. Supplementary report – Norway,

p. 48.

124 Figures from the Norwegian Directorate of Immigration (UDI) cited in

The UN Convention on the Rights of the

Child. Supplementary report – Norway,

p. 48.

125 European Court of Human Rights, Costello Roberts v. the United Kingdom, No. 13134/87, 25 March 1993, para. 27.

126 European Court of Human Rights, Nencheva and Others v. Bulgaria, No. 48609/06, 18 June 2013, pp. 249–250.

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The Ombudsman for Children in Norway notes that the standards set for reception centres in

relation to staffing, expertise, inspections and complaints mechanisms are far less stringent

than those governing child welfare institutions.

127

Similar concerns were voiced by personnel at

the Danish Red Cross Gribskov Transit and Child Centre in Denmark.

128

Iceland’s main reception

centre at Hafnarfjörður in Reykjavik has no personnel besides a single guard, so UASC are left

to fend for themselves. One wing is devoted to families and UASC, but other asylum seekers

including single men reside in the same building. These are not the best possible conditions

for asylum-seeking children, yet Iceland’s Directorate of Immigration and Ombudsman for

Children report that the Government Agency for Child Protection has not yet responded to

their enquiries about creating a proper reception centre with adequate staff and facilities.

129

Part of the difficulty seems to be that responsibility for children’s reception centres lies with

asylum authorities rather than with child welfare authorities, and that standards and safeguards

are set at lower levels for asylum facilities. In Norway, for instance, the requirements for reception

centres for unaccompanied asylum-

seeking children are set out in Norwegian

Directorate of Immigration directives,

Good Practice 4: Finland

while the requirements for child welfare

In Finland, Save the Children

establishments are stipulated in the Child

implemented a project to establish child-

friendly spaces at a few selected reception

Welfare Act.

The differences that result for

centres. The project has been a success

children starkly illustrate the importance

because it provides a breathing space, not

of national child protection and welfare

only for children in the centre, but also for

authorities having primary ownership

the adults there, who can play with their

children in the space, or simply enjoy the

of migrant children’s issues rather than

community feeling that builds around it.

migration or asylum authorities, and of

Source: Interview with Save the Children Finland, Helsinki,

monitoring and enforcing equivalence in

26 October 2017.

the country’s responses to asylum-seeking

children and to other vulnerable children.

Durable solutions

None of the available data indicate that accompanied children are given any special weight

within national asylum processes. In fact, the case of an accompanied child is considered

only within the general context of her or his family’s asylum application. Thus there is broad

agreement that accompanied children remain invisible in the asylum process, even where

a child may have grounds for her or his own asylum claim.

130

The Ombudsman for Children

in Sweden and the Swedish Migration Agency both found that accompanied children were

not heard in the process.

131

Although it is clearly in a child’s best interests to find a durable

solution as quickly as possible, the time frame for the asylum determination procedure varies

127

The UN Convention on the Rights of the Child. Supplementary report – Norway,

p. 48.

128 Interview with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017.

129 Interviews with the Icelandic Directorate of Immigration, 10 November 2017, and the Ombudsman for Children,

Reykjavik, 10 November 2017.

130 For example, interviews with the Icelandic Directorate of Immigration, 10 November 2017, and the Danish Refugee

Council, Copenhagen, 1 November 2017.

131 Barnombudsmannen,

“Vi lämnade allting och kom hit”: Röster från barn och unga på flykt,

Stockholm, 2017,

pp. 32–33.

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across the Nordic region and can take up to two years.

132

There appears to be no set time limit

for processing claims and many asylum-seeking children and families spend long periods

in a kind of official limbo awaiting a final determination.

The durable solutions considered

for children in the Nordic countries include: return and reintegration of the child to her or his

country of origin; the granting of international protection status or another legal status to

enable the child to integrate in the host country; and resettlement of the child to a third country.

In all of the five countries, a BID will be undertaken to support the competent authority’s

decision on a durable solution for the child. In the Nordic states, family reunification is one

of the major factors influencing which durable solution is assigned, and it can be seen as the

deciding factor, whether or not the child actively seeks, or even wants, reunification.

In Norway, IDMi, the Directorate of Diversity and Inclusion, takes responsibility when

integration is selected as the durable solution. In Finland, when UASC with international

protection status come of age, a multi-sectoral plan is drawn up. This plan includes sports

and hobby activities, private tuition and support for school attendance. The local Employment

and Economic Development Office and/or the municipality also draws up an integration plan

that includes integration training for the individual as well as other measures and services to

support her or his integration, employment and inclusion.

The Nordic states provide for the possibility of the voluntary return of unaccompanied children,

and Finland, Norway and Sweden have specified the special circumstances under which UASC

may return voluntarily to their countries of origin. The Return Directive

133

stipulates that before

issuing a return decision in respect of an ‘unaccompanied minor’, an EU member country shall

grant “assistance by appropriate bodies other than the authorities enforcing return” and give

“due consideration to the best interests of the child”. The Return Directive allows for voluntary

return as well as for resettlement to a third country, but before enforcing the removal of any

UASC, member countries “shall be satisfied that he or she will be returned to a member of his

or her family, a nominated guardian or adequate reception facilities in the State of return”.

134

Iceland and Norway, though not members of the EU, are bound by the Return Directive as part

of the Schengen acquis.

In all Nordic countries, the responsible authority that is considering the return and reintegration

of an asylum-seeking child will perform an enquiry into the situation and conditions in the

child’s country of origin, paying specific attention to the best interests of the child. It is unclear

however, by what means the authorities inform themselves of the conditions in the countries

of origin, and particularly the conditions in the receiving institutions or child-care centres of

those countries. The UNICEF National Committee in Sweden has in the past developed child-

specific country of origin reports that describe the situation of children in the countries of

origin of asylum-seeking children, and these can be used to inform decisions about return.

135

132 Various interviews, for example with the Ombudsman for Children in Sweden, Stockholm, 23 October 2017.

133 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards

and procedures in member states for returning illegally staying third-country nationals, Official Journal of the

European Union L 348/98, 24 December 2008.

134 Ibid.

135 Child Notices <https://www.unicef.nl/ons-werk/nederland/child-notices>, accessed on 19 february 2018.

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A range of agencies facilitate family

tracing and assessment, which enable

the authorities to verify that a child will

be handed over to a parental authority

on their return. Children under 15 years

of age who are returned from Finland are

escorted by the International Organization

for Migration. If a parent or guardian is not

available, the child can be handed over

to an appropriate institution or child-care

centre in the country of origin. Finland,

Norway and Sweden provide reintegration

support and have monitoring systems in

place. Finland has also developed specific

guidelines and internal procedures on

return and reintegration assistance for

UASC, and it operates on the basis of

individual reintegration plans tailored

to the specific child. Other Nordic states

provide support through block grants to

projects, institutions or agencies in the

countries of return.

Good Practice 5: Finland

In Finland, personalized plans are

developed for UASC with a view to

tackling the challenges that they may

face. These plans are drawn up together

with the child and include:

�½

A client plan – which is drawn up

for all asylum-seeking UASC by a

social worker at the accommodation

unit, taking into account the child’s

situation and needs for support. The

client plan broadly defines the means

and measures aimed at yielding

a positive impact on the child’s

situation.

A care and upbringing plan – which

complements the client plan. It is

developed by an assigned counsellor

at the accommodation unit. In this

plan, the aforementioned means and

measures are made concrete through

everyday actions.

�½

Source: European Migration Network,

Policies, Practices and

Data on Unaccompanied Minors in the EU Member States

and Norway. Synthesis report: May 2015,

Directorate-General

Migration and Home Affairs, European Commission, Brussels,

2015, box 11.

National legislation in the Nordic

countries allows for the forcible return

of unaccompanied children but this is seldom carried out. Interestingly, in Finland, there

is a Supreme Administrative Court Decision whereby the Finnish Immigration Service and

the Helsinki Administrative Court decided to return a 12-year-old unaccompanied minor to

Iraq, travelling under the custody of his uncle. Only when the case reached the Supreme

Administrative Court, was it appraised that the Finnish Immigration Service could not consider

a relative who had applied for asylum in Finland together with the applicant as the child’s legal

guardian.

136

Since there were no safeguards for the security of the return of the applicant or for

the adequate reception of the child, the applicant could not be returned to his country of origin.

Norway considers the forced return of unaccompanied children on a case-by-case basis. In

response to an ad hoc query made by the European Migration Network in 2017 on forced

returns to Afghanistan,

137

both Norway and Sweden implied that such returns were infrequent

(without providing figures). Sweden responded that while, in principle, there are no legal

restrictions to prevent the forced return of UASC, it will only return such children to a member

of their family, a nominated guardian or adequate reception facilities. Norway indicated that it

does not forcibly return to Afghanistan unaccompanied children or women who do not have

access to a support network.

Yet asylum seekers are being returned from the Nordic states

to their countries of origin as internally displaced persons. UASC are generally not returned

139

Supreme Administrative Court Decision (Korkein hallinto-oikeus) of 10 November 2017 – KHO:2017:173,

Finland: Supreme Administrative Court, 10 November 2017. available at: <http://www.refworld.org/cases,FIN_

SAC,5a4e46f44.html>,

accessed 14 February 2018.

137 European Migration Network, ‘EMN Ad-Hoc Query on Forced Returns to Afghanistan, Requested by Bernd

PARUSEL on 15th September 2017’, EMN, 8 November 2017.

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until they are 18 years of age, but accompanied children have been returned from the Nordic

region with their families.

In both Norway and Sweden, a temporary permit is used to protect unaccompanied minors

without a safe home situation from forcible return until they reach the age of 18, at which time

they may be returned. Neither country provided an up-to-date figure for forcibly returned

UASC, however, and it should be noted that European Migration Network data indicate that

between 2009 and 2013 Norway forcibly returned 457 UASC (or former UASC) while Sweden

returned 95.

138

Clearly, practice in this area needs to be better understood. The tightening of

asylum rules and regulations has also led to UASC in Finland being issued with temporary

permits that aim to keep the child in the country until she or he can be sent home at the age

of 18. As respondents in Finland put it, “this puts you in real danger of deportation if you

are 17 years of age.”

139

Research has noted that accompanied children in Sweden experience

‘resignation syndrome’ due to the stress and anxiety caused by the uncertainty and fear

surrounding their impending return.

140

In 2016, Norway eliminated the ‘reasonability’ criteria

from its international protection standards, allowing authorities to reject UASC and families and

return them to their countries of origin, in line with the so-called ‘internal flight alternative’.

141

New rules in Denmark expose children facing return to the poor living conditions found in

so-called departure centres. Children and families denied asylum but who cannot be forcibly

deported from Denmark – for example, due to a lack of identity documents– may have to live

in departure centres for a long time. In 2013, the former Danish Minister for Justice, Morten

Brødskov, said of the Sjaelsmark departure centre that “asylum seekers will, among others, be

motivated to leave [the country] by removing their cash benefits in favor of a food scheme”.

142

A report on returns from Norway, based on interviews with asylum seekers who had been

deported, found that the implementation of returns is typically a very scary experience.

143

One

boy said of the practice of officers from Norway’s National Police Immigration Service letting

themselves into a family’s accommodation with a key when the family is to be deported, “they

should not open the door themselves, but rather ring the doorbell many times until we are

awake and can let them in ourselves.”

144

Meanwhile, a girl remarked, “they could be next to us,

but not walk three [police officers] behind us, in front of us and on our sides and make a circle

around us.”

145

Seven out of eight families were detained for up to 24 hours awaiting return,

while one family was detained for more than a week.

146

138 European Migration Network,

Policies, Practices and Data on Unaccompanied Minors in the EU Member States

and Norway. Annexes to the synthesis report: May 2015,

Directorate-General Migration and Home Affairs,

European Commission, Brussels, 2015, Annex A1.14.

139 Interview with the Central Union for Child Welfare, Helsinki, 26 October 2017.

140 Sallin, Karl, et al., ‘Resignation Syndrome: Catatonia? Culture-Bound?’,

Frontiers in Behavioral Neuroscience,

vol. 10, 29 January 2016.

141 Schultz, Jessica,

The Internal Flight Alternative in Norway: The law and practice with respect to Afghan

families and unaccompanied asylum-seeking children. A mini-assessment commissioned by UNHCR,

Chr.

Michelsen Institute, Oslo, 2017, pp. 2–4, available at <www.unhcr.org/neu/wp-content/uploads/sites/15/2017/11/

SchultzIFAStudyJune2017-1.pdf>,

accessed 3 February 2018.

142 Hergel, Olaf. ‘Børns Vilkår: Forholdene på Sjælsmark er kummerlige.’

Politiken.

29 October 2017. <https://politiken.

dk/indland/art6180917/Forholdene-p%C3%A5-Sj%C3%A6lsmark-er-kummerlige>.

143 Extra Stiftelsen, Redd Barna and Norsk Organisasjon for Asylsøkere,

Barn og foreldres opplevelse av tvangsretur.

«Jeg har ikke gjort noe galt»,

NOAS, Oslo, 2017.

144 Ibid., p. 22.

145 Ibid., p. 23.

146 Ibid., p. 19.

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Norway recorded an increase in both 2016 and 2017 in the number of unaccompanied minors

granted temporary residency. The uncertainty and insecurity experienced by such children

undoubtedly cause unnecessary stress. Indeed, the Ombudsman for Children in Norway has

noted growing concerns about mental health problems, self-harming, suicidal tendencies

and (secondary) school absence among this group, and it points to the need for more robust

mental health care services.

