'Child-proofing' EU law and policy: interrogating the law-making processes behind European asylum and immigration provision

Abstract

The EU is pursuing an increasingly explicit agenda in relation to young immigrants and asylum-seekers, leading the supra-national legislature to grapple with the question of how to ensure that children's rights are upheld through this body of law. The tool of mainstreaming, which ensures that a particular concern is promoted through its incorporation into the entire law-making process, has emerged as a key strategy in this regard. This article explores the use of mainstreaming within the specific context of children's rights and uses its implementation in the specific context of the European Union's (EU's) asylum and immigration laws as a case-study to assess both its successes and its shortcomings. Using similar mainstreaming activities in the gender equality arena by way of illustration, the analysis questions, in particular, the capacity of mainstreaming: to accommodate the heterogeneity of child migrants as a group; to ensure appropriate representation and coordination in relation to children's rights at institutional level; and to deliver an adequate knowledge base to underpin decision making in the legislative process in relation to young immigrants and asylumseekers. The discussion concludes by pointing to some of the current deficiencies of children's rights mainstreaming, and speculating on its capacity to successfully promote the needs of young people in EU laws and policies in the future.

Knowledge of the Unknown Child: A Systematic Review of the Elements of the Best Interests of the Child Assessment for Recently Arrived Refugee Children

“…All elements described in this paper have to be taken into account when taking such a decision. Migration policy based on children’s rights may require alternative answers when children’s rights are at stake (Bhabha 2014 ; Drywood 2011 ; Evenhuis 2013 ; McAdam 2006 ).…”

Thirty Years of Research on Children’s Rights in the Context of Migration

“…Much of the literature reviewed focused on best interests and children's experience of the asylum process, for example in Australia (Crock, 2008;Crock and Bhabha, 2006), Ireland, England and the Netherlands (Arnold, Goeman and Fournier, 2014), Sweden (Lundberg, 2011) and the UK (Bolton, 2012). The best interests principle has been mainstreamed into EU policies (Drywood, 2011) and into EU law, especially in Article 24(2) of the Charter of Fundamental Rights13 and in the regulations and directives which form the Common European Asylum System (ceas),14 which aim gradually to harmonise asylum law and policy in EU member states (Smyth, 2014). However, there has not been enough guidance on the role of the principle under Article 24(2) of the Charter, especially in the context of family reunification (Klaassen and Rodrigues, 2017).…”

“…A child's right to be heard in this context struggles to find a place in adversarial immigration proceedings (Liden and Rusten, 2007;Stalford, 2018). Non-discrimination (under Article 2, crc), in the context of asylum-seeking and migrant children, has had some attention in the literature and is acknowledged as a key principle in asylum matters (Smyth, 2014: 32-33), as a normative framework for pursuing and protecting children's rights (Stalford, 2012: 50-55) and in the formulation of EU law and policy (Drywood, 2011). The lifting of the UK's reservation to the crc in 2008 levelled the playing field between citizen and non-citizen children (Bolton, 2012: 235).…”

“…This may be explained by the tendency of states increasingly to resort to immigration detention, including of families with children, on the one hand, and the largescale civil society mobilisation to end child immigration detention, on the other.12 The issue of deportation has not been extensively dealt with either (but see Smyth 2015;Langrognet, 2018). Drywood (2011) has researched the potential of "mainstreaming" children's rights in EU asylum and migration law, adequately to respect the rights of children and young people. Farmer (2018: 174) has argued that the advancement of and focus on the child protection framework at the expense of the overall migrant rights framework has led to an unbalanced system which cannot completely fulfil children's needs.…”

Children’s rights-based childhood policy: a six-P framework

“…However, whilst the importance of mainstreaming in the context of children and young people is now commonly highlighted, there is little guidance on what this looks like in practice. 30 As noted, policy in some countries is formally scrutinised with respect to human rights legislation generally. For example, in Northern Ireland policy is scrutinised against the Human Rights Act and equality obligations emanating from Section 75 of the 1998 Northern Ireland Act, of which 'age' is one category.…”