Art. 22 Geflüchtete Kinder
(1) Die Vertragsstaaten treffen geeignete Maßnahmen, um sicherzustellen, daß ein Kind, das die Rechtsstellung eines Flüchtlings begehrt oder nach Maßgabe der anzuwendenden Regeln und Verfahren des Völkerrechts oder des innerstaatlichen Rechts als Flüchtling angesehen wird, angemessenen Schutz und humanitäre Hilfe bei der Wahrnehmung der Rechte erhält, die in diesem Übereinkommen oder in anderen internationalen Übereinkünften über Menschenrechte oder über humanitäre Fragen, denen die genannten Staaten als Vertragsparteien angehören, festgelegt sind, und zwar unabhängig davon, ob es sich in Begleitung seiner Eltern oder einer anderen Person befindet oder nicht.
(2) Zu diesem Zweck wirken die Vertragsstaaten in der ihnen angemessen erscheinenden Weise bei allen Bemühungen mit, welche die Vereinten Nationen und andere zuständige zwischenstaatliche oder nichtstaatliche Organisationen, die mit den Vereinten Nationen zusammenarbeiten, unternehmen, um ein solches Kind zu schützen, um ihm zu helfen und um die Eltern oder andere Familienangehörige eines Flüchtlingskinds ausfindig zu machen mit dem Ziel, die für eine Familienzusammenführung notwendigen Informationen zu erlangen. Können die Eltern oder andere Familienangehörige nicht ausfindig gemacht werden, so ist dem Kind im Einklang mit den in diesem Übereinkommen enthaltenen Grundsätzen derselbe Schutz zu gewähren wie jedem anderen Kind, das aus irgendeinem Grund dauernd oder vorübergehend aus seiner familiären Umgebung herausgelöst ist.
The position paper below is drafted by the thematic network 'Refugee Children' of the National Coalition Germany - Network for Implementation of the UN Convention on the Rights of the Child. The signing associations and organisations are members ot the thematic network 'Refugee Children', including AWO Bundesverband, Diakonie Deutschland, DRK Bundesverband, terre des homme Deutschland, Bundesfachverband Unbegleitete Minderjährige Flüchtlinge, Pro Asyl, Deutsche Akademie für Kinder- und Jugendmedizin, World Vision Deutschland, Save the Children Deutschland, SOS-Kinderdorf and Deutsches Kinderhilfswerk. The thematic network consists of representatives of children's right organisations, NGOs, charities, UNICEF Germany, and UNHCR.
The National Coalition decided to adopt the position paper on the 23rd of Feb 2015.
The rights of refugee children:
Demands regarding the implementation of the UN Convention on the Rights of the Child
Independent of their residential status, refugee children have the same rights as all other children in Germany. However, the principles of non-discrimination and primacy of children's best interests often do not necessarily take effect in the reality of these children’s lives. For example, their rights to access to health care or to decent living conditions are restricted.
It is an essential element of the UN Convention on the Rights of the Child to recognise children as independent legal persons with special needs and rights. German provisions regarding asylum and aliens law mainly focus on the regulatory policy, and do not comply with the fundamental principles of the UN Convention on the Rights of the Child, primacy of children's best interests, non-discrimination, and participation.
This mainly affects children without any reliable perspective of permanent residence. Currently, approximately 50,000 minors undergo an asylum procedure, half of whom are merely tolerated, i.e. they have no prospect of residence and therefore limited social rights. Among them are also 9,000 children who live in Germany without parents as unaccompanied minor refugees, and who partly also do not have a secure residency status. Besides, there are also unregistered children, who therefore smart under particular constraints. There are no reliable estimates as to their number.
In the coalition agreement, the Federal Government held out the prospect of 'examining each political measure and each law as to whether they comply with the internationally agreed children's rights' (p. 99). Additionally, it declared its commitment in the coalition agreement to the 'UN Convention on the Rights of the Child […] [as] basis for dealing with minors who come to Germany unaccompanied as refugees' (p. 110).
Furthermore, in the coalition agreement the Federal Government announced some measures that affect the rights of refugee children:
• rise of the age of legal capacity to 18 years in the legislation on asylum procedure and residence (p. 110);
• modernisation of the guardianship law (p. 154);
• shortening of processing times of asylum procedures (p. 108);
• simplification of the requirements for issuing a residence permit to young people and adolescents (Section 25a Residence Act (Aufenthaltsgesetz)) (p. 108);
• reinforcing a welcoming culture and a culture of recognition in our country (p. 106);
• rapid implementation of the instructions of the Federal Constitutional Court regarding the Asylum Seekers' Benefits Act (Asylbewerberleistungsgesetz) (p. 110);
• expansion of limiting movement (referred to as mandatory residence) of asylum seekers and tolerated persons to the federal state in question (p. 109);
• guaranteeing the rights of children and their families (p. 99).
