Unaccompanied Immigrant Children: A Growing Phenomenon with Few Easy Solutions

Children under the age of 18 traveling without their parents or an adult guardian have always been a part of global migration flows. Within the past decade or so, however, their numbers have grown.

Children migrate for many reasons. Some are asylum seekers fleeing war, gangs, or persecution in their home countries, while others are victims of sex trafficking or slavery. Children may also migrate in search of economic opportunities, to join parents or relatives already living in the destination country, or to flee abusive situations in their home countries.

Unaccompanied children may arrive clandestinely, hidden by traffickers or paid smugglers, or they may attempt to migrate through normal immigration checkpoints. They may present false documents to border officials, or arrive in desperation with no documents at all. They may be apprehended while trying to enter the destination country, or evade border patrols altogether.

In short, the motivations and methods of these young migrants are varied and quite similar to those of adults — wherever global migration is flowing, children are caught up in the current. And like all migrants, the way unaccompanied minors are received, processed, held, returned, or integrated depends on the country in which they arrive.

There is at least one key difference, however, between unaccompanied immigrant children and adult migrants. Young migrants are more vulnerable than adult migrants and are less likely to be seen, at least in the long term, as potentially productive members of society by host countries. Their status as minors has called into question whether some special exception to immigration law or procedures must be created for them.

By and large, the answer has been "yes" — at least in the United States and in European countries, which are now making concerted efforts to address the status of unaccompanied children in immigration laws and policies.

Yet, proposals to establish special protective status for unaccompanied migrant children have generated considerable controversy within the United States and many countries in Europe. Some believe that a special status for unaccompanied minors will encourage more such migration. Consequently, many laws and policies appear at odds with each other, as states struggle with whether they should protect immigrant minors because they are children or punish them because they crossed borders illegally.

Definitions

The terms Unaccompanied minors, unaccompanied alien children, child migrants, child immigrants, unaccompanied migrant children, and juvenile immigrants are often used interchangeably and generally refer to immigrants who are under the age of 18 and are not under the care of a parent or legal guardian. This includes children fleeing violence or unrest, seeking work, or who are victims of trafficking.

Although a number of countries deal with the immigration of unaccompanied minors, this article provides an overview of policy responses in the United States and EU Member States, where flows are large and data is readily available. It puts unaccompanied immigrant children in context, explaining the factors that cause them to migrate and their countries of origin. It then discusses the particular challenges of creating a coherent, sustainable, and consistent approach towards unaccompanied minors, analyzing current policies and the changing trends that policymakers must take into account as they address the phenomenon of child migration.

Overview of Unaccompanied Child Migration

Both the United States and the European Union define an unaccompanied minor as an immigrant who is under the age of 18 and not in the care of a parent or legal guardian at the time of entry, who is left unaccompanied after entry, and who does not have a family member or legal guardian willing or able to care for them in the arrival country. In the European Union, this designation refers explicitly to children who are not EU citizens (third-country nationals) or who are stateless.

Although child migration to the United States and the European Union has always been a part of global migration flows, historically children arrived through government-sponsored resettlement programs. Such programs were explicitly related, often controversially, to foreign policy in a more easily identifiable way than current policies towards child migrants.

In the United States, for example, from 1960 to 1962 the government coordinated Operation Peter Pan, through which Cuban families who were opposed to the Castro government sent nearly 14,000 children to Miami. In 1975, U.S.-funded Operation Babylift placed an estimated 3,000 orphaned Vietnamese children with adoptive parents in the United States and around the world.

There are no official examples of such resettlement programs in the European Union, perhaps owing to the continent's more restrained approach to refugee resettlement programs.

The number of children on the move outside of resettlement programs has grown, however, in part due to the growth in irregular migration generally but also because increased border enforcement in the United States and Europe has meant that migrant parents have begun sending for their children rather than returning home to retrieve them.

Such migration to the United States is fueled by economic and social instability in Mexico and Central America, where most child migrants begin their journeys. In Europe, the majority of unaccompanied minors are from poverty-stricken African nations, Iraq, and Afghanistan, where recent wars have displaced many children.

Unaccompanied Child Immigrants in the United States

Although unaccompanied children come to the United States from all over the world, between 73 and 75 percent of unaccompanied children are boys from El Salvador, Honduras, and Mexico according to the Office of Refugee Resettlement (ORR). In 2009, around 80 percent were between the ages of 15 and 18. Since many boys begin working around these ages, and since travel is safer for boys, they are more likely than girls to migrate alone.

