• 1 This region is commonly referred to as MENA – Middle East and North Africa.
• 2 International Finance Corporation (2011) Education for Employment: Realizing Arab Youth Potential, (...)
• 3 The terms child, adolescent, youth and young person overlap but differ. Only the first is defined i (...)
• 4 Pianigiani Gaia (2011) 25 Migrants Found Dead in Boat Near Italy Coast, New York Times, Aug. 1.
• 5 Stevis Matina and Ball Deborah (2013) Behind Lampedusa Shipwreck: A Journey of Perils and Profits. (...)

1The first four months of 2011 will go down in history as “the Arab Spring”, a moment when the unmet aspirations of the next generation hit global headlines. Alongside the inspiring images of young people taking to the streets to overthrow entrenched dictators and demand their freedom in Tunis, Cairo, Benghazi, Tripoli, Sana’a and Homs1 appeared reports noting the region’s unique demographic gift (60% of its population is under thirty) and simultaneous demographic risk (25% of under-thirty-five-year-olds are unemployed)2. Complementing both were disturbing news stories of children and adolescents3 squeezed with adults into precarious boats fleeing violence, chaos and unemployment at home to search for a future across the sea. Young people were and are on the move, taking their life into their own hands, at whatever cost. The following vignette is typical of many: on August 1, 2011, “[t]he Italian Coast Guard found the bodies of twenty-five young men in the hold of a boat crowded with migrants that was intercepted… en route from Libya”. Among the survivors were twenty-one children4. Migrant tragedies, though rampant in the spring of 2011, persist: most notably, on Friday, October 3, 2013, a flimsy overcrowded boat venturing to Italy’s Lampedusa capsized. The shipwreck claimed at least 367 lives, including children5. The Arab exodus illustrates the reality of youthful mixed migration across the Mediterranean Sea today, what some experts refer to as a “asylum-migration nexus”, or a blurring of legal categories within contemporary migration (Betts, 2006: 652-676; UNHCR, 10-Point Plan). This varied and multifaceted flow includes asylum seekers, exploited unaccompanied children, job seekers, education or opportunity seekers, and adolescents seeking family reunion with previously migrated parents; all of them, in one way or another, young people on the move for a better life. The exodus also shone a public spotlight on a phenomenon recognized by experts for some years – the growing presence of children and adolescents within contemporary migration.

• 6 According to the Parliamentary Assembly of the Council of Europe (PACE), 2011 was “the deadliest ye (...)
• 7 PICUM Bulletin, July 4, 2011.
• 8 Amnesty International (2011) Italy: Amnesty International findings and recommendations to the Itali (...)

2For many involved in the Arab exodus, their courageous journey ended badly6. Sympathy with liberation movements and concern with youth unemployment abroad do not translate into a hero’s welcome for brave young migrants. Disturbing stories abound. On June 22, 2011, an Egyptian adolescent drowned at sea trying to swim to the Sicilian shore as the boat’s propeller hit him; on the same day, the humanitarian organization Terre des Hommes reported that 260 migrant children had been detained for over a month on the Southern Italian island of Lampedusa at a former NATO base with a maximum capacity of 1807. The conditions at this base turned child detention center had caused concern for some time. A few months before the Terre des Hommes report was issued, during a visit to the same base, Amnesty International complained of inadequate child supervision, and received reports of bullying, severe anxiety and other indications of distress from the detained minors8. Children fleeing conflict and destitution in North Africa and hoping for a better life had ended up in painful detention in Europe.

• 9 Save the Children (2009) General Recommendations for EU Action in relation to Unaccompanied and Sep (...)
• 10 European Commission (2010) Action Plan 2010-2014, Brussels, p. 2.
• 11 Ibid.
• 12 UNICEF (2010) Children, Adolescents and Migration. Filling the Evidence Gap, June, pp. 3-4.