147

2.4 Education

General context

National law in the Nordic countries guarantees every child access to basic education, and

attendance at school is free and compulsory, but asylum-seeking children’s entitlements do

not seem to be fully enshrined in law in all five states. In Iceland, for example, the asylum-

seeking child’s educational entitlements are negotiated in a contract between the Icelandic

Directorate of Immigration and a municipality rather than in the Compulsory School Act.

While education is a centralized function in all five countries, only Sweden has prioritized

newly arrived migrants in national education strategies, and responsibility for the provision of

education services (including quality control and supervision of professional practice) across

the Nordic region has been devolved to local authorities. While this allows for greater flexibility

in countries’ responses to asylum-seeking children, it can also result in barriers to access at

the local level. For instance, each municipality works to its own time frame for the provision of

education services and has its own interpretation of its obligations under national legislation.

Education systems in all five Nordic countries adopt an inclusive and gender-sensitive

education model, and teachers working at all levels are familiar with the concept and practice

of inclusive education. Yet several studies have revealed shortcomings in education provision

and quality in the region. A 2014 report by the Swedish Schools Inspectorate noted that while

it is possible for newly arrived children to receive a good education, this is dependent upon all

of the staff at a school taking shared responsibility for this.

148

Less than a quarter of surveyed

students attend such schools, leaving the vast majority in less favourable situations, and the

Ombudsman for Children in Sweden has demanded that asylum-seeking children receive

better access to the Swedish school system.

149

Perspectives vary across the region when it comes to the inclusion of asylum-seeking children

in schools. Iceland tries to place newly arrived children in community schools within six

weeks, while in Denmark the process takes far longer as basic services are initially provided

in a reception centre. Such variation appears to arise from different cultural traditions and

147

The UN Convention on the Rights of the Child. Supplementary report – Norway,

p. 48.

148 Skolinspektionen,

Utbildningen för nyanlända elever,

Kvalitetsgranskning Rapport 2014:03, Skolinspektionen,

Stockholm, 2014, pp. 6–7. The review included 10 schools and 35 children.

149 Ibid.;

Barn på flykt,

p. 18. For a slightly dated but excellent evaluation, see: Brendler-Lindquist, Maria, and Anders

Hjern,

Reception of Asylum Seeking and Refugee Children in the Nordic Countries: The Swedish report,

Nordic

Network for Research on Refugee Children, Stockholm, 2010, pp. 10–19.

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social perceptions of children. In Denmark, delayed enrolment stems from a genuine concern

to protect children from failure. The perception is that UASC in particular are very vulnerable

and should delay attending school until they have acquired the necessary skills, e.g. language

skills, to integrate into school at a reasonable level.

150

In Iceland, the perception is that the

sooner a child is in school and interacting with her or his peer group, the better it is for the

child’s development.

151

Municipalities in Iceland are not obliged to provide services to asylum

seekers, however, and only three municipalities have agreed to do so. Key respondents also

reported that miscommunication between national and local authorities can occur, with one

informant remarking that she sometimes “had to track down the immigration authorities to

reach clarity about children’s access to education.”

152

However, since then the municipalities

and immigration have managed to secure that all children will have access to school in the

municipality where they are hosted.

153

Practices in instruction also vary across the Nordic countries. Research has shown that children

without a formal education in their mother tongue but who have studied in Denmark have

greater fluency and abstract comprehension and a better vocabulary in Danish as their second

language than in their mother tongue.

154

Nevertheless, children are taught almost exclusively

in Danish, while tuition in the child’s mother tongue is at best provided as a secondary subject

or secondary learning.

155

In Finland too, the child’s mother tongue is ranked as a secondary

language, although a study found that 40 per cent of students from immigrant backgrounds

had “mastered the [Finnish] language so poorly that it hinders their studies and completion

of their basic education”.

156

In contrast, when Sweden revised its educational laws in 2016, it

awarded children the right to receive tuition in their mother tongue if they felt unable to follow

lessons in Swedish, and the same approach applies to children in Norway.

157

A Europe-wide study conducted in 2013 by PPMI (Public Policy and Management Institute)

found that the most effective educational model for newly arrived children is an inclusive

approach that provides them with equal opportunities to develop, as much as possible, within

the mainstream education system, while guaranteeing them additional or remedial support,

as necessary, in all areas (not only language teaching).

158

PPMI recommended that European

policymakers pay more attention to the overall structure of the education system and its effects

on children’s inclusion than to individual support measures targeted at newly arrived children.

150

151

152

153

154

155

156

157

158

Interview with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017.

Interview with the Ombudsman for Children, Reykjavik, 10 November 2017.

Interview with Hafnarfjörður Municipality, Reykjavik, 9 November 2017.

Ibid.

Jessen and Montgomery,

Reception of Asylum Seeking and Refugee Children in the Nordic Countries: The Danish

report,

p. 29.

Ibid.

Opetusalan Ammattijärjestö OAJ [Trade Union of Education in Finland],

Integration Compass: How do we ensure

that every immigrant has access to education and working life?,

OAJ, Helsinki, 2015, p. 6, available at <www.oaj.fi/

cs/oaj/Kotoutumiskompassi>,

accessed 3 February 2018. Also, interview with Save the Children Finland, Helsinki,

26 October 2017.

Skolverket [Swedish National Agency for Education], ‘Studiehandledning på elevernas modersmål’, Stockholm,

2016, <www.skolverket.se/skolutveckling/larande/nyanlandas-larande/studiehandledning-1.205961>,

accessed 14 January 2018; Kunnskapsdepartementet, ‘Lov om grunnskolen og den vidaregåande opplæringa

(opplæringslova). Kapittel 2. Grunnskolen,’ Lovdata, LOV-2017-06-16-63, 1998, <https://lovdata.no/dokument/NL/

lov/1998-07-17-61/KAPITTEL_2#%C2%A72-8>,

accessed 14 January 2018.

Public Policy and Management Institute,

Study on Educational Support for Newly Arrived Migrant Children. Final

report,

Publications Office of the European Union, Luxembourg, 2013.

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Early childhood education

At least one year of Early Childhood Education (ECE) is the norm in the Nordic region, although

this is not compulsory in Norway, Sweden or Iceland. Local authorities are responsible for

both ensuring adequate provision of ECE and maintaining quality standards, so the quantity

and quality of available ECE facilities can vary between municipalities. The Phase I analysis

indicates that although all five Nordic countries try to facilitate child asylum seekers’ access to

ECE, their entitlement is not necessarily enshrined in law; instead it is negotiated in regulations

or in the contract between a receiving municipality and the asylum authority. In Norway, a child

accommodated in a reception centre is not entitled to a place in an ECE facility, and a court case in

Finland has confirmed that municipalities are not obliged to offer ECE places to asylum-seeking

children. ECE facilities are instead provided in the reception centres. Other Nordic countries

allow asylum-seeking children to be placed in community-based ECE facilities. In Denmark,

ECE is provided either through facilities located in the community or in reception centres.

ECE programmes in reception centres do not always meet the same standards of quality

as community-based services, and accountability levels and mechanisms vary between

and within the Nordic countries. This opens the door to poorer-quality services and reduced

benefits for the youngest asylum-seeking children, which is unacceptable given the existence

of clear standards of good practice in ECE and sufficient guidance on how to achieve

such standards.

Basic education

Asylum-seeking children are entitled, and helped, to access basic education in all of the Nordic

states, although restrictions and caveats do apply. In Norway, school attendance is compulsory if

a child is expected to be in the country for three months or more.

159

In Denmark, it is the reception

centre’s responsibility to procure a school place for a child. In Finland, the local authority has a

statutory obligation to arrange basic education for all children; asylum-seeking children are allowed

to go to school but it is not compulsory for them, and the right to attend school is connected

to residency. Such caveats can delay a child’s access to mainstream education for months.

Delays in enrolling children in school are often explained by the requirement for language

training, but this need not be separate to general education and could be provided in mainstream

schools rather than in reception facilities. In Finland, language tuition is provided in schools,

though sometimes in separate classes; in Denmark, it is provided in reception centres and such

tuition “is not validated as school education in Denmark or any other country.”

160

Integration in

school life as soon as possible is essential to repair the gaps in a child’s education and to foster

her or his long-term integration. It is also a vital element of the kind of normalizing strategy

that should be available to all asylum-seeking children to strengthen their mental health, build

their resilience and provide ongoing psychosocial support.

161

In a 2016 submission, CARAS

159 Norwegian law also allows for home schooling.

160 Jessen and Montgomery,

Reception of Asylum Seeking and Refugee Children in the Nordic Countries: The Danish

report,

p. 25.

161 Interview with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017. See also: Redd

Barna, Fellesorganisasjonen and Norsk Organisasjon for Asylsøkere,

En gjennomgang av midlertidig opphold til

enslige mindreårige asylsøkere,

NOAS, Oslo, 2017.

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(Community Action for Refugees and Asylum Seekers) highlighted the consequences of delays

in accessing education, “The delays in securing a place have severe knock-on impacts; young

people’s mental health deteriorates, and relationships with support workers are often negatively

affected.”

162

Full and early access to mainstream schooling is sufficiently justified by the proven

educational benefits to children alone, but the positive impact of regular school attendance

on children’s health, welfare and development should also be considered a crucial factor in

determining the educational model offered to asylum-seeking children in the Nordic region.

Support services

The integrated approach to education calls for the provision of support services to ensure

that schools can offer equal opportunities for asylum-seeking children to develop, as much

as possible and as early as possible, within the mainstream education system. Additional

or remedial support must be provided, as necessary, in all areas – support must not be

limited to tuition in the host country’s official language. The PPMI research notes that it is

important to tailor educational support to

a child’s individual needs and to ensure its

provision throughout the full cycle of the

Good Practice 6: Sweden

child’s education and across all key areas,

Sweden seems to give the strongest legal

including linguistic and academic support,

entitlement to asylum-seeking children.

parental and community involvement, and

The Swedish School Act stipulates the

intercultural education.

163

same right to education for asylum-seeking

PPMI notes that Denmark and Sweden

operate a “comprehensive support

model”.

164

This implies that their education

systems are inclusive and provide

continuous

language

development

support, teaching support and assistance

in transferring students to higher levels

of education. Both education systems are

decentralized, which promotes school

autonomy and a strong focus on working

with parents and local communities.

Intercultural learning is mainstreamed into

the national curriculum in both countries,

and local education authorities emphasize

a positive school environment through

training for teaching staff and intercultural

initiatives. In Finland, a local authority

may provide or pay for before- and/or

children as for Swedish children. Once

a child has been registered and given

accommodation, she or he has a right to

access education. This means that the child

is entitled to receive education that meets

the national requirements in all subjects

taught under the Swedish school system.

As in other Nordic states, however, the

child is not required to attend the offered

education during the asylum process.

The right to education applies even if a

decision to reject an application for asylum

is announced, until such time as the child

has physically left Sweden. Despite the

good practice demonstrated, the European

Council on Refugees and Exiles has also

noted significant delays in Sweden, despite

its “pedagogical expertise in the integration

of children who do not speak the native

language of the host country.”

Source: European Council on Refugees and Exiles, quoted in

Children in Crisis: Unaccompanied migrant children in the EU,

European Union Committee, House of Lords, London, 2016, p. 49.

162 Written evidence from CARAS to the United Kingdom House of Lords (2016), cited in

Children in Crisis:

Unaccompanied migrant children in the EU,

European Union Committee, House of Lords, London, 26 July 2016, p.

47.

163

Study on Educational Support for Newly Arrived Migrant Children.

164 Ibid.

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after-school activities for students in the first and second year of secondary schools in the

municipality and for students with special needs in other year groups. Providing such activities

is not a statutory duty, however, and a fee may be charged to students wishing to take part in

them. The same is true in Iceland, where the Minister of Education, Science and Culture has

not yet introduced regulations specifying children’s entitlements beyond access to ECE and

basic education.

On arriving in Denmark, unaccompanied children live for 8 to 10 weeks in a special ‘receiving

house’ where pedagogues develop with each child an individual education plan that maps

out the child’s school attendance, after-school activities and support needs. In Finland, an

individual plan is also drawn up for each unaccompanied child, but this is done by a social

worker while the child is in the reception centre.

165

Policies, Practices and Data on Unaccompanied Minors in the EU Member States and Norway,

Box 11: Good

practice example of non-material reception conditions tailored to the individual and specific circumstances of

UAMs [unaccompanied minors] in Finland.

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Secondary/vocational education and training

The successful integration of migrants and refugees in employment is generally acknowledged

as the single most important determinant of their overall net fiscal contribution to a host

country.

166

It enhances the sustainability of national health, welfare and social protection

systems in host countries at the same time as it expands an individual’s access to services. For

all of these reasons, the European Commission recommends the early integration of refugees

in vocational education and training initiatives and programmes.

167

It is particularly important

to promote early intervention initiatives for vulnerable young people not in employment,

education or training (NEETs) – whether they are nationals, refugees or migrants – to support

their swift integration in education, apprenticeships, traineeships or the labour market.

In Denmark and Finland, education is guaranteed for any child only until the age of 16, leaving

older asylum-seeking children with uncertain access to mechanisms for integration and

inclusion.