A child apprehended by the Department of Homeland Security (DHS) either via Customs and Border Protection (CBP) at the border or Immigration and Customs Enforcement (ICE) in the interior of the United States must go through the following process:

• Through a translator, ICE or CBP determines whether the child is unaccompanied.
• If the child is unaccompanied, he or she is detained for up to 72 hours in a facility separate from adults, where the agency checks the child's nationality, determines the child's age through physical exams and psychological evaluations, and performs a background check. If the child has no identification, these checks are done based on what the child tells the evaluating official.
• The child is given an explanation of his or her rights and a list of free legal services. If the child does not withdraw their application for admission, or if they wish to file an asylum claim, the child is transferred to ORR within 72 hours. ORR is then charged with the care, custody, and placement of the child. If the minor has a criminal record or is considered violent, he or she may be held in a secure facility. At this point, the minor may have access to a lawyer.

Because of the limited avenues for obtaining legal immigration status, most unaccompanied children voluntarily withdraw their petition for admission and are sent home. Those who attempt to stay in the United States have three primary options for relief.

First, they can petition for asylum, which requires proving fear of persecution based on race, religion, political opinion, or membership in a social group or nationality. Second, they can file for Special Immigrant Juvenile Status, which is conferred upon immigrant children who can prove abandonment, neglect, or abuse and can lead to permanent settlement and, eventually, citizenship. A third option, when appropriate, is to apply for a T visa, which offers protected status to victims of human trafficking. Because cases of trafficking are often difficult to prove, however, and because many victims who would be eligible for T visas are too frightened to come forward, this option is the least pursued by unaccompanied minors.

According to the Congressional Research Service, more than 80,000 children have been apprehended annually since 2001, the vast majority having migrated from Mexico. Children from Mexico and Canada are nearly always repatriated immediately, since most lack asylum claims and because the United States has expedited repatriation agreements with these countries.

Following a few years of record high levels of unaccompanied children in ICE custody, 6,074 children were placed in ORR care in 2009, a decrease of 35 percent from 2007 (the most recent years for which numbers are publicly available); the drop follows an overall dip in immigrant apprehensions nationwide. According to ORR, 1,871 children, on average, were in the agency's care daily in 2010.

Currently, ORR contracts with 43 facilities for housing unaccompanied migrant children. These facilities must meet minimum levels of education, health care, mental health care, legal, and family reunification services. The level of security in these facilities ranges from nonsecure and group homes to staff-secure (children continuously under supervision of staff) and standard detention.

The U.S. Approach

Immigration and asylum law in the United States has not historically afforded protections to children based on their status as minors, and largely makes no distinction between adults and children.

This approach stands in direct contrast to U.S. family law, which follows the principle of best interests of the child, or simply "best interests" — a precept meant to ensure that a child's welfare is paramount to any legal decision or policy, even if it means restricting parental control.

The lack of distinction between adults and children meant that for many years, unaccompanied minors were treated much the same as other unauthorized migrants from detention through the deportation process or the granting of legal immigration status. Throughout the 1980s, lawyers and advocacy organizations alleged that the Immigration and Naturalization Service (INS), the agency that preceded DHS, was treating children in its custody harshly and inhumanely.

These practices were challenged in 1993 in the Supreme Court case Flores v. Reno, in which the court ruled in favor of the INS and upheld its policies toward unaccompanied children. Despite the ruling, in 1997 the parties went on to draft a settlement known as the Flores settlement agreement, which established that children should not be institutionally confined and should be released from immigration detention as quickly as possible.

The settlement also mandated that new standards of care and treatment be implemented for minors in INS custody. In 1999, INS developed a Juvenile Protocol Manual (which has subsequently been adopted and updated by DHS) to adhere to the settlement. Substantively, however, many conditions and practices regarding the treatment of unaccompanied minors remained the same after the development of the manual.

Investigations published by Amnesty International in 2003 and the Women's Commission for Refugee Women and Children in 2002 found that while in INS care, children were routinely being shackled, over one-third of children were put in secure detention facilities alongside adults or juvenile offenders, and children seeking asylum were placed into adversarial courtroom proceedings without guaranteed access to legal representation.