3The growing presence of young migrants in these dramatic journeys and their traumatic migration experiences are symptomatic of a new demographic phenomenon. As the European Commission noted in its 2010 Action Plan on Unaccompanied Minors, “The challenge of unaccompanied minors is growing: a considerable number of third-country nationals or stateless persons below the age of eighteen arrive on EU territory unaccompanied by a responsible adult, or are left unaccompanied after they have entered EU territory”. Over 7,000 unaccompanied children arrived in Italy in the first quarter of 20099. Although some Member States experience this far more than others, all are affected10. The same document noted a 40.6% increase in the number of minor asylum applications lodged in the twenty-two EU Member States of the European Migration Network in 2008, compared to the previous year11. This phenomenon does not only affect Europe. 13% of today’s global mixed migration flow is made up of children, adolescents and youth under twenty12, many of whom travel alone to advance their interests despite sizeable physical dangers, institutional challenges and ambivalent political response (Yaqub, 2009). A global commitment to protect children from adversity is subordinated, in the policy limelight, to an international determination to punish and deter irregular migration. Young migrants are high priorities for both.

• 13 Save the Children (2009) General Recommendations for EU Action in relation to Unaccompanied and Sep (...)
• 14 Ibid.

4Whether they are asylum seekers, independent migrants, trafficked youth or children smuggled for family reunion purposes, or whether their status is unclear (between categories or within several), all young migrants need protection and assistance of one sort or another – safe accommodation, and protection from exploitation, from the risks of criminalization, from deprivation of food and medical care at a minimum. As Save the Children Brussels noted “The rights and needs of these children to assistance arise often before the appropriate protection route or long term solution options are known”13. Devising mechanisms to satisfactorily engage this need for a “horizontal” approach14 to adolescent migrant protection independent of the particular categorical silo which encompasses the child’s legal status is an unfinished task. It entails returning to some very basic, unchallenged human rights principles: non discrimination, a primary focus on best interest, the right to life and to respect for one’s private life, and the right to have one’s voice heard.

• 15 Rawat Dinesh Singh (2011) UN General Assembly Debates International Migration and Development, ABC (...)
• 16 Ibid.
• 17 There are 11.2 million undocumented migrants living in the United States and in 2011, the US govern (...)
• 18 Statement for the Record, The Honorable Michael Chertoff, Secretary, United States Department of Ho (...)
• 19 UN General Assembly (2006) International Migration and Development. Report of the Secretary-General(...)

7At the same time as the North African migrant adolescents headed for Lampedusa were leaving home to seek opportunities across the Mediterranean, world leaders were gathering to discuss global migration. On May 19, 2011, the United Nations General Assembly held a discussion on international migration and development for the very first time. Secretary General Ban Ki-Moon opened the proceedings by calling on Member States to “harness the unstoppable force of migration for the greater good”15. He cited statistics showing “that the economic contribution of migrant workers far outweighs any costs”16. While the setting for the Secretary General’s comments was new, his two key points were not. Despite enormous investments in policing, intelligence and legal provisions over many decades, there is resigned acknowledgement, across the political spectrum that effective border control continues to elude target destination States17. As the former head of the US Department of Homeland Security under the Bush Administration, Michael Chertoff, conceded: “Enforcement alone is not enough to address our immigration challenges… [As long as the] opportunity for higher wages and a better life draws people across the border illegally or encourages them to remain here illegally [preventing migration will be difficult]”18. This is not surprising as robust engagement with policies to address rights needs in the countries of origin of young migrants, an essential complementary development, has been lacking. And, grudgingly or defensively, the same States have for some time had to admit, as Secretary General Ban Ki-Moon noted, that migrant workers, especially young, unattached and healthy ones, are likelier to add far more to their economies than they cost19.

• 20 Human Rights Watch (2009) Pushed Back, Pushed Around: Italy’s Forced Return of Boat Migrants and As (...)

8The Secretary General’s call for positive approaches to migration is welcome. States have generally failed to demonstrate their intention or ability to harness the force of migration for the greater good. EU Member States have even turned their back on countries with which they have had long standing historical links and instituted blanket return policies: already in 2009 Italy adopted a policy of returning migrants within international waters to Libya, a former colony and close trading partner, without any prior evaluation of their protection needs20.

• 21 Center for Public Policy Priorities (2008) A Child Alone and Without Papers – A report on the retur (...)
• 22 In 2010, there were an estimated 7.5 million child migrants in Europe, many from Eastern Europe and (...)