168

Children’s legal entitlement to education beyond basic education is unclear in the

Nordic region, although asylum-seeking children are supported to attend upper secondary

school. Local authorities in Finland may provide education to persons other than those in

compulsory schooling, but this is not a statutory duty. The law in Iceland does not guarantee

education for older children, but there is an obligation to offer training, although this is not

always respected in practice; ministerial regulations clarifying access to vocational education

and training are still pending. In June 2014, the Norwegian Parliament amended the Education

Act to give children awaiting the processing of an asylum application the right to receive upper

secondary education. Young people who remain in Norway after receiving a final rejection of

an application for asylum have no legal entitlement to upper secondary education, although in

practice many local and regional authorities allow them access regardless of their legal status.

Denying young asylum seekers access to vocational training is a serious setback to young

people and a breach of Article 28 of the Convention on the Rights of the Child, which identifies

vocational training as a formative part of a young person’s education. One serious obstacle to

higher education, employment and training opportunities for refugee and migrant children

is the widespread failure to formally recognize school/college certificates and vocational

qualifications acquired in their countries of origin.

The analysis of the Phase I study indicates that Finland has no legal procedure for validating

a child’s previous education, although previous education is documented during the

development of the child’s individual care plan. Accreditation mechanisms are available in

Iceland, though these are not yet specified in the Asylum Act or in ministerial regulations.

In Norway, the accreditation process is complex and the onus is on the student to supply

the required evidence to enable access to upper secondary education. In Sweden, it is the

school’s responsibility to assess a child’s educational capacity and previous experience, and

this can involve moving the child between classes before finding the right fit.

Given its global

166 Aiyar, Shekhar, et al.,

The Refugee Surge in Europe: Economic challenges,

IMF Staff Discussion Note, SDN/16/02,

International Monetary Fund, January 2016; Directorate-General for Economic and Financial Affairs, European

Commission,

An Economic Take on the Refugee Crisis,

cited in European Commission,

Action Plan on the

Integration of Third Country Nationals,

European Commission, Brussels, 7 June 2016.

167

Action Plan on the Integration of Third Country Nationals.

168 Interviews with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017, and the Espoo

Reception Centre, Espoo, 30 October 2017.

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reach and expertise in education, UNICEF is in a unique position to facilitate information and

knowledge exchange between education systems in sending and receiving countries, and to

develop transnational mechanisms to speed up the accreditation of qualifications between

countries and to better inform teachers about children’s previous learning experience.

2.5 Health

Medical and health care

Asylum seekers are guaranteed access to emergency health care in all of the Nordic countries,

but the range of services included under emergency health care varies across the region. An

individual’s legal status may also restrict access to general mother and child health services in

the Nordic states. Under EU law, member countries must provide refugee and asylum-seeking

children with access to appropriate health care, on an equal basis as nationals, but this care

can be limited to ‘core benefits’,

169

which are not defined consistently across countries. In

Sweden and Finland, national law grants asylum-seeking children the same entitlement to

health care as national children; in Norway,

child asylum seekers’ legal entitlement to

health care is restricted to ‘necessary medical

All the Nordic states guarantee a

treatment and health care’.

‘package’ of health services and

Unaccompanied children in all five Nordic

countries are entitled to emergency treatment

and basic medical care (which includes dental

care and mental health care) but they do not

necessarily have full and equal access to child

health and development services.

170

Children

who have remained in country without

applying for asylum and those who have

remained after receiving an order to leave are

legally entitled to emergency health care in all

five Nordic states, but only Sweden

171

grants

such children the same level of health care as

the children of its nationals.

entitlements for pregnant women,

mothers, infants and children, and

this should act as the minimum

‘core package’ offered to asylum-

seeking families. Including asylum-

seeking families in the national

mother and child health, child

development and vaccination

systems as early as possible will

not only support the child’s health

and development, but is also likely

to benefit the host country in terms

of improved public health and

reduced costs in secondary care

interventions in later years.

169 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third

country nationals or stateless persons as refugees or as persons who otherwise need international protection and

the content of the protection granted, Official Journal of the European Union L 304/12, 30 September 2004, Art. 29.

170

Policies, Practices and Data on Unaccompanied Minors in the EU Member States and Norway. Annexes to the

synthesis report,

Table A3.4, pp. 50–53.

171 Keith, Lilana, and Michele LeVoy,

Protecting Undocumented Children: Promising policies and practices from

governments,

Platform for International Cooperation on Undocumented Migrants, Brussels, February 2015.

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Key respondents confirmed that clear and

The practical barriers to health care

explicit firewalls have not been established

include lack of medical records and

between asylum and health services in every

confusion about entitlements among

Nordic country.

172

This has proved to be a real

both families and service providers.

barrier to child asylum seekers accessing

Since responsibility for health care

delivery in the Nordic states has been

health services in other countries,

173

and

delegated to the local level, there is a

the situation in the Nordic region must be

risk of inconsistent interpretations of

remedied urgently.

This is especially the case

which services mothers and children

can access. Key respondents indicated

for the children aged 15–17 years who are in the

that there can be reluctance at the

care of the asylum authority in most countries.

local level to provide services. For

In Denmark, for instance, most health services

instance, the Icelandic Directorate

of Immigration noted that it had

are provided at the reception centre, either

witnessed the reluctance of municipal-

by a nurse based there or during the visiting

level child protection services to

hours of a local general practitioner. Where the

provide services to asylum seekers

required health services cannot be provided

before an age assessment had been

conducted.

at the reception centre, a specialist evaluation

(e.g. written by a doctor, hospital or dentist)

must be sent along with the centre operator’s

application for the health services to the Danish Immigration Service for approval. The Danish

regulations stipulate that any treatment must be “necessary”.

174

In addition, the Danish Red

Cross and Danish Refugee Council have established free health clinics – which undocumented

minors can access. Regulations remain problematic as they can foster misunderstandings at

the local level. However, the Danish Parliamentary Ombudsman, following a monitoring visit

to Hundstrup Children’s Centre, called for equivalence in the services provided here and to

all children in Denmark, urging that, “the centre ensures that the health care offered in future

meets the rules, amongst others, that asylum-seeking children as a rule have the same rights

to preventive health schemes and health

related services”.

175

Studies make it clear,

however, that cost is usually the main barrier

It seems clear that the majority of

to health care for migrant and asylum-seeking

asylum-seeking children in the Nordic

families across Europe

176

. It may therefore be

region are at heightened risk of

violence, abuse and exploitation and

necessary to clarify the patterns of payment

need to be prioritized by those national

and reimbursement in all five Nordic countries.

child protection systems whose

Reviewing payment patterns can also help to

overarching goal is to protect children

from violence. Only Sweden has

determine the strength of firewalls between

prioritized asylum-seeking children in

asylum and health services, as it is often

its national child protection strategy.

the asylum authority which must approve

payment for treatment.

172 For example, in interviews with the Danish Immigration Service, Copenhagen, 1 November 2017, and the Finnish

Immigration Service, Helsinki, 26 October 2017.

173 Byrne, Kevin,

Law, Policy and Practice Affecting Refugee and Migrant Children in Europe,

[Unpublished paper].

174 Social- og Indenrigsministeriet,

Meddelelse om servicelovens anvendelsesområde i forhold til asylansøgere og

udlændinge uden lovligt ophold,

Copenhagen, 1 July 2016.

175 Folketingets Ombudsmand, ‘Udlændingestyrelsen følger op på ombudsmandens anbefalinger til Børnecenter

Hundstrup’, Copenhagen, 2 February 2017, <http://www.ombudsmanden.dk/find/nyheder/alle/hundstrup/>,

accessed 3 February 2018.

176 Keith and LeVoy,

Protecting Undocumented Children;

Spencer and Hughes,

Outside and In.

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Assessing the extent to which asylum-seeking

mothers and children can access health and

development services in the Nordic region is

so difficult primarily because there is neither

a clear understanding of what constitutes the

‘core package’ of health services available to

asylum-seeking families in country, nor any

apparent consensus (within or among countries)

as to what this package should include. The

general discourse around asylum seekers’

health tends to focus on access to specific

medical treatments or services rather than on

engagement with and by wider community

health systems, which is the recognized best

practice model applied to other families in

country across the region.

The practical value

of consistent, regular and mutual engagement

between families and national health services,

particularly mother and child health services,

is universally recognized in Europe – except in

relation to asylum seekers.

177

Research from Denmark warns

of the mental health risks for

children of living in reception

centres “characterised by waiting,

isolation, passivity and, in some

cases, absence of a personal life

and influence over one’s everyday

existence”. The Norwegian

Ombudsman for Children has also

noted growing concerns about

mental health problems, self-harm,

suicidal tendencies and (secondary)

school absence among the large

number of UASC who were granted

temporary residency in 2016 and

2017, and points to the need for

more robust care services.

Source: Nielsen, Signe S., et al. ‘Mental health among

children seeking asylum in Denmark – the effect of

length of stay and number of relocations: a cross-

sectional study’,

BMC Public Health,

2008, cited in

Ombudsman for Children in Norway,

Health Care on

Children’s Own Terms,

Oslo, 2017 (English version of

Helse på barns premisser, 2015).

Mental health

The Organisation for Economic Co-operation and Development has presented evidence

that a proportion of all refugees suffer from psychological complaints such as anxiety and

depression as a consequence of the traumatic, and often violent, experiences endured in their

countries of origin and on their journeys.

178

There is also strong evidence that a significant

number of children in the post-2015 mixed migration movement have been exposed to physical

and psychological trauma,

179

and a 2017 study in Sweden found that 84 per cent of school

nurses reported mental health issues as the biggest health problem among asylum-seeking

children.

180

While models of good practice in relation to counselling and rehabilitation services

177 Spencer and Hughes,

Outside and In,

pp. 23–33.

178 Organisation for Economic Co-operation and Development,

Making Integration Work: Refugees and others in

need of protection,

OECD Publishing, Paris, 2016, p. 41, available at <http://dx.doi.org/10.1787/9789264251236-en>,

accessed 3 February 2018.

179 See, for instance, Lander, Teresa (ed.),

Serbia: assessing health-system capacity to manage sudden large influxes

of migrants,

Ministry of Health of Serbia/World Health Organization Regional Office for Europe, Copenhagen,

2015, p. 4.

180 Socialstyrelsen [National Board of Health and Welfare],

Analys av situationen i socialtjänsten våren 2017 –

Fokus på ensamkommande flickor, yngre barn, nätverksplaceringar samt suicidrisk – delrapport 3,

Stockholm,

2017, p. 7, available at <www.socialstyrelsen.se/publikationer2017/2017-6-14>, accessed 3 February 2018;

Barnombudsmannen,

Nyanlända barns hälsa. Delrapport i Barnombudsmannens årstema 2017 – Barn på

flykt,

Barnombudsmannen, Stockholm, 2017, p. 8, available at <www.barnombudsmannen.se/globalassets/

dokument-for-nedladdning/publikationer/rapport-nyanlanda-barns-halsa.pdf>,

accessed 3 February 2018;

Barnombudsmannen, ‘“Ensamkommande barn måste få tillgång till BUP”’, last updated 23 November 2017,

<www.barnombudsmannen.se/barnombudsmannen/i-media/nyheter/20171/ensamkommande-barn-maste-fa-

tillgang-till-bup/>,

accessed 3 February 2018. See also the older but still relevant study: Brekke, Jan-Paul,

While

We Are Waiting: Uncertainty and empowerment among asylum-seekers in Sweden,

Institute for Social Research,

Oslo, 2004.

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for traumatized asylum-seeking children have been noted,

181

accessing psychosocial support

in the Nordic region is generally a slow and complex process. A mapping of mental health

services by the Ombudsman for Children in Sweden highlighted the need for urgent reform,

182

and employees of the reception centre at Espoo in Finland noted that the child welfare system

does not always respond to mental health problems (in the case of drug abuse or suicidal

thoughts).

183

Health authorities in Sweden have also refused to provide mental health care for

refugee children where a case was deemed too challenging or on the grounds that ongoing care

could not be guaranteed due to uncertainty around the length of the child’s stay in country.

184

While the absence of specialist therapeutic and counselling services for asylum seekers in

general in the Nordic countries is worrying, research indicates that the greatest risk to child

asylum seekers’ mental health is the continued stress and social isolation they experience as a

result of their poor living conditions, uncertainty around their legal status, and exclusion from

mainstream services.

185

Studies in Norway and Sweden have found that one of the main stress

factors for asylum-seeking children is the long waiting time for the processing of their asylum

claims and the tremendous uncertainty it entails.

186

Children in the asylum system in Norway

have said, “I have sad thoughts and get angry”; and that, “it is difficult to wait, the whole

family is suffering from it, they have thoughts. It is difficult to think of what could happen.”

187

181 Directorate General for Migration and Home Affairs, European Commission,

Success Stories from the Migration

and Home Affairs Funds: Solidarity and Management of Migration Flows

(2007-2013), European Commission,

Brussels, 15 April 2016.

182 ‘“Ensamkommande barn måste få tillgång till BUP”’;

Nyanlända barns hälsa.

183 Interview with the Espoo Reception Centre, Espoo, 30 October 2017.

184 ‘“Ensamkommande barn måste få tillgång till BUP”’;

Nyanlända barns hälsa.

185 A summary of the relevant research across Scandinavia can be found in

Paidos

(magazine for members of the

Norwegian Paediatric Association). See:

Paidos

vol. 30, no. 2, 2013, pp. 53–100, which is also cited in Ombudsman

for Children in Norway,

Health Care on Children’s Own Terms,

Oslo, 2017.