Beginning in 2003, three related things started to change these practices:

• The investigations by human rights groups and the Office of the Inspector General in the Department of Justice, plus widespread condemnation from advocacy groups representing children, shed a more public light on the conditions of unaccompanied minors in detention.
• Due to the increasing number of children being apprehended and the intensified scrutiny, the current methods of detaining unaccompanied children were determined to be unsustainable.
• Prior to the dismantling of INS and the formation of DHS in 2003, INS detained unaccompanied children until their cases were resolved. Under DHS, however, the responsibility for providing accommodations and care for unaccompanied children was transferred to the Division of Unaccompanied Children's Services (DUCS) of ORR, which was created as part of the Homeland Security Act of 2002.

In addition, in 2008, President George W. Bush signed into law the Trafficking Victims and Protection Act (TVPRA), with the following five provisions that apply to unaccompanied immigrant children, particularly asylum seekers:

1. Courtroom proceedings: whereas child asylum seekers were placed in courtroom proceedings where the decision regarding removal had already been made, they are now permitted to submit asylum claims to the Asylum Office of U.S. Citizenship and Immigration Services (also part of DHS) in a nonadversarial process.
2. Asylum applications: unaccompanied children seeking asylum used to be held to the same standards as adults and were disqualified if they submitted applications more than a year after entering the United States. TVPRA permits minors to lodge applications beyond a year, which helps juveniles who might not be ready or able to divulge the circumstances that forced them from their home countries.
3. Return to last safe transit country: Prior to TVPRA, asylum-seeking children could be returned to the last safe country of transit prior to reaching the United States and would be required to submit their applications for asylum from there. They are now permitted to remain in the United States while they file their petitions.
4. Age determination: A particularly contentious issue has been the methods used to determine age. X-rays were the standard technology used for this purpose, despite the unreliability of the results. Now, multiple forms of age determination must be considered (e.g., interviews, documentation, assessment by doctors, dental analysis, skeletal assessment, and psychological evaluation).
5. Legal representation: While children are still not guaranteed access to legal counsel, TVPRA requires the Department of Health and Human Services, the department overseeing ORR, to provide access to legal representation "to the greatest extent practicable."

Nearly all observers agree that the treatment of unaccompanied children in the United States has significantly improved. Most children are now placed in nonsecure or staff-secure facilities where they have access to recreation, education, and health care. Today, according to ORR, fewer than 10 percent of children are in secure facilities, and those that are have a history of prior criminal offenses or violent behavior.

Challenges and Criticisms of the U.S. Approach

Although these improvements indicate the United States is moving toward a system that takes into account the best interests of the child, significant challenges remain.

First, the creation of DUCS, which is a separate government entity, to handle unaccompanied children has generated tension between ORR and ICE. The two organizations remain divided over the central question mentioned earlier: whether unaccompanied children should be treated as vulnerable victims or as unauthorized immigrants.

Second, although the treatment of and accommodations for unaccompanied minors have improved, most children are still deported. For example, 60 percent of the 215 asylum cases adjudicated in 2008 were met with an affirmative ruling for full asylum. Overall, this number represents .001 percent of the total number of children apprehended (including those repatriated to Mexico) in 2008. During the same year, just 700 children received Special Immigrant Juvenile Status and a mere 31 received T Visas.

Third, despite the best efforts of a number of nonprofit organizations and pro bono services to provide legal representation to unaccompanied minors in detention, the sheer number of children, most of whom are in facilities far from urban centers, means that the majority receive no counsel at all.

Many experts have noted that children need legal representation to petition successfully for asylum because children may have been traumatized by their experiences and may be unable to describe them. They may also find it difficult to articulate their fears of return or otherwise effectively represent themselves.

Unaccompanied Children in the European Union

Although the numbers and countries of origin vary depending on the Member State, it is possible to make some generalizations about the characteristics of unaccompanied children in the European Union. The two main data sources come not from border apprehensions, but from asylum claims and the facilities where unaccompanied minors are placed after they are apprehended. According to Eurostat, the statistical office of the European Union, 12,200 minors registered for asylum status in Europe in 2009.

It is worth noting that not every EU country keeps accurate records of this information, and methods of data collection are not harmonized cross Member States. The data presented here is the most accurate available to date.