9Nowhere is the impact of this failure to harness migration flows for positive outcomes clearer than in the case of young migrants, adolescents on the move to secure a better future for themselves and their families. With ambition, energy and years ahead of them, this cohort has an untapped capacity for contributing particularly to rapidly ageing societies. The Middle East and North Africa (MENA) region does not have a monopoly on such migrations. No major continent is unaffected. Tens of thousands of child migrants have crossed the border between Mexico and the United States for decades fleeing conflict, abuse, violence and poverty in search of better opportunities. Though an estimated 43,000 are removed back home each year21, it is probable that a far larger number remain. Europe has also witnessed a huge movement of child migrants travelling from third countries into the European Union22; and in Africa, Latin America and Australia too many thousands of adolescents are on the move each year. As a matter of international and domestic law, but also of social justice and political rationality, this population of young people including those who are unaccompanied are entitled to a much more vigorous realization of what Hannah Arendt called the ‘right to have rights’.

• 23 UN General Assembly (1966) International Covenant on Civil and Political Rights (ICCPR), December 1 (...)
• 24 UN General Assembly (1966) International Covenant on Economic, Social and Cultural Rights (ICESCR), (...)
• 25 These specific instruments include international human rights treaties such as the 1989 Convention (...)

11The international community acknowledged Arendt’s insight about the perils of this situation by enshrining a comprehensive body of principles – human rights norms – designed to reduce individuals’ dependence on “their own government” for protection of their basic rights. Migrant adolescents, like everyone else, are covered by these generic principles first articulated in the 1948 Universal Declaration of Human Rights and subsequently consolidated into binding international treaties that include both civil and political rights23 and economic, social and cultural rights24. They are also the beneficiaries of specific measures designed to protect them in light of their particular vulnerabilities25.

• 26 Women’s Refugee Commission (2009) Halfway Home: Unaccompanied Children in Immigration Custody, New (...)

15Irregular migration status, especially over long periods of time, brings with it a serious risk of rightlessness for children and adolescents, despite their entitlement to quite extensive human rights protections by virtue of their status as minors codified in both international and domestic law. A critical problem is that adequate mechanisms for the delivery of supervision, accountability and the tools (legal and social) to insist on appropriate treatment, even for the most basic human needs, do not exist. The Women’s Refugee Commission report on migrant children in U.S. detention illustrates a point that applies much more broadly: “Nutrition provided to children during their time in border patrol stations is not appropriate for children’s physical condition or cultural norms… One seventeen-year-old girl reported being held in a Border Patrol station for an entire day with no food. Another child reported being held for an entire day with no water. A seventeen-year-old boy said he was held for three days and only received juice and one apple”26. This rightlessness reflects profound protection lacunae and a continuing social indifference to serious deficits in the material and psychological wellbeing of young migrants.

• 27 Human Rights Watch (HRW) (2009) Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by (...)

16Further, the tenuous status of these children’s right to have rights is stark, with extreme situations catapulting this population beyond the scope of domestic accountability or international oversight of monitoring bodies. Living in zones of exemption, children in detention often experience indeterminacy and isolation (Bhabha, 2009: 430), as well as arbitrary processes that are expressive of Giorgio Agamben’s provocative analogy (Bhabha, 2009: 431). Comparing the treatment of refugees in camps to the paradoxical experiment of the concentration camp, Agamben conceives both junctures as “structures in which the state of exception -the possibility of deciding on which founds sovereign power- is realized normally” (Agamben, 1998: 169-170). Lacking fundamental social protections and entitlements – whether seeking asylum in a U.S. “secure facility” (Bhabha and Schmidt, 2006: 88) or attempting escape from child immigration detention in Spain27 – children on the move are often subject to arbitrary rules, punishment, and unprecedented violence.

• 28 Many nouns and adjectives are used to describe individuals who lack a legal migration status: alien(...)
• 29 In some US states, notably Illinois and California, legislation has been passed allowing undocument (...)
• 30 See Department of Homeland Security, Press Release (2012) Secretary Napolitano Announces Deferred A (...)
• 31 H.R. 1751, 111^th Cong. § 4(a) (2009): “special rule for certain long-term residents who entered the (...)