Based on these intentions of the Federal Government, the thematic network Refugee Children has developed demands on eleven issues, which will be explained hereafter.
1. Primacy of children's best interests for all measures
With the announcement of 'examining each political measure and each law as to whether they comply with the internationally agreed children's rights', the coalition agreement basically anticipated one demand of the UN Committee on the Rights of the Child. The same committee reminded the Federal Government in January 2014 to adjust the term “children's best interests”, which is often interpreted too narrowly in German law, to international standards.
The UN Convention on the Rights of the Child refers to it as 'best interests of the child', a term that does justice to the child as legal person. In Germany, issues of 'children's best interests' were by priority assigned to the youth welfare office and the family courts so far. However, the committee affirms that the primacy of children's best interests must be respected in all areas affecting children. In particular, this means that in any case where children and young people are affected by laws, administrative action or judgments, it must be considered to which extent the primacy of children's best interests is fulfilled.
The UN Committee on the Rights of the Child requested the Federal Government to develop processes and criteria for all parties and institutions that work with or have influence on children in order to ensure that the children's best interests are given priority. Of course, this applies also and in particular to regulatory parties, such as aliens departments, police authorities, accommodation centres for persons seeking asylum, and the Federal Office for Migration and Refugees. Before each decision affecting children, their interests must be collected according to age, evaluated and given priority when taking a decision.
However, the UN Convention on the Rights of the Child must form the basis for dealing not only with minors entering without their parents, but of course also with those coming to Germany with their parents.
In relation to implementation of the primacy of children's best interests pursuant to Art. 3 of the UN Convention on the Rights of the Child, the signing associations and organisations demand to examine all relevant existing legal regulations as well as new legislative proposals as to whether they comply with the primacy of children's best interests. The same applies to administrative processes, administrative and legal proceedings.
Administrative provisions and instructions that specify the application of existing laws and establish consideration criteria must include clear regulations as to the compliance with children's best interests. When taking decisions, authorities and courts must explain how the primacy of children's best interests has been taken into account.
Practicable processes and criteria must be developed for authorities, courts, ministries and parliaments in order to enable them to verify whether the provisions and their implementation comply with the children's best interests.
Representatives of executive, legislative and judicial authorities should be enabled to apply the principle of primacy of children's best interests.
Administrative processes, administrative and legal proceedings and laws that could affect children and young people should be examined as to whether an appropriate involvement of children or young people is ensured, as complying with the primacy of children's best interests involves, as a central principle, the involvement of children or young people. This is already practised at some points of family and youth welfare law.
The existing and planned asylum and residence law provisions must be examined regularly as to whether they comply with the non-discrimination principle. This involves, inter alia, the distribution and accommodation of children seeking asylum, as well as their healthcare provision.
2. Rise of the age of legal capacity to 18 years
The Federal Government's plans to raise the age of legal capacity to 18 years in the Asylum Procedure Act and Residence Act are to be welcomed. They enable the legislator to fill a protection gap in asylum and residence procedures. In addition, the provisions related with legal capacity should be removed from aliens law in order to comply with instructions under European law from the EU Reception Directive of 26 June 2013. Such provisions include the accommodation possibilities for unaccompanied minor refugees aged 16 and 17 in shared accommodations and the distribution policy for this group.
The signing associations and organisations demand to ensure the involvement of the minors pursuant to Art. 12 of the UN Convention on the Rights of the Child in decisions of asylum and residence law. This applies both to unaccompanied children and those coming with persons entitled to custody.
First of all, this means that minors must be informed comprehensively about the procedure, advised during all steps and consulted before decisions are reached. It is indispensable to implement an effective complaint management in order to give minors the opportunity to have decisions made by their representatives examined if these harm the interests of the individual.
3. Modernisation of guardianship law
The considerations about reshaping the guardianship law offer the opportunity to create a new and EU compliant representation right for unaccompanied minors in procedures under asylum and aliens law.
Under the provisions of European law, guardians should be allocated to unaccompanied minors. A provision for this allocation is that the children should suspend their parent’s guardianship. However, currently, family courts refuse some unaccompanied minors the establishment of suspension of guardianship pointing out that there is still sporadic contact to the parents in the home country. This de facto prevents the minors from receiving a guardian – a situation which is in breach of the provisions of European law.