In most Member States, the majority of unaccompanied children apply for asylum. In addition to being a consequence of some EU Member States' favorable policies toward asylum seekers, this may also be the case because asylum is one of the only ways in which an unaccompanied minor can receive legal status.

Over the past four years, most unaccompanied minors who lodged asylum claims in the European Union were boys between the ages of 16 and 18 and were from poverty-stricken African nations or from Afghanistan and Iraq, where children have been displaced by recent wars. In 2008, Afghanistan topped the list of sending countries with nearly 3,400 claims (see Table 2).

Applications for asylum have increased dramatically in Sweden and Finland over the past several years and have steadily grown in the United Kingdom (see Table 3). In 2008, the United Kingdom received more asylum applications from unaccompanied minors than any other EU country, followed by Sweden, Germany, and the Netherlands.

Sweden and Finland have historically granted higher percentages of protected status to child asylum seekers, while Germany has rejected far more applications than it has accepted (see Table 4).

Not all children who enter EU Member States are asylum seekers or end up applying for asylum. Many migrate to reunite with family members, work, or escape abusive family situations while others are victims of trafficking. As such, the asylum numbers only paint one part of the picture of unaccompanied child migration in the European Union. In fact, as in the United States, the flows of children are much greater than the asylum application numbers indicate.

Over 20,000 children were in the care of public authorities in EU Member States in 2008, with Italy and Spain having the highest numbers over the past several years (see Table 5).

In Spain's case, the European Migration Network attributes this trend to tighter immigration controls, which have strengthened networks of migrant smugglers who know that children are less likely than adults to be returned.

What happens after these child migrants are placed in so-called "reception centers" depends on the conditions of their arrival. If they are not seeking asylum, efforts are made to reconnect them with family members in the arrival country or in their home country.

In some countries, they are assigned a guardian ad litem — a court-appointed individual to represent the child's best interests — if they have no family members present. Other countries assign a social worker or other representative to look after their welfare while they are in the country.

Since few minors are forcibly deported, policies vary from country to country regarding what happens to those who do not receive protected status. In Portugal, for example, unaccompanied minors are treated the same as Portuguese minors; they are permitted access to residence permits and social benefits.

The United Kingdom appears to be one of the few EU countries where the detention of unaccompanied minors has become a national issue, after the incarceration of thousands of children in immigration removal centers made headlines in 2010. The new government has pledged to end the practice sometime in 2011.

The EU Approach

The greatest difference between the European Union and the United States in regards to unaccompanied children is how they apply the principle of best interests of the child.

As previously mentioned, although the best-interests principle permeates U.S. domestic family law, and although the immigration detention system attempts to incorporate this principle in its accommodations for immigrant children, the concept is nearly absent from U.S. immigration and refugee law.

In Europe, the approach is quite different. EU directives and legislation, including provisions that address unaccompanied children, are always guided by the best-interests principle.

EU Member States, unlike the United States, have ratified the United Nations Convention on the Rights of the Child, which establishes the best interests of the child as governing all major policies regarding the treatment of minors. Other relevant legislation includes the Charter of Fundamental Rights of the European Union and the Return Directive (see Table 6).

In addition to these laws and directives, the European Commission, the European Union's executive branch, adopted in May 2010 an action plan to create a common and comprehensive European approach to increasing protection of unaccompanied minors within its borders.

The action plan urges Member States to collect comprehensive and comparable data on child migration and assistance, take measures to prevent trafficking and dangerous migration, establish common standards for guardianship and legal representation, and find "durable solutions in the best interests of the child."

In practice, this has meant that unaccompanied minors are afforded the following protections:

1. Accommodations and detention: Secure detention is last resort, and some Member States will not place unaccompanied minors in secure facilities under any circumstances. In general, there is a wide range of accommodations provided for unaccompanied minors in EU Member States. In many nations, the determination of where a minor is placed is based on the individual's specific needs rather than the availability of beds.
2. Access to legal representation: With the exception of the United Kingdom, all EU Member States appoint a guardian if a child does not have one currently residing in the arrival country. In the case of child asylum seekers, the guardian is appointed from a nongovernmental organization or government agency and acts as a legal representative (guardian ad litem).
3. Detention and return: Whereas in the United States most children are returned to their home countries, immigrant children in EU Member States are returned to their home country as a measure of last resort and only if it is in their best interest. As a result, the number of unaccompanied minors who are returned is quite low. Deportations generally take place through programs that provide specific return and reintegration assistance.
4. Age determination: EU Member States use a combination of techniques to determine the age of a minor and to certify minor status, including interviews and documentation, assessment by doctors, dental analysis, skeletal assessment, and psychological evaluation. Nevertheless, if the minor's age is still in question, authorities are likely to grant the benefit of the doubt to the minor in question.