18Many thousands of adolescents have been brought up as irregular migrants in States they consider home. The experience of what some have aptly termed “legal liminality” (Menjivar, 2006: 999-1037) can be all pervasive. As an undocumented young Brazilian reflecting on his years living in the United States put it: “You’re a nobody in society” (Cebulko, 2014: 11). A similar sentiment was expressed by a seventeen-year-old Afghan boy living in England: “Only when I have documents can I say that I will be complete” (Sigona and Hughes, 2012: 26). Like him there are approximately 1.1 million unauthorized28 minors currently living in the United States (Passel and Taylor, 2010: 1). Many have lived for years with the daily threat of deportation (Kanstroom, 2010)29, and all of them experience insecurity vis-à-vis their future. For some, a radical improvement in status may be forthcoming thanks to the courageous, tireless and astute advocacy of young undocumented people themselves – the so-called DREAMers – and the centrality of the Hispanic vote in the forthcoming presidential elections. On June 15, 2012, Janet Napolitano, the Secretary for Homeland Security, announced that, henceforth, undocumented migrants brought to the United States before the age of sixteen, with at least five years continuous residence in the United States prior to issuance of her memo, no significant criminal convictions and good school attendance and graduation records, would be protected from deportation and would become eligible to apply for renewable two-year visas provided they were under thirty30. For many so-called DREAMers, young people covered by the draft DREAM Act31, this change in policy presents an exceedingly welcome and long awaited concession. But for those with criminal convictions, or lack of school attendance records or other disqualifying factors, the problems and insecurity of irregular migration status will continue.

• 32 France Terre d’Asile (2011) Mineurs isolés étrangers: le devoir impérieux de protéger, 26 juillet.
• 33 PICUM Quarterly Newsletter, Aug.-Nov. 2011, 17.
• 34 Rank Martin (2011) Schulen müssen nicht mehr petzen, TAZ, July 8, cited in PICUM Bulletin, Aug. 29, (...)

22The contradiction between international constitutional obligations to protect vulnerable children (described in the following section) and domestic pressures to disqualify all undocumented populations from access to state services manifests itself in different ways across the European continent. In France, the central government has previously refused to provide resources to local councils charged with implementing child protection services for unaccompanied migrant children, forcing affected municipalities to initiate legal proceedings to recover the costs they have incurred in fulfilling their statutory responsibilities32. While a recent memorandum from the Ministry of Justice has set up a common procedure wherein the central State finances the first five days of reception – considered as “evaluation process” – a number of Departments still refuse care to newly arrived unaccompanied children. In Germany, the opposite process has taken place: although all children, including undocumented children, have a constitutionally guaranteed right to education, this right has, until very recently33 been nullified by public officials’ duty to report the presence of all undocumented individuals (including children) to the immigration authorities34.

• 35 PICUM Bulletin, Sep. 12, 2011.

23In the Netherlands, challenges to government child protection violations have been necessary: state officials refusing child support to undocumented parents only reversed their decision when an appeals Tribunal ruled that this constituted a violation of the local authority’s duty of care towards the children35. UNICEF investigated the circumstances of unaccompanied migrant adolescents in the United Kingdom and concluded that thousands lived outside any system of care or protection: the report concluded that “the numbers of unaccompanied or separated migrant children who are not known to the authorities could be in the thousands…, likely…more numerous than those… known to the authorities and… seeking asylum”. The report quotes an NGO worker concerned about a case that illustrates this point: “We had a child who ended up becoming completely destitute at one of our projects. He had been living with a guy who he said was his Uncle, who had then gone off to Pakistan for six months and left him in the house on his own. He had no food, no money, he didn’t even have a coat, actually, and it was the middle of winter” (Brownlees and Finch, 2010: 23).

• 36 Ibid., 7.
• 37 A dramatic case in point is the situation of children of Serbian asylum seekers in the EU, many of (...)

24By default or design, the European Union, the region with the most advanced human rights enforcement mechanisms to date, is failing to consistently protect the basic entitlements of a significant section of children growing up within its jurisdiction simply because they are considered outsiders, children without a state to call their own. It is not just migrant adolescents from outside the European Union who experience pervasive rightlessness. Thousands of migrant Roma adolescents living and working on the streets of Europe’s cities do not “belong” within the societies they live in either. Many of these young people qualify for EU citizenship (Cahn and Guild, 2010) and yet documentary and other obstacles prevent them from proving this,36 or qualifying for basic services such as school and health care. So they are in no better position vis-à-vis state protection than undocumented noncitizen children. Many live confined to segregated “nomad camps”37; often these adolescents lack an effective legal identity because of birth registration or other bureaucratic failures. These young people therefore never make it to secondary school or to the formal employment market.

• 38 See UDHR, Arts. 12 and 16; CRC, Arts. 5, 9, 10, 16, 22 and 37; European Convention on Human Rights, (...)
• 39 See also CRC Committee (2006) General Comment No. 7: Implementing Child Rights in Early Childhood, (...)
• 40 As the NEF Action for Children points out, economic pressures, poor housing and other living circum (...)