186 Brekke,

While We Are Waiting,

cited in

Health Care on Children’s Own Terms,

Ombudsman for Children in Norway.

See also: Jensen, Tine K., Envor M. Bjørgo Skårdalsmo, and Krister W. Fjermestad, ‘Development of Mental Health

Problems – A follow-up study of unaccompanied refugee minors’,

Child and Adolescent Psychiatry and Mental

Health,

vol. 8, no. 29, 17 November 2014, available at <www.nkvts.no/vitenskapelig-artikkel/development-of-

mental-health-problems-a-follow-up-study-of-unaccompanied-refugee-minors/>,

accessed December 2017.

187 Barneombudet [Ombudsman for Children in Norway],

Helsesituasjonen til barn med fluktbakgrunn,

Oslo, 2014, p. 40.

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2.6 Child protection

General context

In the migration/asylum discourse, ‘protection’ is “a concept that encompasses all activities

aimed at obtaining full respect for the rights of the individual in accordance with the letter

and spirit of human rights, refugee and international humanitarian law”;

188

in child rights

language, ‘child protection’ usually refers to the child’s right to be free from violence – defined

as all forms of abuse, neglect, exploitation and violence. This mismatch can lead to different

standards and criteria being applied when asylum and child protection authorities assess the

risks to, or vulnerability of, asylum-seeking children, and may enable the use of measures and

procedures that fail to support, or actively weaken, children’s protective environment.

Under international and European law, states must take measures to ensure that all children

have adequate protection and that their rights to physical integrity and dignity are effectively

observed. States’ precise duties are more evident where children are under their authority,

supervision or care, e.g. in public institutions, and may prove more difficult to observe in

cases where children are exposed to violence by private actors.

In all cases, a state’s core duty

is to secure the effective protection of all children living within its territory, and to that end,

states must adopt special measures and safeguards to protect all children.

189

Even where no specific violence against refugee and/or migrant children has been recorded

and they live in stable family environments, pre-existing trauma, language and cultural

barriers, and the breakdown of traditional community safeguarding mechanisms weaken their

protective environment, leaving refugee and migrant children at greater risk of exposure to

abuse, neglect, exploitation and violence. Such risks are intensified among children who lack

proper identity documents, and/or are separated from their families and/or cannot access

basic services such as education and health care, and so unaccompanied and undocumented

children are particularly vulnerable. Girls are at even greater risk as they may be isolated

or stigmatized by their families or communities as a result of having experienced sexual

exploitation during their journeys. Although UASC in the Nordic countries are generally

referred to the national child protection agency at some stage, referral is not automatic,

immediate or direct, and sometimes the documentation is incomplete. In Denmark, asylum-

seeking children’s entitlement to child protection services has only been clarified recently,

following two rulings from the National Social Appeals Board.

190

Few mechanisms are in place in the Nordic region to enable asylum-seeking children to access

mainstream protection services. Perceptions that police enforce asylum regulations and that

188 European Migration Network,

Asylum and Migration: Glossary 3.0,

European Commission, Brussels, October

2014, p. 221, available at <https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/

european_migration_network/docs/emn-glossary-en-version.pdf>,

accessed 3 February 2018.

189 European Court of Human Rights, Grand Chamber, O’Keeffe v. Ireland, No. 35810/09, 28 January 2014, para. 146.

190

https://www.retsinformation.dk/Forms/R0710.aspx?id=192370

and

https://www.retsinformation.dk/Forms/R0710.

aspx?id=192369.

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asylum seekers cannot access homeless shelters,

191

and fears of detention, deportation or

asylum being refused if they report violence, all serve to trap asylum seekers in situations of

labour exploitation and/or domestic/community violence.

192

Their reluctance to report violence

or seek protection or redress makes asylum seekers ‘zero risk’ victims, and breeds a culture

of impunity.

The firewall between child protection and migration/asylum agencies must be

legally, administratively and practically explicit, so that migrant and refugee women and

children feel able to access protection services.

Guardianship

National law in all the Nordic countries stipulates for every unaccompanied asylum-seeking

child the mandatory appointment of either a guardian or a legal representative, whose primary

function is to protect the child’s best interests. There is considerable overlap between the two

roles, although a guardian generally has a wider mandate in relation to the child’s general

welfare and acts “in the same way that a parent represents his or her child”,

193

while a legal

representative usually has a narrower focus on the asylum application process.

194

There seems

to be significant variation in how either role is interpreted at the local level, however, and this

can work in the child’s favour or to her/his disadvantage.

Finland, Iceland and Norway each appear to appoint legal representatives, while Denmark

tends more towards a guardianship model. Sweden ensures that a child has access to both

sources of support. Finland appoints a legal representative for every unaccompanied child as

soon as possible after arrival. The reception centre to which the child is assigned nominates the

representative, who must then be approved by the local administrative court. Reception centres

maintain lists of ‘suitable’ candidates and the Finnish Immigration Service pays appointed

representatives. This raises questions about the independence of such representatives and

how well they can represent the child’s best interests as a result. Such concerns may also be

warranted in Norway, where key respondents indicated that children’s ‘representatives’, who

are funded by County Governors, may be dismissed for advising against age assessment.

195

Iceland does not have a formal guardianship service but refers UASC to foster parents. The

Icelandic Ombudsman for Children reported, however, that, “it is not very common that children

over the age of 15 go into foster families”, revealing that a child’s age influences the system’s

191 FEANTSA, ‘Homelessness Amongst Immigrants in the EU – A homeless service providers’ perspective’, FEANTSA,

June 2013; Byrne et al.,

The Legal Entitlements of Refugee and Migrant Children,

ch. 6.

192 Geddie, Eve, and Michele LeVoy,

Strategies to End Double Violence Against Undocumented Women. Protecting

rights and ensuring justice,

Platform for International Cooperation on Undocumented Migrants, Brussels, March

2012.

193 Committee on the Rights of the Child, General comment No. 6 (2005): Treatment of unaccompanied and separated

children outside their country of origin, 1 September 2005, CRC/GC/2005/6 defines a guardian as: “an independent

person who safeguards a child’s best interests and general well-being, and to this effect complements the limited

legal capacity of the child. The guardian acts as a statutory representative of the child in all proceedings in the

same way that a parent represents his or her child”. See also: United Nations, Guidelines for the Alternative Care

of Children: A United Nations Framework, 2009, A/HRC/11/L.13.

194 Article 2(j) of the Reception Conditions Directive (Directive 2013/33/EU) defines a representative as: “a person or

organisation appointed by the competent bodies in order to assist and represent an unaccompanied [child] in

[international protection] procedures with a view to ensuring the best interests of the child and exercising legal

capacity for the [child] where necessary.”

195 Interview with Norwegian Organisation for Asylum Seekers (NOAS), Oslo, 6 November 2017.

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response.

196

In Denmark, local authorities must appoint a guardian for any unaccompanied

child, but only after she or he has been granted asylum.

197

A guardian is expected to act

loco parentis

and to maintain custody of the child until the child either reaches the age of 18

or is reunited with her/his parent or guardian. A guardian is appointed by the regional state

administration at the request of the Danish Immigration Service, but must be independent of

any authorities responsible for the child’s case.

Sweden’s guardianship model seems more effective than most, in that guardians are integrated

in the child protection system. Once a child’s application for asylum has been registered by

the Swedish Migration Agency, its application unit applies to the municipality where the child

will stay for a legal guardian, and the municipality’s supervisory authority appoints the child’s

legal guardian. The guardian role in Sweden involves: supporting the child with her or his

asylum application and contact with the Swedish Migration Agency; assisting the child in

her or his contact with the local council and health care authorities; applying for financial

support; ensuring that the child receives an education; managing the child’s financial assets;

and representing the child and providing support more generally. Another major challenge

in Sweden is the variation in qualifications of the guardian. The formal qualification is very

broadly defined in the national legislation, leading to a wide variety in quality of the guardian’s

performance.

The scale of demand for guardians over the past three years has inevitably proved problematic

for guardianship services, especially in Finland and Sweden. One problem that has resulted

stems from the absence of a cap on the number of children a single guardian may support.

198

This has led to guardians taking on responsibility for far more children than they can care for

properly, which has resulted in children being neglected and missing out on information.

199

There is a need within the Nordic countries to develop a guardianship model that ensures that

children have access to supporters in both roles – legal representative and guardian. Norway

has already gone some way towards this, by incorporating both roles in a single position, but

this is just one of several possible models that could be embraced. Further examination is

also required of the protocols in place to ensure that representatives operate independently

of asylum authorities, and it would seem that access to free legal aid is a prerequisite for

both child and guardian to negotiate the asylum application process. It is therefore imperative

that neither guardian nor representative is perceived as the sole and sufficient support

for unaccompanied children.

Since the guardian and/or representative functions as the

unaccompanied child’s primary source of support throughout the asylum process, there

is an urgent need to ensure that anyone occupying either role is both independent and

competent, perhaps through the development of a common set of standards. The nature

of the contractual relationship between adult and child – particularly in terms of the adult

striking a balance between speaking for the child and representing the child’s own views –

also requires clarification.

Although children in the Nordic countries can complain about their

guardians, it is not apparent that they have any real say in their guardian’s appointment.

196

197

198

199

Interview with the Ombudsman for Children, Reykjavik, 10 November 2017.

The Danish Act on Parental Responsibility, cf. Consolidated Act No. 1820 of 23 December 2015, section 28.

Interview with the Federation of Mother and Child Homes and Shelters, Helsinki, 27 October 2017.

Interview with the Swedish Refugee Advice Centre Children’s Unit, Stockholm, 24 October 2017. See also:

“Vi lämnade allting och kom hit”,

pp. 44–45.

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Family contact and reunification

The Nordic states generally respect the child’s right to live with her or his family and facilitate

this as far as possible. Placement with family members is considered the most suitable option

for unaccompanied children in all five countries, and family tracing is initiated as soon as

possible. Most reception centres maintain phone and Internet facilities to facilitate contact

between the child and family members. As indicated earlier, however, none of the Nordic

countries have signed or ratified the International Convention on the Protection of the Rights

of All Migrant Workers and Members of Their Families, though this could strengthen a state’s

commitment to family reunification, and there are concerns that family reunification is

sometimes used as a justification for detention or return, without full and proper consideration

of the individual child’s best interests.

Key respondents note that family reunification has become more difficult. In Finland, child-

sensitive legislation has been weakened and it is more difficult to obtain a residence permit,

as national law now prescribes a minimum income for applicants who have not got refugee

status but do have subsidiary protection,

200

for family reunification, including separated

children.

201

The rules for family reunification have also been tightened under the ‘temporary

law’ in Sweden, and family reunification is no longer possible for persons under subsidiary

protection, not even for UASC.

202

In Norway, UASC aged 16 or older may be given temporary

residence but not the right to family reunification.

203

In Finland, family tracing is not compulsory and the child’s decision on the matter seems to

be taken into account. The child’s consent to family tracing is required in all five countries,

but it is possible to override this requirement in Denmark and Norway. It is important that

the child’s opinions on family tracing are given serious consideration, particularly since

the findings of a European Union Agency for Fundamental Rights (FRA) study suggest that

family reunification is not always in the best interests of the child.

204

FRA research has also

found that the family reunification procedure is overly bureaucratic, lengthy and ineffective

205

– a view shared by some key respondents in the Nordic region.

200

201

202

203

204

Subsidiary protection is an international protection for persons seeking asylum, who do not qualify as refugees.

Interview with the Central Union for Child Welfare, Helsinki, 26 October 2017.

Interview with the Swedish Refugee Advice Centre Children’s Unit, Stockholm, 24 October 2017.

Interview with NOAS (Norwegian Organisation for Asylum Seekers), Oslo, 6 November 2017.

According to UNICEF, in relation to claims to reunite the child with her/his family in the host state, national

courts must also ensure that parents are not exploiting their children in order to obtain residence permits for that

country. See: United Nations Children’s Fund and Office of the United Nations High Commissioner for Human

Rights Regional Office for Europe,

Judicial Implementation of Article 3 of the Convention on the Rights of the

Child in Europe. The case of migrant children including unaccompanied children,

UNICEF/OHCHR, June 2012, p.

104. See also: UNHCR,

UNHCR Guidelines on Determining the Best Interests of the Child,

UNHCR, May 2008.

205 European Union Agency for Fundamental Rights,

Separated, Asylum-seeking Children in European Union

Member States. Comparative report,

Publications Office of the European Union, Luxembourg, 2011.

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Detention

In February 2018, the Committee on the Rights of the Child made a strong call for the EU to

ban child immigration detention, “even as a last resort” and for the reform of the Common

European Asylum System. In their recent Joint general comment,

206

the Committee on the

Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers

and Members of Their Families reassert the basic principle that every child, at all times, has

a fundamental right to liberty and freedom from immigration detention. The Committee on

the Rights of the Child has previously asserted that the detention of children because of their

own or a parent’s migration status constitutes a child rights violation and contravenes the best

interests principle.

207

In the joint statement of November 2017, both Committees repeatedly

affirm that children should never be detained for reasons related to their own or a parent’s

migration status, and also that states should expeditiously and completely cease or eradicate

the immigration detention of children.