The signing associations and organisations demand legal amendments to ensure that German law complies with EU law with respect to the establishment of suspension of guardianship.
Art 25 (1)(a) of the EU procedural directive of 26 June 2013 (recast) furthermore demands that the representative shall have the necessary expertise. So far, this has neither been verified nor has the respective expertise been taught systematically.
The signing associations and organisations demand to create the opportunity to automatically allocate a lawyer or another legally qualified person to the guardian of unaccompanied minors.
Guardians would be relieved significantly by the possibility of professional support for the guardian respectively representative of minors in asylum and residence law questions, the support during the hearing, the lodging of an appeal and other steps. In spite of their often great commitment, they often lack the legal expertise to represent unaccompanied minors proficiently during complex asylum and residence procedures. This includes questions such as:
• Should an asylum application be lodged?
• Is a family reunification pursuant to the Dublin Convention possible?
• Were child-specific aspects respected appropriately during the asylum procedure?
• Should an appeal be lodged?
This would improve the quality of asylum procedures for unaccompanied minors. The legal support for a guardian should be only be denied if it can be proven that the guardian has the required expertise to independently act as representative during the asylum procedure.
4. Child-oriented asylum procedures
It is of special importance for children that asylum procedures are carried out quickly and their needs for protection are examined comprehensively and thoroughly in order to enable them to start afresh in Germany with the perspective of permanent residence as soon as possible. It is to be welcomed that the Federal Office for Migration and Refugees currently increases its personnel. However, it is desirable that procedures which affect children be ordered to be given priority. Also, decision-makers must be better qualified in conducting age-appropriate hearings and competently identifying child-specific rights to international protection.
The signing associations and organisations demand, in case of children fleeing with their parents, to take greater account of the fact that child-specific reasons to flee could play a role, for example forced recruitment as child soldiers or female genital mutilation.
A fair and efficient procedure also involves competent and free prior legal advice, which we already pointed out under the Section 'Modernisation of guardianship'. Children have to know what to expect during an asylum procedure. It is the responsibility of all parties to inform children age-appropriately about the asylum procedure.
5. Standards for age determination procedures
Age determination procedures play an increasing role in Germany. The procedure has immense importance for the affected persons as a wrong decision would unjustly rule out the application of children's rights.
At the beginning of a hearing and of the age determination process, the question as to whether or not the affected person is a minor, is undecided. The youth welfare office should always be informed and involved and the court should appoint a guardian. An age determination procedure should in any case be started solely if there are reasonable doubts about the age. The competent youth welfare office should obtain an independent expert's report on this and always assume minority if in doubt. The affected persons should previously be informed about the procedure with the help of a language mediator. The language mediator should be present throughout the complete procedure. Proceeding and basis for decision must be documented traceably and made available to the affected persons in order to ensure transparency of the procedure. The result should be submitted in the form of an administrative ruling open to appeal to ensure judicial review.
The signing associations and organisations demand to bindingly introduce internationally recognised minimum standards for the procedure, based for example on the General Comment No. 6 of the UN Committee on the Rights of the Child.
The associations signing here are willing to collaborate in developing additional concrete standards for age determination to be able to find practical and realisable solutions with the required expertise.
6. Creating residence perspectives
An uncertain perspective of permanent residence is especially burdensome for young people. They cannot develop any future perspective and constantly dwell in existential insecurity.
It is welcomed that the Federal Government intends to improve residence perspectives for minors and adolescents by amending Section 25a of the Residence Act.
However, the signing associations and organisations demand to return to the draft according to the Bundesrat resolution of 22 March 2013 for the planned provision in order to enable all minors to benefit from this provision.
They furthermore demand to make sure for the new provision that no restrictions, such as from 'manifestly unfounded' refusals in asylum procedures, constrain the application of Section 25a Residence Act. Additionally, the discretionary powers of immigration control departments should be broadened for issuing of residence permits to children and young people, even outside the provision of Section 25a Residence Act, for the sake of children's best interests.
7. Equal access to social benefits
Art. 2 of the UN Convention on the Rights of the Child guarantees the same rights to all children in Germany. According to Art. 27, every child has the right to a standard of living adequate for the child's physical, mental, spiritual, moral and social development. Art. 24 of the UN Convention on the Rights of the Child specifies that each child has a right to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. The EU Reception Directive of 26 June 2013 grants children, being particularly vulnerable persons, the access to special health services and an adequate psychosocial consultation and support. All these requirements are best met if children have full access to social benefits and to the German health system, independent of their residency status.