26The right to respect for private and family life, enshrined in many human rights conventions38, is critical for children. Not only is the family widely considered the fundamental unit for rearing and nurturing minors, but its absence is a known risk factor precipitating a range of vulnerabilities, from physical risks to psychological and social disadvantages (Shonkoff and Meisels, 2000; Siddiqi, Irwin et al., 2007; UNICEF, 2008)39. However, the role that families play changes as children mature: infants, toddlers and young children depend on their parents, for basic survival, for nurturing, for a sense of well-being and self confidence. For older children the balance of dependence changes, particularly in families facing severe hardships – HIV/AIDS infection, displacement by conflict, destitution through economic crisis, unemployment, illness or familial conflict. These are the sorts of families from which many independent adolescent migrants come, families fractured by crisis or calamity, by unmet need and other forms of acute distress40. What role should family unity play in the assessment of their best interests? Migrant adolescents and those representing them challenge the blanket assumption that it should always be THE principal consideration driving decision-making. They point out that on occasion families can be sources of oppression, not protection; for adolescents leaving abusive or incompetent parents, separation might enhance the chances of securing basic rights. Decision making, to be rights respecting and compliant with the obligations set out in binding international law, must be holistic and integrated. As UNICEF and the UN office of the High Commissioner for Human Rights note in their useful report on the judicial implementation of Article 3 of the CRC, the best interests principle “is not a mere resonance box of the more substantive provisions of the CRC” (UNICEF and OHCHR, 2012: 12).

• 41 See CRC, Art. 28(c); ICESCR, Art. 13(b) and (c); and UN Committee on Economic, Social and Cultural (...)
• 42 Compare Bernhardt Annette (2008) Research on Informal Work in the U.S., background memo prepared fo (...)

27A second issue which differentiates the task of assessing best interest for adolescents from the same assessment applied to younger children is the relative importance of income generating opportunities. While human rights instruments and discourse emphasize the importance of educational goals, not only the non negotiability of the right to primary education but also the centrality of secondary and tertiary education to the realization of rights41, most migrant adolescents aspire to employment opportunities as a precondition not a sequel to post primary education. The luxury of postponing income generating activities until late adolescence or beyond eludes them. Official government decision-making bodies do not take this approach. Rather adolescent employment, invariably unauthorized and typically “informal”42, is considered a factor justifying exclusion rather than an element relevant to a best interest assessment. As Touzenis has rightly noted, children’s right to participate in decision making affecting their best interests and the obligation to consider those interests in a holistic way imply that “access to work” may be a relevant and important factor: “It is especially important to keep in mind that return and family reunification/placement in an institution without access to work will not always be in the best interests of the child, even if traditional perceptions of what is ‘good’ and ‘bad’ for children may lead to this belief” (Farrugia and Touzenis, 2010: 25).

• 43 Migrant adolescents whose asylum applications are rejected but who cannot return to their home coun (...)

28These two issues are often intertwined in the life of adolescent migrants. Family pressures induce urgent income needs, whether because relatives have failed to support the adolescent or because the adolescent himself or herself is relied on to generate resources for the family. In either case, an assessment of the best interests of the minor which prioritizes, as official approaches have tended to, family unity and educational access over the considerations just outlined, may be flawed (Rozzi, forthcoming). In the words of seventeen-year-old Omar, an unaccompanied Moroccan child migrant in Italy: “Your mother doesn’t need to say: ‘Send the money’. You know from the beginning that they need it. When you call them, and they tell you about their troubles, the loans, the lack of this and that… you know perfectly well what you have to do…” (Vacchiano, 2010: 120). The child/adolescent/adult transition among migrant youth may be quite differently sequenced from the more familiar western pattern. Irregular migration status and the difficulty of accessing appropriate State services compound the “endogenous” vulnerability of migrant adolescents43.

• 44 Action for Children (2009) Backing the Future: Why Investing in Children is Good for Us All, London (...)
• 45 “ORR placed 7,211 unaccompanied alien children (UAC) in its various housing facilities during FY 20 (...)