National law in all five Nordic states should forbid any kind of immigration detention for

children, and this prohibition should be fully implemented in practice. The Committees

emphasize in their joint statement the harm inherent in any deprivation of liberty and the

negative impact that immigration detention can have on children’s physical and mental health

and on their development, even when they are detained only for a short period of time or with

their families. The Council of Europe has also clarified that detention can never be justified as

being in a child’s best interests, and several cases before the European Court of Human Rights

have highlighted the illegality of detaining children, even when a child is accompanied by her

or his parents.

208

206 Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and

Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations

regarding the human rights of children in the context of international migration in countries of origin, transit,

destination and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23, available at <http://tbinternet.ohchr.org/

Treaties/CMW/Shared%20Documents/1_Global/CMW_C_GC_4-CRC_C_GC_23_8362_E.pdf>,

accessed 7 February

2018.

207

Report of the 2012 Day of General Discussion on the Rights of All Children,

para. 78.

208 For more details, see: European Union Agency for Fundamental Rights,

Handbook on European Law Relating to

the Rights of the Child,

Publications Office of the European Union, Luxembourg, 2015, pp. 171–174.

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Implementing regulations are insufficient in

Although legislation and policies in

all of the Nordic countries. The criteria used

the Nordic states generally restrict

to determine and enable detention are quite

detention of children, detention of

broad and not particularly child-related, and

asylum-seeking children is legal,

as a result detention is more common in

particularly for those awaiting return. It

should be noted, however, that General

practice than it should be. The Nordic states

comment No. 23 of the Committee of

do not appear to have, either individually or

the Rights of the Child has clarified that

collectively, an agreed and comprehensive

the possibility of detaining children

as a measure of last resort, which

definition of ‘detention’ that encompasses all

may apply in other contexts such

forms of incarceration and confinement of any

as juvenile criminal justice, is not

kind. This means that even when ‘detention’

applicable in immigration proceedings

as it conflicts with the principle of the

is prohibited, there is leeway to change the

best interests of the child and the right

particular form of detainment that applies

to development. As a result, the legal

or even to redefine the concept of detention.

justification for immigration detention

Finnish law, for instance, expressly forbids

of children in the Nordic states is no

longer valid.

the detention of an alien child in police or

border guard custody, but accompanied and

unaccompanied asylum-seeking children can

be, and are, held in special detention facilities. Also, an older child may be taken into detention

if the receiving authority denies the fact that the child is under age.

In Norway, arresting anyone under 18 years of age is prohibited under section 174 of the

Criminal Procedure Act unless it is absolutely necessary, but the detention of children is

allowed for immigration control purposes. In Denmark, child asylum seekers, whether

accompanied or unaccompanied, may only be detained in special facilities, but in the absence

of any alternative option, children aged 15–17 years can be placed in a local prison.

209

In Iceland,

there are no detention centres and children are not detained for immigration purposes.

The other four Nordic states allow the detention of children for return purposes, and the

criteria used to justify and enable detention are quite broad and usually relate more to easing

the implementation of an asylum authority’s decision than to protecting the child’s best

interests. National law across the region generally prohibits the detention of children under

the age of 18, but younger children may be detained if accompanied by a parent.

Time limits placed on the duration of a child’s detainment also seem somewhat elastic in the

Nordic countries. A European Migration Network report on unaccompanied minors in the EU

indicates that

asylum-seeking children may only be detained for a maximum of 72 hours in

Finland and Sweden, but that this can be legally extended for another 72 hours – meaning

that children in either country may spend up to six days in detention.

210

The same report

describes how it is official policy in Norway to detain asylum-seeking children for no more

209 Section 1 of Order no. 402 of 9 April 2015 on the treatment of 15- to 17-year-olds, who are placed in the

institutions of the Prison and Probation Service. Global Detention Project. “Submission to the UN Committee on

the Rights of the Child: Denmark | Global Detention Project | Mapping Immigration Detention around the World.”

Global Detention Project

(blog), August 2017. <https://tinyurl.com/ybvanykn>

210

Policies, Practices and Data on Unaccompanied Minors in the EU Member States and Norway.

See also: European

Migration Network, The Use of Detention and Alternatives to Detention in the Context of Immigration Policies,

Directorate-General Migration and Home Affairs, European Commission, Brussels, 2015, available at <https://

ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/networks/european_migration_network/reports/

docs/emn-studies/emn_study_detention_alternatives_to_detention_synthesis_report_en.pdf>,

accessed 4 February

2018.

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than 24 hours, yet the law allows children to

be detained for up to two weeks at a time.

211

According to the Ombudsman for Children in

Norway, at least 145 asylum-seeking children

were detained with their families in 2016, and

though this was typically for one night, 17

of the children were detained for more than

three days. This illustrates the risk of having

criteria that allow for ‘exceptions’, as these

are inevitably expanded to accommodate the

needs of state agencies, usually to a child’s

disadvantage. In Denmark, the law does not

specify an upper time limit for detention and

children may be kept in so-called ‘departure

centres’ for long periods of time.

The lack of basic data at central

government level about asylum-

seeking children held in detention

raises real concerns about

accountability and about how

policy in this area is actually

determined. Given the lack of clarity

about what the real situation is

in the Nordic states with regard

to detained families and children,

urgent assessments of the situation

should be undertaken at country

level, alongside national campaigns

to wholly prohibit immigration

detention for children and investment

in the development of alternatives

to detention.

Even more worryingly, when Access Info Europe and the Global Detention Project conducted

a two-year study of migration detention in Europe, Sweden was the only Nordic state willing

and able to provide all of the information requested on detention facilities and the number of

persons detained; Iceland and Norway did not respond to the request; Denmark and Finland

responded that they did not hold the requested information, although Finland did acknowledge

that it detained migrants.

212

Missing children

A 2017 report by the Ombudsman for Children in Sweden revealed that 1,736 children

registered in Sweden disappeared between January 2014 and October 2017, and 1,456 of them

are still missing.

213

These are children who have been missing from their accommodation for

longer periods of time, some of whom now live on the streets in Sweden and others whose

whereabouts are unknown. Missing children subsequently interviewed by the Ombudsman cite

various reasons for absconding, including not being allowed to live with siblings or relatives,

being prevented from exercising their religion, or discrimination due to their background.

Others said that they carried traumatic memories of war, violence, poverty or exploitation;

revealed they had been subjected to sexual assault under flight and/or in Sweden; or described

the long asylum process and wait for a decision as arduous.

214

In 2013, as part of the European Migration Network review, Finland reported 9 unaccompanied

children missing from the asylum system; Sweden reported 149 missing unaccompanied

211 Ibid.

212 Access Info Europe and Global Detention Project,

The Uncounted: Detention of migrants and asylum seekers in

Europe,

Access Info Europe/Global Detention Project, December 2015.

213 Barnombudsmannen,

Ensamkommande barn som försvinner,

pp. 5–8. See also: Stockholm Municipality,

Länsstyrelsen Stockholm, På Flykt Och Försvunnen. En Nationell Kartläggning Av Ensamkommande Barn Som

Avviker.

Stockholm, 2016.

214 Ibid.

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children; and Norway responded that the

question did not apply, although it went on to

report 88 unaccompanied children returned

after having been reported missing the same

year.

215

Denmark and Iceland did not participate in

the review, but a separate study by Ecorys

indicates that 111 children went missing from

the Danish asylum system in 2012.

216

Living on the streets is hard. About his

experience, one child said: “I slept on the

streets, sometimes I would not get any food

for three or four days. It was tough times I

must say. I did not feel good then.”

217

Another

child said that he would not have ended up

using drugs had he had identity documents

and some form of employment.

218

The Ecorys study indicates that the

Nordic states have the same problem with

inconsistent definitions and data in relation

to missing children as they do with detained

children. None of the three Nordic states

included in the Ecorys study – Denmark, Finland and Sweden – have either a legal definition

of ‘missing person’ or a full database of the 14 indicators of missing children suggested by

Missing Children Europe. Inconsistent policy and/or practice across the five Nordic countries

is particularly damaging in the case of missing children, as such children’s movement is likely

to remain within the Nordic region and so cross-border cooperation will be important for

resolution and return.

Only Sweden has a legal definition of a ‘missing unaccompanied child’, and this aligns with the

Missing Children Europe definition. Finland’s definition of the same is enshrined in ministerial

regulations only, while Denmark has no legal definition and relies instead on an operational

definition used by the police. Of the five countries, only Finland has clear legal and procedural

regulations that set out how to respond when an asylum-seeking child goes missing. The

absence of specific regulations on responding to missing unaccompanied migrant children in

Denmark leaves local police without guidelines for undertaking related search procedures. A

case can only be identified as a ‘missing child’ if criminal activity is suspected, at which point it

is passed to the national police and a national criminal record is created. Although the absence

of a prescribed ‘immediate response’ should not be taken to assume that no effort is being

215 All figures from

Policies, Practices and Data on Unaccompanied Minors in the EU Member States and Norway.

Annexes to the synthesis report,

Annex A1.9.

216 Ecorys,

Missing Children in the European Union. Mapping, data collection and statistics,

Publications Office of the

European Union, Luxembourg, 2013.

217

Ensamkommande barn som försvinner,

p. 22.

218 Ibid., p. 24.

It is of some concern that the available

data remain insufficient to establish

a clear picture of the Nordic national

responses to children reported as

missing from the asylum system. The

general impression garnered from

the data that are available is that the

Nordic states lack the comprehensive

and coherent legislative, policy and

practice frameworks necessary to

shape the kind of well-coordinated,

multi-sectoral responses that this

issue demands. The impression also

comes across (perhaps unfairly) that

agencies and professionals have

come to accept the disappearance of

asylum-seeking children – especially

older boys – as inevitable, and have

downgraded the intensity of their

responses accordingly. Each of the

Nordic countries must measure its

national response against the template

developed by Missing Children

Europe and upgrade its procedures

accordingly. This would be best done

in a coordinated way across the

region, given the transnational nature

of this particular issue.

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made to search for the child, there is a fixed ‘no action’ period before local police investigations

commence for missing unaccompanied migrant children over 15 years of age. In Finland, there

is also a waiting period of 24 hours before a police search for a missing child is initiated.

In contrast, Sweden has mapped missing children in the country and developed an action plan

that sets out how the relevant authorities and other national and local actors can coordinate

efforts and work together when a child goes missing.

219

Although reception centre staff in Norway will immediately investigate why an unaccompanied

child is absent from daily activities or has not returned from an external appointment, they

will delay notifying the police for 24 hours. Even then, local police and child welfare services

will be notified of a disappearance only if the staff have reason to believe that the minor may

be a victim of trafficking, at risk of forced marriage, or involved in a criminal environment, or

may have been exposed to other gross neglect. On the other hand, reception centre staff will

immediately report a disappearance to the UDI Arrival and Child Specialist units and register

the missing minor in Sesam, a web-based database of missing children, as soon as possible.

UDI then coordinates the response. Although a 2013 study notes that Norwegian police no

longer take cases of missing unaccompanied migrant children less seriously than missing

local children,

220

a more recent Save the Children report indicates that 470 children were

missing from the asylum system in Norway as at 31 October 2017.

221

Child trafficking

Denmark, Finland, Norway and Sweden are ranked in Tier 1 of the

Trafficking in Persons Report

2017.

222

This means that their governments meet in full the minimum standards of the Trafficking

Victims Protection Act. Iceland is ranked in Tier 2, which means that the Icelandic government

is making significant efforts to comply with the same standards. Norway developed its first

action plan on trafficking for the period 2003–2005.

223

While Denmark has not appointed a

national rapporteur on trafficking, the Finnish government initially appointed the Ombudsman

for Minorities to serve as its National Rapporteur on Trafficking in Human Beings in January

2009, followed by the Non-Discrimination Ombudsman as of 1 January 2015. Sweden’s National

Rapporteur on Trafficking in Human Beings is placed within the Swedish Police Authority.

When discussing the present movement of migrants and refugees, representatives of the

Swedish Police shared their belief that many of the young Moroccan boys currently residing

in the Nordic region are, or at some point were, part of a trafficking network that may operate

219 Länsstyrelserna,

På flykt och försvunnen. Metodstöd för regional samverkan kring ensamkommande

barn som försvinner,

Länsstyrelserna, Stockholm, 2017, available at <www.lansstyrelsen.se/Stockholm/

SiteCollectionDocuments/Sv/publikationer/2017/pa-flykt-och-forsvunnen-metodstod.pdf>,

accessed 4 February

2018.

220 Espeland, Karen E., ‘Savnet – en rapport om enslige asylsøkende barn som forsvinner fra mottak’, Press, Barne-,

ungdoms- og familiedirektoratet, Oslo,

221 Redd Barna,

Vi kan ikke reise tilbake. Press’ rapport om barn som forsvinner fra norske asylmottak 2017,

Redd

Barna, Oslo, 2017, available at <https://press.no/wp-content/uploads/2017/11/Vi_kan_ikke_reise_tilbake_2017.pdf>,

accessed January 2018.

222 United States Department of State,

Trafficking in Persons Report 2017,

US Department of State, June 2017,

available at <www.state.gov/j/tip/rls/tiprpt/2017/index.htm>, accessed 4 February 2018.

223 de Wal Pastoor, Eide and Mekonen,

Reception of Asylum Seeking and Refugee Children in the Nordic Countries,

p. 41.

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Europe-wide, or may end up in trafficking after

absconding from their care homes.