Therefore the signing associations and organisations demand to grant refugee children equal access to benefits in accordance with the German Social Code (Sozialgesetzbuch).
8. Access to education
Children with refugee background are often disadvantaged in the German education system due to their not speaking German, bureaucratic obstacles, ignorance, but also the fact that teachers as well as parents are over burdenned. This often causes the real educational biography of children with uncertain perspective of permanent residence to fall behind their individual potentials and abilities.
According to article 28 of the UN Convention on the Rights of the Child and Art. 14 of the EU Reception Directive of 26 June 2013, refugee children have the right to equal access to the education system.
The signing associations and organisations demand to ensure that the affected parents and children are informed at an early stage about educational opportunities and that the children are supported at integrating into the education system as well as learning a second language.
Specialists in educational institutes and in child and youth welfare services require additional qualification, personnel and financial resources and support at the quality development of their educational facilities in order to be able to support children individually and to also include their families so that no child is left behind. Consultation and support at vocational orientation must consider the special consultation needs of young people with a refugee background.
Young people coming to Germany at the age of 15, 16, or 17 are facing particular difficulties. Many federal states assume that their compulsory school attendance is fulfilled, independent of whether or not these young people had ever the opportunity to attend school. However, many of these young people are eager to be educated and want to attend school. The federal states have developed different practises for offering them the opportunity of graduating. However, the quality of these offers varies much and partly cannot fulfil the every young person’s educational requirements. A nationwide plan does not exist.
The signing associations and organisations demand a needs analysis and professional exchange in order to improve the educational opportunities of these young people throughout Germany.
The legislative amendments by the Federal Government regarding the internationalisation of the BaföG are welcomed. We agree with the Federal Government that the promotion conditions for education and training of non-German trainees must be expanded and threatening financing gaps must be filled.
However, the signing associations and organisations requests the Federal Government to put the amendments to the Federal Education and Trainings Act (Bafög) into force the earlier than planned (not only with the beginning of the 2016 school year respectively of the 2016/2017 winter semester), or to make transitional arrangements until then.
9. Decentralised accommodation
Due to the increasing number of persons seeking asylum, children seeking asylum and their parents often live in shared accommodations for a long time. This type of accommodation involves large risks for the protection and development of children: Cramped living space and lack of privacy for children and families, noise nuisance particularly in the evening and at night due to different sleep-wake-cycles of the occupants, an increased risk of infection due to the spatial narrowness, danger of - possibly assaults by other occupants, (sometimes even sexual assaults) as well as insufficient rooms and outdoor spaces where children can relax or play safely- preferably under pedagogic care.The child care facilities are often barely sufficient, and there is scarcely any language support, consultation or interpretation services for children and young people. If the accommodation is located out of town, aspects are added such as isolation from the local population and long ways to school.
Accommodation of persons seeking asylum lies within the responsibility of the federal states. The 2014 attempt by Saxony-Anhalt to reach an agreement with regard to minimum standards for accommodation has failed because of the opposition from individual federal states during the conference of the ministers for integration. However, there is an urgent need to introduce uniform standards considering the needs of children in order to ensure that children's rights of refugee children are complied with in Germany.
For example, the EU Reception Directive of 26 June 2013 demands that minors in shared accommodations must have the opportunity of pastimes, including age-appropriate playing and recreational facilities in the accommodation centres and outdoor activities. So far, shared accommodations are not subject to the operating authorisation pursuant to Section 45 of Book VIII Social Code, which predicates the issuing of authorisation in compliance with children's best interests. On the contrary, this standard is even cancelled explicitly for initial reception centres and shared accommodations.
To protect children's best interests, the signing associations and organisations demand operating authorisations for accommodations that host refugee children, as well as regular inspections. This would also be a mandatory implementation of the requirements of the EU Reception Directive.
The signing associations and organisations furthermore demand to amend Section 53 Asylum Procedure Act in a way that exempts families with children from the obligation to live in shared accommodations. Accordingly, these families should be given to housing, and family and social counselling should be expanded to ensure that these families receive support. This facilitates the integration of the children.
The signing associations and organisations furthermore demand to create participation opportunities for children and young people within child and youth welfare services and in the shared accommodations, so that their needs, problems and proposals are considered. It is important here to prioritise the independent action of children and to strengthen their potentials.
It is welcomed that the limiting movement (so-called mandatory residence) of asylum seekers and tolerated persons has been relaxed at the beginning of 2015. This was an important step towards putting an end to restrictions of children (e.g. difficult participation in trips, football tournaments or visits to relatives).