29The complex competing desires of adolescent migrants complicate the process of protecting their right to have rights. At present there is a lacuna in addressing this issue competently. Unlike younger children, whose need for nurturing, protection, education, health care and guidance can be determined by competent (even if unfamiliar) adults, adolescents may have the maturity to contribute critical insights to the assessment of what would constitute a valid best interests decision. In this context, co-production of decisions engaging adolescent participation may be a more effective and rights enhancing technique for determining cases44 than imposition of a one dimensional “family unity” removal strategy. Acknowledgement of adolescents’ own agency and the substitution of holistic and individually tailored decision-making strategies introduce indeterminacy and complexity into decision-making. But the cost of such strategies however can be justified over time. Placing unaccompanied adolescent migrants in child care facilities alongside domestic children temporarily removes them from informal street living situations, but fails to generate viable life choices in the medium and long term. By contrast, carefully constructed individual strategies for realizing an adolescent migrant’s journey aspirations, through appropriate educational and skill development opportunities may have enduring positive consequences which translate into public sector savings within months. These strategies are not in evidence at present. Standard forms of child care institutionalization, or unacceptable forms of “secure accommodation” amounting to detention continue to be pervasive responses to the presence of independent adolescent migrants. In the United Kingdom, for example, unaccompanied or separated asylum seeking children “are now thought to represent around 10% of all children in care” (Brownlees and Finch, 2010: 8). In the United States, 7,211 migrant adolescents are placed in secure facilities annually45.

• 46 This qualification references the discussion about choice and agency among adolescents facing sever (...)

30The factors just touched on – problematic familial ties, social marginalization, financial destitution and the urgent need for income generating opportunities – precipitate a search for the self-realization that was elusive or impossible in the home context. This search frequently includes risk-taking behavior, driven by the dual imperatives, as one scholar perceptively notes, of “having fun” and “earning money” (Mai, 2010: 72). Mainstream opportunities in the formal economy, in higher education, in salubrious neighborhoods, are generally closed off by discrimination, irregular status and lack of the necessary skill sets (Suarez-Orozco et al., 2011). So the avenues available to adolescent migrants for realizing their goals are predominantly exploitative and unremunerative, antisocial, even self-harming46: begging, stealing, drug selling and prostitution. Mai provides a compelling description of this “very utopian migratory project, often based on an idealization of the West as a place where ‘everything is possible’” to the consumption of western television depicting an Eldorado of plenty and permissiveness. “The clash between the adolescent utopian fantasy and the dynamics of social exclusion faced at home and after arrival” in the destination State generates, in Mai’s view, “the search for new rituals accommodating the passage between adolescence and adulthood; …in this context, ‘making money’ emerges as a key discourse and priority for independent young migrants” (Mai, 2010: 72-73).

• 47 Gatti Fabrizio (2011) Lampedusa, la prigione dei bambini, L’Espresso, Sep. 9, cited in PICUM Quarte (...)

32Many leaders of countries experiencing high levels of irregular migration openly voice their opposition to protections for young migrants, even if they are unaccompanied and unprotected. According to a former premier of the Canary Islands, Adan Martin Menis, Moroccan migrant children arriving alone on Spanish territory should be treated like adults, detained or returned to their country of origin (Fekete, 2007: 14). In nearby Italy, the authorities have adopted the same approach: on the island of Lampedusa, a destination of much cross Mediterranean migration, rights protection for unaccompanied adolescent migrants is minimal: “Hundreds of children of all ages are detained in inadequate and overcrowded infrastructures in breach of national and international law. They lack medicines, children products and care. Some have already been victims of violence during the increasingly frequent riots between newly arrived migrants and police in the centres”47.

• 48 This is the approach recommended by UNHCR, the CRC Committee and other experts. See UNHCR (1992) Ha (...)
• 49 BBC News (2007) Asylum Seekers Policy “Unlawful”, Jan. 26.

34The practice of UK border officials towards adolescent migrants illustrates this implicit rejection of a minimum threshold of rights. This is not a marginal problem. In 2004, as many as 43% of those applying for asylum as unaccompanied or separated children had their cases “age disputed”. A failure to accord children the benefit of the doubt when their age is disputed48, pending a final determination of the issue. While forensic age evidence was being examined, they were treated as adults, detained in harsh conditions, conditions so unsuitable for minors that on January 26, 2007, British Home Secretary Jack Reid admitted publicly that the government had been operating an unlawful policy towards child asylum seekers49.