224

Similar

evidence was found in 2010 in Norway, where

“criminals are free to put [asylum-seeking

minors missing from reception centres]

in income-generating activities, such as

prostitution or other sexual purposes, but also

outright slave labour”.

225

The Moroccan boys

have ended up in the region after travelling

throughout Europe and constitute one of the

most vulnerable groups in the Nordic states.

Many are known by the authorities in several

countries. Although some seek asylum,

many do not and remain at extreme risk of

trafficking or re-trafficking.

226

Those boys who

do apply for asylum are often in very poor

shape: according to reception centre staff

in Denmark, they frequently suffer dramatic

drug abuse and are emotionally immature.

227

These children often disappear from reception

It is unclear at present how closely

national anti-trafficking systems and

structures are working with national

asylum systems and/or national child

protection systems, but UASC in the

current arrivals do not appear to be

automatically assessed as potential

victims of trafficking. The 2011

UNICEF Innocenti analysis found

that responses to children‘s needs

and situations in the Nordic states

were largely defined by children’s

legal status. It highlighted how these

categorizations had a significant

impact on the extent and nature

of services provided to children,

through budgetary support provided

and criteria used for assessing the

circumstances, needs and best

interests of different groups of

children. Sadly, the present analysis

echoes some of these conclusions.

224 Interview with the Swedish Police (Street Officers Unit for UASC), Stockholm, 24 October 2017, and the Swedish

Police (Strategic Unit at the National Border Policing Section), Stockholm, 24 October 2017.

225 de Wal Pastoor, Eide and Mekonen,

Reception of Asylum Seeking and Refugee Children in the Nordic Countries,

p. 42.

226 Ibid.

227 Interview with the Danish Red Cross Gribskov Transit and Child Centre, Gribskov, 31 October 2017. Voiced also by

the Swedish Police (Street Officers Unit for UASC), Stockholm, 24 October 2017.

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centres after they have been there for a while and presumably return to living on the streets

as irregular migrants.

While robustly defending the need to ensure that children who have been trafficked can access

appropriate services, the 2011 UNICEF Innocenti research previously mentioned in this report

did point out that privileging this group of vulnerable children on the basis of their legal status

over other groups of vulnerable migrant children whose rights are not fully met appears to

represent a form of discrimination.

228

This research finds that this tension is yet to be resolved

in the Nordic countries in relation to asylum-seeking children.

228 Marshall, Wenke and Nordh.

Child Trafficking in the Nordic Countries: Rethinking strategies and national

responses, Innocenti Insights,

United Nations Children’s Fund, Florence, 2012.

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3. Conclusion and

recommendations

3.1 Conclusion

The response of Nordic countries to the arrival of asylum-seeking children continues to be

both generous and child-friendly. The size, scale and scope of the movement of UASC have,

however, challenged the capacity of professionals and agencies working in the national asylum

and child protection systems and have revealed inherent flaws, cracks and gaps in national

response frameworks. Despite the Nordic countries having social and political environments

that are by and large respectful of children’s rights, national child protection agencies have

failed to take a strong lead in relation to migrant and asylum-seeking children. National

asylum agencies and their agents have generally tried to adopt a child-focused approach, but

child rights are not their primary remit, and national responses have been framed in a context

where a child’s legal status significantly determines her or his access to entitlements.

As a result, national responses in the Nordic region do not comply with the Committee on

the Rights of the Child recommendations that

every child, whatever her or his migration or

asylum status, is first and foremost a child with full entitlement to all of the rights enshrined

in the Convention on the Rights of the Child; and that all governments and duty bearers have

a moral and legal responsibility to realize those rights for all children in their care.

229

The

current imbalance in authority and responsibility between asylum and child protection agencies

must be recalibrated, as it enables the continuation of a situation in which lower standards are

tolerated for asylum-seeking children. This leaves thousands of asylum-seeking children relying

on second-rate mechanisms for protection – mechanisms that do not satisfactorily comply with

the standards laid down by the Convention on the Rights of the Child. National child protection

agencies in the Nordic region must take a more active leadership role in the design, development,

supervision and oversight of national migration, asylum and dispersal strategies and actions.

Further investment is also needed in child advocacy, protection and support programmes, and

in developing appropriate oversight, monitoring and evaluation mechanisms for such initiatives.

There is a clear tendency in all five countries to give migration law precedence over the

Convention on the Rights of the Child, even in those countries where the Convention has been

incorporated into national law. Nordic states should consider strengthening their legislative

and policy frameworks by ratifying the International Convention on the Protection of the Rights

of All Migrant Workers and Members of Their Families, which will also serve to encourage other

European states to follow suit. All five Nordic countries should also give serious consideration

to committing fully to the EU migration acquis, which establishes a practical framework for the

development across Europe of common policies, practice and standards for asylum-seeking

children. Although the Nordic states have a strong culture and institutional framework of

gender equality, the present research found no documented evidence of gender awareness

229

Report of the 2012 Day of General Discussion on the Rights of All Children.

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being incorporated in national responses to asylum-seeking children. Nor did the research

find sufficient justification for the variation in the levels and types of protection offered to

children above and below the age of 15.

To facilitate both a child focus and equivalence, safeguards related to the asylum process

should, as far as possible, be stipulated in law rather than in rules and regulations or codes

of conduct. Safeguards at regulation and practice levels are essential throughout the asylum

process, but their stipulation only at these levels allows too much room for wide interpretation

and lax enforcement, often to children’s detriment. Much stronger safeguards are required

at every stage of the asylum process to allow a child legal challenge and judicial review of

decisions. Age assessment and forced return are two specific stages of the asylum process

that demand much greater scrutiny, but in fact the whole concept of ‘manifestly unnecessary’

must be strongly challenged when it comes to decisions that affect children’s lives.

The ‘best interests of the child’ must be the primary consideration in any and all decisions

that affect a child, and the core principle underpinning safeguards in all countries and at

all stages of the asylum process. It is worrying to note the great variation in the quality of

understanding, interpretation and implementation of the principle within and between the

Nordic states. While some BIDs genuinely aim to plan holistically for a child’s welfare and

protection, key respondents indicated that, in practice, the quality of BIDs is mixed and their

impact on decision-making variable. It is particularly urgent and essential that all five states

establish clear formats, protocols and standards for BIAs – and ensure that these are applied

appropriately and consistently – to ensure that a child’s best interests do inform and influence

every stage of the asylum process.

Guardianship is another key safeguarding mechanism in the Nordic states, but there is no

agreement on models or standards and practical implementation is inconsistent. This is an

area that could benefit from regional agreement on standards and a common code of good

practice to ensure that: (i) both guardianship and legal representation are available to every

child; (ii) there is an explicit and sufficient firewall between guardians and asylum services; and

(iii) there are clear guidelines in place relating to confidentiality and to disputes or differences

between guardian and child, the child’s right to speak for herself or himself, and the child’s

right to complain about her or his guardian. National child protection agencies should also

establish standards, and clear procedures, for the vetting, recruitment, management, support,

supervision, training and resourcing of guardians.

The Nordic states have a deserved reputation for respecting children’s right to be heard

on matters that affect them and asylum procedures reflect this – though not sufficiently. In

practice, asylum-seeking childen – and especially accompanied children – are given only limited

opportunities to be heard. It is the needs of the asylum system that generally determine the

timing and agenda of a child’s participation, rather than her or his own concerns, and so the

child’s input tends to be sporadic, indirect and not always heard at key points in the process.

There also seems to be a lot of leeway in the asylum process for adults to arbitrarily decide to

deny – without consultation or justification – children the opportunity to speak. Strengthening,

extending and realizing the right of every child to have her or his opinions noted and acted

upon throughout the asylum process, must be central to any strategy aiming to strengthen

implementation of the ‘best interests’ principle.

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The Nordic countries have strong education systems and the right to basic education for all

children is enshrined in law in every country. The law seems to be interpreted differently for

asylum-seeking children in each of the Nordic states, however, and there also seems to be

variation in how local authorities interpret their responsibilities towards this group of children.

Education services in the Nordic states have generally coped with the large number of refugee

children who have arrived since 2015, and their national models of inclusive education have

proved fit for purpose. Certain legal and administrative barriers can, however, significantly and

unnecessarily delay a child’s entry into mainstream schooling, and restrict her or his access

to the full range of education services. Delaying the enrolment of asylum-seeking children

into compulsory schooling is frequently justified as a protective measure, although there

is no evidence that the alternative educational services offered are effective, cost-efficient

or sufficient for children’s needs. Strengthening schools’ capacity to provide the additional

resources, teaching and support services needed to address the language barriers and other

obstacles that hinder child asylum seekers’ access to education would seem to be more

effective and cost-efficient than delaying their enrolment by trying to address such matters

outside the mainstream education system. This is particularly the case for ECE programmes,

but the same approach also applies to basic, secondary and vocational education. To speed

up the integration of asylum-seeking children in mainstream education, there should be a

significant reassignment of resources from segregated education services based in reception

centres to support services in mainstream schools.

Different standards also seem to apply to asylum seekers in relation to access to health care

and social protection services. Although asylum-seeking children are entitled to health care

and medical treatment, local health care services can be reluctant to offer such care, and the

firewalls between health care and asylum services are insufficient. Neither law nor policy

allows for child asylum seekers’ full integration in national health services, so access must be

negotiated on a service-by-service basis – and sometimes even treatment by treatment. This

seems ineffective for all parties and it is strongly advised that the Nordic states instead define

a common ‘core package’ of services available to asylum-seeking mothers and children, and

make this information available to both them and to practitioners at the local level. This would

ensure a consistent interpretation of national law and policy across a country. Ideally, this

package should be equal to the package available to all mothers and children in the country,

but at a minimum it should include free access to national services for mother and child

health, prevention and treatment of infectious diseases including HIV/AIDS, vaccination,

adolescent health, dental care and mental health, as well as emergency medical treatment

and care. Research and experience indicate that the mental health of child asylum seekers

is severely affected by uncertainty about their legal status and the constraints of their living

conditions, and also that the asylum process itself is a major contributor to poor mental health

among asylum-seeking children, youth and young people. All five Nordic states must adopt a

proactive and inclusive ‘normalizing’ strategy towards child asylum seekers to address mental

health issues and to ensure a more positive living environment for everyone in the asylum

process, particularly adolescents and young people.

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Immigration detention is more common in the Nordic region than it should be, and research

is urgently needed in all of the Nordic countries to establish the real situation as regards

detained children. The lack of data about children in detention in the Nordic states is a matter of

some concern, and it raises serious questions about accountability and also the policymaking

process in relation to detained children. Loopholes in the policy frameworks allow for too many

instances of detention outside the recommended guidelines. The recent joint statement from

the Committee on the Rights of the Child and the Committee on the Protection of the Rights

of All Migrant Workers and Members of Their Families clarifies that the use of immigration

detention for children in any circumstances and for any period of time is a clear breach of the

Convention on the Rights of the Child and a serious risk to the child’s heath, well-being and

development. The clarification provided by the joint statement clearly invalidates the legal

justification for such detention in the Nordic region. National campaigns to prohibit all forms

of immigration detention for children are now required, as is further investment in developing

alternatives to the detainment of children. It is particularly important that the aim to ‘keep

families together’ ceases to be used to justify detaining children.

A similar lack of data also makes it difficult to comment on the Nordic countries’ responses to

children missing from the asylum system. What is clear, however, is that Nordic states lack the

comprehensive and coherent legislative, policy and practice frameworks required to shape the

kind of well-coordinated, multi-sectoral responses that this issue demands. The impression

that comes across is that agencies and professionals in the region have come to accept the

disappearance of asylum-seeking children – especially older boys – as inevitable, and they

have downgraded the intensity of their responses accordingly. Each of the Nordic countries

should measure its national response against the template developed by Missing Children

Europe and upgrade its processes and procedures as necessary. This would be best done in a

coordinated way across the region, given the transnational nature of this issue.

The large number of arrivals since 2015 has undoubtedly led to a blurring of distinctions

across Europe between refugees and economic migrants and this has inevitably diluted public

perception of children’s need for refuge, asylum and protection. There has been a backlash

against unaccompanied children and perceived abuse of the age assessment process.

230

much stronger lead is required from child protection agencies to reinforce the message

that children are children, whatever their legal status. The sheer scale of demand may make

it difficult to maintain child-centred policy and practice at all times, but child protection

agencies’ continued tolerance of lower standards for asylum-seeking children contributes

to a social acceptance of discrimination and marginalization. The notion that full access to

rights for any child depends on her or his legal status must be vigorously challenged.

230 See, for instance, Carlqvist, Ingrid, ‘“Refugee Children” Invade Sweden’, Gatestone Institute, 23 July 2015,

<www.gatestoneinstitute.org/6190/sweden-refugee-children>, accessed October 2017.

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3.2 Overall recommendations of the UNICEF

Agenda for Action

Protect child refugees and migrants, particularly

unaccompanied children, from exploitation and violence.

End the detention of children seeking refugee status or

migrating.

Keep families together as the best way to protect children and

give them legal status.

Help all refugee and migrant children to keep learning and give

them access to health care and other quality services.

Press for action on the underlying causes of large-scale

movement of refugees and migrants.

Promote measures to combat xenophobia, discrimination and

marginalization in countries of transit and destination.