Challenges and Criticisms of the EU Approach

As in the United States, the overarching EU approach to unaccompanied minors is not without its detractors.

On the one hand, many critics think EU policies are far too lenient and encourage unauthorized juvenile migration. On the other hand, immigrant advocates note that the application of welfare-oriented policies is inconsistent from country to country, and policies that are lenient in one country might be detrimental to child welfare in another.

The lack of coordination in data-collection techniques, asylum procedure, and policies on interception is evident and largely results from the particular experiences countries have with unaccompanied minors. In addition, differences in the application of the best-interests principle are clear in almost every aspect of immigration policy.

Some countries, for example — most notably Germany, France, and Portugal — will often refuse entry to an unaccompanied minor who has not lodged an asylum claim prior to arrival. In these cases, minors are returned as quickly as possible to their country of origin or, in the case of Germany, to the most recent safe country through which they traveled.

Another area of difference is the application of policies based on age. Although the age limit for being considered an unaccompanied minor is generally 18-years-old, Member States frequently use lower age limits, such as 16, in applying immigration policies.

Accommodations for unaccompanied minors also vary widely across Member States, from residential homes to hostels. The fairly relaxed approach to accommodations in some countries led to large numbers of youth disappearances from housing facilities, particularly in Belgium, the Czech Republic, Finland, Ireland, Italy, the Netherlands, Poland, and the United Kingdom.

According to a comparative study by the European Migration Network, it is believed the disappearances were a result of a lack of oversight in these facilities. While officials interviewed in these countries speculate that most of the youths escaped in order to reunite with family members, there is also some evidence that traffickers may have targeted insecure facilities and kidnapped some minors being held there.

Finally, countries vary significantly not only in the number of petitions they receive, but also in the overall percentage they approve or reject (see Table 4). Germany rejects most applications for child asylum because their stringent criteria require petitioners to make a case for asylum status themselves, something that most children are not capable of doing alone. Meanwhile, the Swedish government has adopted more child-friendly policies that lower the threshold for receiving asylum, and is thus able to approve most applications received.

Conclusion

Although the complexities and issues of child migration are nearly identical in both regions, the United States and the European Union have adopted different responses due to influences that are partly circumstantial, partly cultural, and partly political. Neither region acts consistently or holistically, even on fundamental issues.

Data collection and transparency are major challenges to analyzing current policy and developing a holistic approach, as is the lack of a unified protocol for identifying and differentiating between children that are unaccompanied, asylum seekers, and victims of trafficking.

In the near future, destination countries will have to grapple with some very difficult questions. What protections should be afforded for minors fleeing gangs and societal collapse due to drug militias, such as the violent transformation seen in Mexican cities just across the border from the United States, or the persistent problems with drug trade-related corruption in Afghanistan? What is the best response to the reality that many unaccompanied minors, although technically children, are economic migrants seeking work? And how to balance the need to protect unaccompanied minors from traffickers by placing them in secure facilities with the need to provide them with an environment that is not overly restrictive, resembling a de facto prison?

As demonstrated by the responses of the United States and the European Union, these questions do not have easy answers. The United States is faced with competing agencies and a divided legal approach to migrant children. The European Union holds the guiding principle of best interests of the child, but differing rates of protection indicate ambivalence toward fully embracing a welfare model for all unaccompanied child migrants.

For both regions, the most difficult challenges related to the migration of unaccompanied children lie ahead. Developing consistent and appropriate policy responses will require the constant reevaluation of bedrock values as well as of legal measures and programs.

Sources

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Legislation

Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. Available online.

Council Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. Available online.

Flores vs. Meese Stipulated Settlement Agreement. Available online.

Homeland Security Act of 2002, 6 U.S.C.A. §462 (2008). Available online.

H.R. 7311: William Wilberforce Trafficking Victims Protection Reauthorization Act. Available online.

Reno v. Flores, 507 U.S. 292 (1993). Available online.