• 50 See Convention on the Rights of the Child (1989) Art. 37, Nov. 20, 1577 U.N.T.S. 3.
• 51 Children’s Commissioner for England (2009) The Arrest and Detention of Children Subject to Immigrat (...)
• 52 BBC News (2010) Migrant Children Detention to End, Government Says, May 26.
• 53 PICUM Bulletin, Feb. 2012.

35A year and a half after the British Home Secretary criticized his government’s child migrant detention practices, the Children’s Commissioner for England visited Yarl’s Wood Immigration Removal Centre, a notorious detention centre equipped with facilities to detain up to 2,000 migrant children each year prior to deportation or removal from the United Kingdom. The visit confirmed that, contrary to government policy and the requirements of the Convention on the Rights of the Child, detention was not being used as a “last resort measure” or for the “shortest length of time possible”50. Even children who required hospitalization during the period of detention had twenty-four-hour police surveillance in the hospital. The Children’s Commissioner reported that this intrusive presence had led to a suicide attempt by one teenager; in another case, he observed “four officers around the bedside of a thirteen year-old girl”51. In May 2010, the UK government announced that Yarl’s Wood would not long be used to detain children52. It eventually paid £2 million to child asylum seekers wrongly placed in detention53. However, the benefits of this decision are unclear as the UK government reduces the availability of legal aid and with it the ability of young unaccompanied to get legal advice and representation and effectively challenge incorrect age determinations. The UK is not alone in its widespread practice of disputing the age of child asylum seekers. Many other countries, including the Netherlands, Spain, the US and Australia, also regularly rely on unreliable one-dimensional physical tests to challenge young unaccompanied migrants’ claims to protection (Senovilla Hernández, 2013; SCEP, 2012).

• 54 Sylvia da Lomba, quoted in Cholewinski Ryszard (2005) Study on Obstacles to Effective Access of Irr (...)

36Some public employees working away from the border but engaged in what Kanstroom has termed “post-entry social control” (Kanstroom, 2010: 225-243) reveal similar attitudes about the needs of unprotected children. Brutality, callous disregard of basic survival needs, including refusal to grant benefits or shelter, are common occurrences. Access to social and economic rights including education and health care is also elusive, their denial part of a deterrent immigration control policy targeted at children and young people. As the Committee on the Rights of the Child noted “the threat of destitution as a deterrent against irregular migration generates acute tensions within host States between immigration laws and human rights protections”54.

• 55 European Court of Human Rights (2005) Affaire Siliadin v. France, 73316/01, Arrêt, Strasbourg, 26 J (...)

37The acute risks to which this willful official turning away, combined with the fear of detection as an irregular migrant by State officials, can give rise were noted by the European Court of Human Rights in the case of Siliadin v. France. In this case, an unaccompanied child from Togo compelled to carry out housework and child care for fifteen hours a day without holidays, the Court commented: “The applicant was entirely at [her employers’] mercy, since her papers had been confiscated; she had no freedom of movement or free time. In addition, as she had not been sent to school… The applicant could not hope that her situation would improve”55.

• 56 Save the Children, Brussels EU office, private communication on file with the author.

38Irregular migration status increases the risk of being discounted as a person and subjected to gross rights violations. These include the widespread failure to promptly appoint guardians or legal representatives for unaccompanied minors and the lack of any effective transnational cooperation between guardians that might enable effective family tracing and best interests determinations to be carried out; the absence of any effective or consistent transnational cooperation also impedes timely identification of unaccompanied child migrants, a critical first step in the protection process required of States56. Because of its complexity it is a task ill suited to rushed inquiry at the border by immigration control officials lacking specialized training. It requires a form of constructive and protective transnational collaboration which is not in evidence. Consider this case:

• 58 Ireland has faced a similar problem. Over the last seven years, 388 children placed in the care of (...)

40For migrant youth in Italy for example, between 2006 and 2010, 42% of accommodated minors have been reported to have left first reception facilities without authorization (Giovannetti, 2012: 82). The “protection” being offered does not cater to the adolescents’ needs and wishes, perhaps because it is infantilizing, non-income generating and patronizing. Some State authorities have resorted to locked shelters to prevent the escape of unauthorized young migrants. This detention is also justified by a concern to protect the minors from traffickers or other sources of exploitation. Detention for protection is a suspect approach. But those such as the Italian and Spanish authorities, who do not detain unauthorized child migrants, acknowledge that a best interest calculation might justify more stringent supervision measures as large proportions of at risk children, many suspected to have been trafficked, disappear from State provision within days of being placed58.