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3.3 General recommendations for all the Nordic

countries

a. Context

1. Realign and restate the current balance of responsibility and authority between national

asylum and child protection agencies in all the Nordic states to ensure that all children

are treated equally and that asylum-seeking children do not have to rely on second-rate

protection and care mechanisms that do not sufficiently and satisfactorily comply with the

standards laid down by the Convention on the Rights of the Child, for both unaccompanied

and accompanied children.

2. Restate the primacy of the Convention on the Rights of the Child, over migration/asylum

law, and make explicit the consequent commitment to apply the same rules and standards

to asylum-seeking children that apply to all other children, for whatever period they remain

in country.

3. Develop a common model for BIA and for BID, along with clear guidelines for the

implementation and use of each in asylum proceedings.

b. Asylum process

1. Ensure that law, policy and practice stipulate the referral to child protection authorities of

all asylum-seeking children immediately upon arrival, and that such a referral becomes an

integral element of the registration process.

2. Develop a protocol for age assessment that covers procedures, techniques and the

interpretation of results, and that is in line with both sets of United Nations guidelines

(UNICEF and UNHCR) and also the safeguards outlined by the European Asylum Support

Office. Immediately cease the practice of penalizing children in any way, or threatening

penalties, for refusing to consent to age assessment, and put in place an independent

appeals process that allows children to challenge age assessment decisions.

3. Put in place a child-sensitive asylum procedure that guarantees the child’s right to be heard

in the asylum process and ensures that every child has access to legal advice at all stages

of the process.

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c. Education

1. Remove all barriers to asylum-seeking children’s rapid enrolment and full inclusion in

mainstream schools and ECE programmes.

2. Reassign resources from the provision of reception-based education services to the

expansion of support services in mainstream schools to speed up the integration of asylum-

seeking children in mainstream education. In countries where ECE programmes for asylum-

seeking children are run in reception centres, ensure that such programmes are transferred

to mainstream facilities in the community.

d. Health

1. Ensure that access to equal health care, including mental health care, for all asylum-seeking

children serves to integrate asylum seekers into mainstream national health systems, in

countries where relevant.

2. Develop a strategy to address the risk to children’s mental health presented by the continued

stress and social isolation caused by their poor living conditions, uncertain legal status and

exclusion from mainstream services.

e. Child protection

1. For all child protection facilities and services, eliminate any residence requirement for users

of services, to ensure that they are accessible to asylum-seeking women and children when

needed.

2. Revise guardianship services and establish a code of good practice to ensure that both

guardianship and legal representation are available to every asylum-seeking child

immediately upon arrival. Ensure the presence of an explicit and sufficient firewall between

the immigration/asylum authority and each of the following: guardians, social services, and

educational and health services.

3. Cooperate with the other Nordic countries to develop and implement models to prevent

children absconding from the asylum system and to quickly trace and recover those children

who do go missing.

4. Expand the range of options available for the reception and care of asylum-seeking children,

and establish a multi-sectoral plan in collaboration with each child (and family, where

relevant). Upgrade the standards and level of care in all residential facilities for asylum-

seeking children in line with the requirements applied to residential facilities for other

vulnerable children in the country.

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3.4 Country-specific recommendations

a. General context

Denmark

1. Adopt full

compliance with

the EU acquis on

migrant children.

Finland

1. Ensure that the

Convention on

the Rights of the

Child takes

precedence over

national

migration law.

2. Develop

mechanisms to

enable the voices

of younger

children to be

heard in the

asylum process.

Iceland

1. Ensure that the

Convention on

the Rights of the

Child takes

precedence over

national

migration law.

2. Ensure that

child protection

authorities take

responsibility

for all

unaccompanied

and separated

children.

Norway

1. Ensure that the

child protection

authority takes

responsibility for

all UASC.

Sweden

1. Establish the

precedence of

the Convention

on the Rights of

the Child over

national asylum

law as soon as

possible.

2. Strengthen BID

protocols; and

urgently establish

quality standards

for all relevant

responsible

authorities.

2. Incorporate

the Convention

on the Rights of

the Child fully

into domestic

legistlation

and ensure its

primacy

over national

migration law.

2. Clarify and

strengthen the

governance and

oversight

arrangements for

the national

response to

asylum seekers.

3. Strengthen

accountability

and transparency

mechanisms

in the Finnish

asylum system.

3. Oversight

mechanisms

in the asylum

system

clarified and

strengthened by

the Ombudsman

and/or other

independent

human rights

monitoring

bodies.

4. Develop

agreed

BIA and BID

formats and

guidelines.

3. Develop and

distribute child-

friendly material

to all asylum-

seeking children,

accompanied or

unaccompanied.

4. Challenge the

general cutback

on access to legal

advice, which is

contrary to the

best interests of

the child.

4. Ensure

children’s

participation

rights under

asylum law.

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b. Asylum process

Denmark

1. Strengthen and

expand

interpretation

services and

ensure that

border guards

and police

officers

receive training in

identifying UASC

and

communicating

with children.

Finland

1. Review and

revise age

assessment

procedures.

Iceland

1. Develop clear

protocols to

facilitate rapid

referral of UASC

to child protection

services

immediately

after arrival and

ensure that in no

circumstances

are they

accommodated in

reception centres

together with

adults.

2. Ensure that

age assessment

procedures are

based on holistic

evaluations,

and develop an

appeal process.

Norway

1. Ensure that the

Norwegian Child

Welfare Services

are represented

at every entry

point; and/or that

all children are

referred to them

for assessment

on arrival; and

that the statutory

authority over the

child is decided

only after

this assessment.

2. Ensure that

age assessment

procedures

respect the rule

of law and are

based on holistic

evaluations.

Sweden

1. Expand current

training

programmes for

border guards

and police

officers on

identifying UASC

and

communicating

with children.

2. Impose tighter

controls on

requests for age

assessment and

develop a wider

package of

techniques for

use in initial

assessments.

3. Ensure that

independent legal

advice is available

to the child

throughout

the entire asylum

process; and

develop a

protocol to

ensure that due

weight is given

to the child’s

opinions.

4. Establish the

independent

monitoring of

reception centres.

2. Review the

management,

supervision and

oversight

arrangements in

reception centres

and bring them

into line with

international

standards.

3. Quality

standards

that enshrine

current good

practice must be

established for

BIA and BID; and

the role and

weight of BIDs in

decision-making

must be clarified.

2. Ensure that

age assessment

procedures

respect the rule

of law and are

based on holistic

evaluations.

3. Provide

further training

in child-friendly

communication

for all migration

and asylum staff.

3. Strengthen and

extend current

policies and

mechanisms that

allow children to

be heard in the

asylum system

independently of

their parents.

3. Include child-

specific forms of

persecution in

national asylum

legislation.

4. Develop

suitable

informational

material in child-

friendly formats

and distribute

to all asylum-

seeking children,

accompanied and

unaccompanied.

4.Upgrade

the physical

infrastructure of

reception centres;

and apply the

same standards

to reception

centres and child-

care centres.

5. Urgently

develop BID

formats and

guidelines, and

also guidelines

for the use of

BIDs in asylum

proceedings.

4. Ensure the

right to be heard

for all children

in the asylum

process.

5. Upgrade

the physical

infrastructure at

reception centres.

5. Review the

role of legal

representatives

to ensure they

accompany

the child to all

interviews during

the asylum

process.

6. Strengthen BID

protocols and

urgently establish

quality standards

for BID.

6. Establish BID

formats and

guidelines.

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c. Education

Denmark

1. Clarify and

address barriers

to mainstream

education,

including ECE

programmes.

Finland

1. Ensure that

asylum-seeking

children are

enrolled in

mainstream

schooling as

soon as possible

after arrival.

Iceland

1. Enshrine

asylum-seeking

children’s right

to access quality

mainstream

education,

including ECE

and secondary

education, in

ministerial

regulations.

2. Ensure that

there are no

unnecessary

delays in

enrolling

children to

schools.

Norway

1. Review residence

requirements for

ECE attendance to

facilitate

participation by

asylum-seeking

children in

mainstream

nursery schools or

kindergartens.

2. Simplify

procedures for

applying to

secondary school/

vocational training

and devise a

mechanism for

accrediting learning

in the country of

origin to remove the

burden of proof

from prospective

students.

Sweden

1. Ensure that

asylum-seeking

children are

enrolled in

mainstream

schooling as

soon as possible

after arrival.

2. Ensure access

to education for

asylum-seeking

children aged

17–18 years.

d. Health

Denmark

1. Stipulate

the health care

entitlements of

asylum-seeking

children in law,

and enable

their access

to health care

through the

national health

service, as

for all other

children.

Finland

1. Models of

mental health

services for

asylum-seeking

children in

Finland should

be reviewed

and costed to

ensure access

for all.

Iceland

1. Clarify,

strengthen and

make explicit

the firewall

between health

and migration

services.

Norway

1. Undertake

an urgent

assessment of

the health care

needs of young

asylum seekers.

Sweden

1. Ensure that

all asylum-

seeking children

have the same

access to health

care services

in practice as

other children,

including mental

health care.

2. Ensure that

asylum-seeking

children have

access to mental

health care

services.

2. Undertake

a study of the

mental health

implications

of the current

response to

young asylum

seekers.

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e. Child protection

Denmark

1. The role,

responsibilities

and contractual

relationship of

the guardian

must be clarified.

Finland

1. Develop formal

standards,

guidelines and

protocols for the

recruitment,

management,

support and

supervision of

guardians that

ensure their

independence,

professional

competence and

confidentiality

and an adequate

firewall between

the Finnish

Immigration

Service and the

guardian.

2. Draw up formal

guidelines and

protocols for

family tracing.

Iceland

1. Clarify and

review how the

Governmental

Child Protection

Act fulfils its

guardianship role

and its

relationship with

migration and

asylum

authorities.

Norway

1. Review the

role, remit and

responsibilities of

the guardianship

service; and

develop

protocols,

guidelines and

codes of conduct

to ensure that

guardians can

perform their

duties

independently of

the asylum

service, in the

child’s best

interests.

Sweden

1. Establish

guidelines and

protocols for

guardians, and

strengthen and

expand their

training and

supervision.

2. Urgently

review and

revise national

legal and policy

frameworks in

relation to

detention.

2. Law and

policy should be

reviewed and

revised to ensure

that detention of

children does not

occur in future.

2. Amend

national

law to guarantee

asylum-seeking

children contact

with family, and

facilitate family

reunification

irrespective of

protection status.

3. Review and

revise regulations

concerning

children in

detention.

2. Amend

national law

to guarantee

asylum-seeking

children contact

with family, and

facilitate family

reunification

irrespective of

protection status.

3. Review and

revise regulations

concerning

children in

detention.

4. Establish

a sufficient

firewall between

the migration

authority and

child protection

service.

5. Adopt and

implement

models to ensure

safe and efficient

procedures to

quickly trace

and recover all

children who go

missing from the

asylum system.

3. Urgently

review law, policy

and practice

in relation to

missing children.

4. Develop

explicit national

frameworks for

identifying child

victims of

trafficking under

Danish law.

3. Clarify, review

and revise

regulations

concerning

detention.

4. Undertake a

baseline study on

children missing

from the asylum

system.

3. Develop an

updated anti-

trafficking

strategy.

UUI, Alm.del - 2017-18 - Bilag 122: Materiale ifbm. UNICEF´s foretræde for udvalget d. 20/3-18

Protected on Paper? An analysis of Nordic country responses to asylum-seeking children

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Annex 1. Research protocol:

Ethical safeguards

Prior to data collection

Research purpose and design:

�½

This research project has been developed by UNICEF Office of Research – Innocenti and

the UNICEF National Committees (NatComs) in the Nordic countries (Denmark, Finland,

Iceland, Norway and Sweden) in line with the UNICEF Procedure for Ethical Standards in

Research. The project’s purpose is to strengthen safeguards for children going through the

asylum process in the Nordic countries.

Overall management of the project lies with Bina D’Costa (UNICEF Office of Research

– Innocenti) and the research is being managed and supervised by two experienced

researchers, Kevin Byrne and Claus Bech Hansen.

An initial review of the asylum processes and related legislation in the Nordic countries

has already been undertaken pro bono by DLA Piper. The research methodologies will

include comparative analysis of the DLA Piper material, a review of the relevant literature,

and semi-structured interviews and focus group discussions (FGDs) with key in-country

respondents. UNICEF Innocenti and the Nordic NatComs will partake in the development

of data collection methods and processes. It is also the aim to seek input from children and

adolescents who are currently in the asylum process or have recently been through it. The

project’s management and researchers are willing to present the research framework to

an internal or external ethics committee to ensure that safeguards are upheld in relation to

the collection of data from children.

�½

Research subjects:

�½

Each of the NatComs will take responsibility for identifying key respondents in their

respective countries and facilitating FGDs and data collection. The researchers will seek

to maximize children’s input by reviewing existing research studies. In addition, two FGDs

with asylum-seeking children aged 12–18 years are envisaged. These will take place in

locations with which the children are familiar, and in a language they understand and

are comfortable with. Interpreters experienced in communication with children will be

employed if necessary.

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Qualification and training of researchers and facilitators:

�½

The researchers will seek to work with groups of children – balanced in terms of age,

gender, nationality and legal status – who already know one another and are preferably

familiar with the FGD format. As the time available for training or piloting is limited, each

FGD will be run by an experienced facilitator already familiar with the group and fluent in

its various languages. The facilitator will be provided with consent forms, questionnaires,

discussion points and any other tools required, and will be supported appropriately

by the researchers and the relevant NatCom. Kevin will provide overall quality control

and oversight of the process. He is an experienced researcher with specific expertise

in facilitating and supporting child-led research, and involving children in research and

advocacy. His experience includes the design, management and implementation of

research; the development of age-appropriate tools and techniques; and the provision of

training to facilitators, co-leaders and recorders.