10. Right to family cohabitation
It is often a fundamental need of children and their mothers and fathers to live together. According to Art. 9 and 10 of the UN Convention on the Rights of the Child, children have the right of access to their mothers and fathers, as well as to family reunification. Integration is often unsuccessful in the case of separated families.
It is welcomed that the current draft of the residency laws ('Gesetz zur Neubestimmung des Bleiberechts und der Aufenthaltsbeendigung') facilitates the family reunification with subsidiary protected persons and persons who came to Germany through resettlement procedure and with this, the unification of children with their parents and parents to their children.
However, there remain problems with regard to family reunifications:
There are still legal obstacles for family reunifications of parents and children with certain residence permits for humanitarian reasons, even if it is expected that residence will be permanent. In the present legal situation, a family reunification is generally excluded for some residence permits, so that there is no possibility to reunite parents with their children, even in cases of hardship. For instance, if parents are separated from their small child on the run outside the scope of the Dublin Convention, family reunification during the pending asylum procedure in legally excluded in Germany without exception.
As well the legal hurdles, there are various practical barriers to the access to the visa procedure due to its current design, for example for minor children abroad without identity papers or for parents who want to travel to their child in Germany and cannot afford the travel expenses.
Furthermore, the long procedures subject parents and children to massive stress. They can lead to an alienation of parents and children, in particular if children live in a precarious situation abroad and their parents cannot explain why the procedure lasts so long. In individual cases where the children's best interests are threatened, there are no mechanisms to accelerate the procedure. In the end, the long procedures cause a delay of months or even years of the family reunification, which can have a negative effect on integration of the affected persons.
Family reunion must be revised taking consideration of the children's best interests. The focus must lie on giving the opportunity of living together as a family: The broadened concept of family, used for example in the Dublin III Convention, enables an adjustment to the real files of families on the run.
The signing associations and organisations demand to reconcile the provisions on family reunification with the needs of families, and to explicitly include the children's best interests into the respective provisions of the Residence Act and the implementing rules.
11. Welcoming culture for children and young people
As incorporated in the coalition agreement, also the signing associations and organisations want to reinforce the welcoming culture and culture of recognition in order to increase social cohesion. The plans developed so far have mainly focussed on adults. Welcoming culture and culture of recognition with regard to refugee children means appreciation of variety, of resources and potentials in the fields of culture, language, and qualification in and out of school, that a foreign child has to offer. It is also necessary to show respect for the efforts that these children make to adjust. If a child makes an effort to integrate and adjust to German society, the parents often follow suit.
Many municipalities try to improve the welcoming culture in their offices and institutions and promote their inter-cultural opening up. It is welcomed that the Federal Government wants to strengthen their support at this. Of course, the welcoming culture and culture of recognition plays an important role for children. Here people often make large efforts to make the fresh start easier for children.
Despite numerous positive approaches, we must not ignore that refugee children in Germany are to some extent confronted with social exclusion and even racial discrimination, in extreme cases also violent assault. We also should not forget that the current legal discrimination of children with an uncertain perspective of permanent residence also plays a key role for the question whether or not a child feels welcomed and recognised in Germany. For example, a child may be stigmatised by the fact that it lives in a shared accommodation and is discriminated with regard to access to social benefits. To be separated from their family can emotionally burden children so much that they cannot feel at home before their family is successfully reunited. The same applies in the absence of residence perspective.
Reinforcing the welcoming culture and culture of recognition towards children and young people is a big challenge and it must be met by all levels of society. The whole society must stand up against exclusion and discrimination in order to achieve equal participation.
For the sake of a living welcoming culture, the signing associations and organisations demand that the protection, provision and participation rights of the UN Convention on the Rights of the Child are implemented for all refugee children:
- It must be verified whether the existing asylum and residence law provisions are opposed to a welcoming culture and culture of recognition and appreciation, they must be adjusted if necessary.
- Discriminating procedures towards children and families with refugee background must be recorded and prosecuted systematically.
- The situation of refugee children and their families must be publicly represented in a dignified and supportive manner.
- There must be sufficient resources for the accommodation of persons seeking asylum and tolerated persons in order to consider both quantitative and qualitative aspects of successful social inclusion.
- A complaint system available for all children and young people should be installed on municipal, state, and national level, and it should be provided resources and a clear mandate.
Participation and the assumption of responsibility in day-care centres, schools, in child and youth welfare services, in accommodations and in the municipalities by children and young people with a refugee background should be the aim, so that children can be heard in all matters which affects their lives.
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