Challenging concepts of the ‘child’ in asylum and immigration law: the example of the EU

Abstract

This paper challenges dominant concepts of the child in migration law, using recent legislative activity at European Union (EU) level as a case study. The Treaty of Amsterdam 1997 (which entered into force 1999) gave the EU competence to pass binding legislation on asylum and immigration. What has followed is a body of law that governs a number of types of migration and stages of the migration process, the overwhelming majority of which makes specific provision for children. This paper demonstrates that the EU's legislative activity in this area has had, and will continue to have, an appreciable impact on the legal regime governing child migrants. Furthermore, it questions the characterization of the child migrant found in this legislation, and its subsequent interpretation by the European Court of Justice. The validity of an emerging categorization of children according to age thresholds, their reasons for leaving their country of origin, their stage in the migration process and their nationality is examined. In particular, it is argued that the EU risks undermining its own commitment to children's rights by basing its laws on assumptions about childhood and the migration process that lack empirical grounding. As the EU looks towards an increasingly explicit and extensive agenda in relation to young immigrants and asylum-seekers, it is argued that more robust methods of incorporating children's rights into laws and policies must be sought.

Keywords:

• asylum and immigration
• children
• EU law
• legal identities

Acknowledgements

I am very grateful to Samantha Currie and Helen Stalford for their invaluable comments on previous drafts of this paper; and to the participants at the conference on Children and Migration: Identities, Mobilities and Belongings, University College Cork, April 2007 for their useful discussions and feedback. Naturally, any errors or omissions remain my own.

Notes

1. See, in particular, Articles 78 and 79 TFEU. Before the renaming and renumbering of the Treaties brought about by the entry into force on 1 December 2009 of the Treaty of Lisbon 2007, these provisions were found in Title IV, Part Three Treaty establishing the European Community (EC Treaty). It should be noted that the UK and Ireland have reserved the right to opt in or out of this legislation and Denmark has totally opted out of this area of EU cooperation.

2. Presidency Conclusions of the Tampere European Council of 15 and 16 October 1999, the Hague Programme of November 2004 and, most recently, the Stockholm Programme of November 2009. See further: Green Paper on the Future Common European Asylum System (COM(2007) 301 final).

3. Legal provisions in relation to EU citizens are now largely found in Directive 2004/38 on the free movement of Union citizens and their family members [2004] OJ L158/77. For an up to date analysis of the rights and entitlements of migrant EU citizens, see Currie 2009.

4. This is true of Directives which constitute the vast majority of legislation on asylum and immigration, the notable exception is the Dublin II Regulation (Council Regulation (EC) No. 343/2003, OJ L 50/1, 25.2.2003), the provisions of which constitute part of national law immediately upon entering into effect (Article 288 TFEU).

5. It should be noted that a number of amendments to this provision are currently under discussion: Proposal for a Directive of the European Parliament and of the Council laying down minimum standards for the reception of asylum seekers COM(2008) 815.

6. It should be noted that amendments have been proposed to this Regulation: Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person COM(2008) 820 final. Initial reactions to the proposed changes from Save the Children have been positive: comments available from: http://www.savethechildren.net/alliance/europegroup/europubs/SCComments_ProposedRevisionoftheDublinIIRegulation.pdf [Accessed 9 June 2009].

7. The proposal to amend provisions on asylum reception conditions (note 5) contains a proposal to prohibit the detention of minors, however this proposal is yet to be accepted by the Council, a body that has historically defeated a number of pro-children's rights measures in EU asylum legislation.