During data collection

Information sharing:

�½

Children will be thoroughly informed about the purpose of the research; how the FGDs will

contribute to the research and how the children’s input will be used; the types of questions

they will be asked; the length of the interviews or FGDs; the anonymity of respondents

and, in case of FGDs, the confidentiality of responses; participants’ rights to referral and

complaint mechanisms; and the fact that respondents will not be remunerated for their

participation.

Assent and consent:

�½

Child and legal guardian will be asked verbally for their consent to attend the FGD. Following

thorough information sharing in situ, the child will be asked for her/his written agreement

to participate, and written consent will be requested of the guardian too, if present. It will

be made clear to participants that they are not obliged to respond to all questions, and that

they may withdraw at any time. It is not the intention to photograph any child respondent

and no additional consent format has been developed for this purpose. Where a facilitator

wishes to record the session, explicit permission to do so will be sought from participants.

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Referral and complaints:

�½

Each NatCom will put in place referral and complaint mechanisms to ensure that

participants can decline further participation in the project or submit complaints about the

way the research is conducted.

Vulnerable respondents:

�½

The project recognizes the high probability that all child participants are likely to be

vulnerable, and will ensure that the vulnerability of individual participants is recognized

and taken into account in the research process. The project will not target especially

vulnerable children as respondents.

Safe and confidential space:

�½

To ensure the protection of participants, data collection will only take place where a safe

and private space for interviews and/or FGDs can be identified. The location should include

a space for participants who choose to withdraw from discussions, and snacks and drinks

should be made available to all participants.

Following data collection

Feedback:

�½

Each NatCom will be responsible for providing appropriate feedback to the child

respondents and for sharing the findings and recommendations of the final report.

Acknowledgements:

�½

Each NatCom will agree with participants a format for acknowledging their input to the

final report.

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Annex 2. Research framework:

A child rights-based approach

a. Terminology

One of the key differences that distinguishes the migration/asylum approach from a child

rights-based approach is its tendency to define the child primarily by her or his legal status

and to assign entitlement to rights and access to services according to the child’s place in

the asylum process, rather than on the basis of the individual child’s needs. This is often

reflected in the definitions and terminology used – migrant, refugee, returnee, beneficiary

of international protection, unaccompanied minor, etc. In line with the recommendations

of the Committee on the Rights of the Child,

this report takes the perspective that every

child, whatever her or his migration or asylum status, is first and foremost a child with full

entitlement to all of the rights enshrined in the Convention on the Rights of the Child; and

that all governments and duty bearers have a moral and legal responsibility to realize those

rights for all children in their care.

231

In the absence of a suitable term – agreed across both the migration/asylum and child rights

discourses – that emphasizes the child rather than her or his legal status, the present research

uses the term ‘asylum-seeking child(ren)’ throughout. This term relates explicitly to the brief

for the research, but also takes account of the fact that all migrant children are dealt with

under asylum legislation in the Nordic region. Thus, unless otherwise specified, the term

‘asylum-seeking children’ refers to all migrant and refugee children in country. In line with the

Convention, the term ‘child’ in this research refers to anyone under 18 years of age, whether

accompanied or unaccompanied, unless otherwise specified. Although the report refers

occasionally to ‘child asylum seeker’, ‘refugee children’ or ‘migrant children’, other terms such

as ‘foreigner’, ‘alien’, ‘third country national’ or ‘unaccompanied minor’ are used only when

quoting directly from national legislation or other sources.

b. Sources

Primary data were obtained through a series of semi-structured interviews with key informants

in the region. The regional expert conducted a total of 29 interviews during a field visit

that took in all five countries between 21 October and 10 November 2017. UNICEF National

Committees (NatComs) in the Nordic region originally proposed lists of potential interviewees

in country. These were assessed in light of their potential value as key respondents. As the

matrix of indicators was developed, each list was revised and expanded, particularly to include

representatives of the police and child protection services. The consultant devised a schedule

of interviews across the region, based on respondents’ availability and the logistics of travel,

231 Committee on the Rights of the Child,

Report of the 2012 Day of General Discussion on the Rights of All Children

in the Context of International Migration,

Geneva, 28 September 2012.

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and this was agreed with the NatCom representative who facilitated travel, translation and

logistics in each country.

Secondary data were drawn from a review of the literature on refugees and migrants in Europe

and in the Nordic states. The main focus was on European databases and on research and

studies conducted post-2014, although earlier research was also reviewed where considered

relevant. There was inevitably a data imbalance between European Union (EU) member

countries and non-member countries, as non-members are excluded from Eurostat and other

vital databases. The data gap was particularly severe in relation to Iceland, which is not an EU

member country, but participation across the region in cross-country studies was generally

inconsistent anyway, regardless of EU status. Most research studies, whether EU-sponsored

or independent, have focused on specific issues or categories of children, rather than on

asylum-seeking children per se, with the majority examining the situation of unaccompanied

and separated children. Although much of the decision-making around asylum-seeking

children occurs at the local level, the research team lacked the resources to systematically

trawl through the relevant literature at local authority level, although some local evaluations

were reviewed.

c. Analytical framework

The research was not expected to identify major inconsistencies between national and

regional/international legislation, but rather focus on implementation, enforcement and

practice on the ground, so as to provide concrete and constructive recommendations to the

Nordic governments. While acknowledging that procedural safeguards are crucial as a means

of ensuring that the rights of asylum-seeking children are translated into meaningful practice,

the initial legal analyses indicated that such safeguards could not on their own guarantee

the full protection of children’s rights, and that a range of factors operating at various levels

can either support or impede the practical realization of children’s rights on the ground. The

research focus therefore moved beyond the simple identification of procedural safeguards (or

lack thereof) to conduct a wider analysis of practice on the ground.

It was crucial to adopt a child rights lens through which to assess law, policy and practice

across a spectrum of domains related to asylum-seeking children. Using the Convention

on the Rights of the Child definition of a child rights-based approach as a foundation, an

analytical framework

232

was adopted from the Council of Europe based on how the four

principles underlying the Convention (non-discrimination; best interests; right to life, survival

and development; and child participation) translate into practice on the ground. It sets the

parameters of any assessment of policies, strategies, actions or activities in terms of how far

they are:

232 Adapted from Kevin Byrne’s contribution to

Refugee Children and Minors in Europe: The role and responsibilities

of local and regional authorities,

adopted by the Current Affairs Committee, Congress of Local and Regional

Authorities, Council of Europe, Strasbourg, on 18 October 2017.

100

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(i)

Child-centred:

The Committee on the Rights of the Child asserts that “a child is first and

foremost a child, whatever the condition he or she may find himself or herself in”.

233

This implies that it is the best interests of the individual child – rather than her or his

legal or asylum status – that should always be the primary consideration in determining

legislative, policy and service responses to asylum-seeking children, which can be subject

to rapid change even as individual children pass through the asylum system.

(ii)

Equivalent:

The principle of non-discrimination stipulates that all of the children in

a country should enjoy full access to their rights, irrespective of the child’s or her/his

parent’s: race; colour; sex; language; religion; political or other opinion; national, ethnic

or social origin; property; disability; birth; sexual orientation; gender identity; and legal or

other status. National authorities should therefore try to provide asylum-seeking children

with the same level of access to entitlements and services as nationals enjoy, and strive

to reduce the barriers (e.g. language, location) that restrict equal access.

(iii)

Inclusive:

Although full integration in host communities may not be a feasible long-term

option for all asylum-seeking children, authorities should adopt an inclusive approach

towards every child for the duration of her or his stay in country, irrespective of the child’s

legal status. Ideally, national and local responses should aim to facilitate child asylum

seekers’ rapid referral to, and acceptance by, mainstream child and family services, rather

than create or support parallel systems, structures or services for this group.

(iv)

Participative:

Involving children as far as possible in decision-making at the individual,

family, organization and policy levels is key to the full realization of their rights, and it

also enables more effective and efficient action. Child participation involves not only

the provision of mechanisms to allow children and young people to make their opinions

heard, but also, more importantly, ensuring that due weight is given to a child’s views

when making decisions that affect her or him.

233

As outlined in:

Report of the 2012 Day of General Discussion on the Rights of All Children.

101

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d. Tools and techniques

The detailed checklist underlying the framework was expanded further to enable a deeper

analysis of the rights orientation of individual activities as well as the wider framework of

response, based on the criteria of availability, accessibility, acceptability and quality outlined

by the Committee on Economic, Social and Cultural Rights.

234

Although the checklist does not

enable quantitative measurement of every activity, responses to clusters of questions can

indicate how far a specific activity or service adopts a rights-based approach to translating a

child’s entitlements into reality. Taken together as a matrix, these responses enable evaluation

of both the social, institutional, organizational and policy frameworks that determine asylum-

seeking children’s protective environment, and the strategic and operational practices in each

country.

The questions relate to five priority domains: general context, asylum process, education,

health, and child protection. Indicators for social protection, housing and employment were

not pursued due to time and resource constraints. The questions were devised in line with

guidelines

235

and models of good practice issued by UNICEF, UNHCR, the Council of Europe,

the Fundamental Rights Agency (FRA), the European Migration Network and other relevant

agencies, and adapted and expanded to facilitate the measurement of activities at operational,

strategic and governance levels. Several agencies have produced or updated guidelines since

2015. These have proved useful but most tend to relate to a particular issue or situation and

they are not usually linked or connected to one another. The level of detail provided can also

vary considerably, from general principles to quite detailed operational recommendations.

Many focus only on unaccompanied children and had to be extrapolated to all asylum-seeking

children.

234 Committee on Economic, Social and Cultural Rights, General comment No. 14: The Right to the Highest Attainable

Standard of Health (Art. 12), E/C.12/2000/4, United Nations, Geneva, 11 August 2000, cited in Spencer and Hughes,

Outside and In.

235 See Annex 3.

102

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Annex 3. Guidelines incorporated

in the good practice checklist

Access Info Europe and Global Detention Project,

The Uncounted: Detention of migrants and

asylum seekers in Europe,

Access Info Europe/Global Detention Project, December 2015.

Arnold, Samantha,

Closing a Protection Gap. National report 2010–2011,

Irish Refugee Council,

Dublin, 2012.

Byrne, Kevin,

Law, Policy and Practice Affecting Migrant and Refugee Children in Europe,

[cf f/n 174]

internal document, UNICEF, Florence, 2016. [Unpublished paper].

Committee on the Rights of the Child,

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Annex 4. Key respondents

Norway

NOAS [Norwegian Organisation for Asylum Seekers], Oslo, 6 November 2017

Ombudsman for Children in Norway, Oslo, 3 November, 2017

Save the Children Norway, Oslo, 3 November 2017

Norwegian Red Cross, Oslo, 6 November 2017

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Health Centre for Undocumented Migrants, 3 November 2017

Valsda Reception Centre for Unaccompanied Minors (cancelled)

Iceland

Ombudsman for Children, Reykjavik, 10 November 2017

Save the Children Iceland, Reykjavik, 9 November 2017

Icelandic Red Cross, Reykjavik, 10 November 2017

Icelandic Directorate of Immigration, 10 November 2017

Hafnarfjörður Municipality, Reykjavik, 9 November 2017

Government Agency for Child Protection (cancelled)

Sweden

Ombudsman for Children in Sweden, Stockholm, 23 October 2017

County Administrative Board of Stockholm, Missing Children Section (cancelled) and Trafficking

Section, Stockholm, 24 October 2017

Swedish Migration Agency, Stockholm, 25 October 2017

Swedish Refugee Advice Centre Children’s Unit, Stockholm, 24 October 2017

Swedish Red Cross (cancelled)

Swedish Police, Street Officers Unit for UASC, Stockholm, 24 October 2017

Swedish Police, Strategic Unit at the National Border Policing Section, Stockholm, 24 October 2017

Södertalje Municipality (cancelled)

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Denmark

Danish Refugee Council, Copenhagen, 1 November 2017

Gribskov Transit and Child Centre, Gribskov, 31 October 2017

Udlændingestyrelsen [Danish Immigration Service], Copenhagen, 1 November 2017

Child Services, Copenhagen Municipality (Valby/Vesterbro/Kongens Enghave), Valby,

2 November 2017

Parliamentary Ombudsman for Children (contacted)

Børnerådet (contacted)

Copenhagen Police (contacted)

Finland

Refugee Advice Centre, Helsinki, 27 October 2017

Central Union for Child Welfare, Helsinki, 26 October 2017

Save the Children Finland, Helsinki, 26 October 2017

Federation of Mother and Child Homes and Shelters, Helsinki, 27 October 2017

Finnish Immigration Service, Helsinki, 26 October 2017

Refugee rights attorney (on the condition of anonymity due to safety concerns), Helsinki,

27 October 2017

Espoo Reception Centre, Espoo, 30 October 2017

Helsinki Police Department, Immigration Affairs Unit, Helsinki, 30 October 2017

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PHOTO CREDITS

The photographs in this publication depict asylum-seeking children, many of whom have

already arrived in Nordic countries, and others who have arrived in, or are on their way to

destination countries in the Nordic region or elsewhere.

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