EU Training for guardians of unaccompanied children

Age assessment is a formal process by which authorities seek to establish the age, or range of age, of a person or determine whether an individual is an adult or a child.^[1]

The age of a person may be unclear where a child has not been registered at birth, has lost their identity documents due to migration or flight, or is for other reasons not in a position to provide documentary evidence of their age. In these cases, age assessment procedures might be initiated to determine if a person is an adult or a child and, in consequence, to decide about specific entitlements and rights of the person, in accordance with the person’s age.

The age of majority is the age at which a child becomes an adult and acquires full legal capacity. Having reached the age of majority means that a person can engage in legal activities and is liable for contractual obligations.

For further information, see the European Union Agency for Fundamental Rights’ website on the age of majority.

A request made by a third-country national or a stateless person for protection from a EU Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of the Qualification Directive 2011/95/EU, that can be applied for separately.

Qualification Directive (2011/95/EU), Article 2.h 

Asylum-seekers are persons who “request international protection on the basis that they cannot return or be returned to their country of origin because they have a well-founded fear of persecution or are at risk of being ill-treated or being subjected to other serious harm (…).”[1] 

Under EU law, asylum seekers are defined as “applicants” for international protection, whereas applicant means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken.

Qualification Directive (2011/95/EU), Article 2 (i)

The best interests of the child (UNCRC Article 3) shall be a primary consideration in all decisions and actions that concern the child. Understanding the best interests of the child requires decision-makers to assess the needs of the child in a comprehensive way and to take those needs into account and assign due weight to each of them when making decisions in relation to the child. Promoting the best interests of the child requires due attention to other general principles under the Convention:  the right to non-discrimination (Art. 2), the right to live, survival and development of the Child (Art. 6), and the right to be heard (Art. 12).

The Committee on the Rights of the Child explains the best interests principle as a three-fold concept: a substantive right; a fundamental, interpretive legal principle; and a rule of procedure.

As a substantive right, Article 3.1 is considered directly applicable and can be invoked before a court. Each child has the right to have their  best interests assessed and taken as a primary consideration when different interests are being considered to reach a decision.

As a fundamental, interpretive legal principle, the best interests principle offers guidance for the application of laws: when there is room for interpretation and discretion in applying a specific law, the interpretation which most effectively serves the best interests of the child shall be applied.

Under the UN Convention on the Rights of the Child, a child is any human being below the age of 18 years.

(UNCRC, Article 1)

Children are also sometimes referred to as adolescents or minors. The term minor is mostly used in civil or criminal codes of EU Member States and in some EU Directives and refers to children below 18 years of age. The term has been criticised since being a ‘minor’ could be understood to be connected with a lower status and a reduced set of human rights compared to adults. The term adolescent refers to the time when a child develops into an adult and does therefore not comprise young children. In General Comment No. 20 on the implementation of the rights of the child during adolescence, the Committee on the Rights of the Child focuses on children aged between 10 and 18 years old without defining the term ‘adolescent’.^[1] The EU Trainers Manual for guardians of unaccompanied children uses the term ‘child’ consistently to refer to all children under 18 years of age, including young children and adolescents. This terminology reflects the rights-based approach of the training programme, in accordance with the UN Convention on the Rights of the Child.

Child trafficking refers to the recruitment, transportation, transfer, harbouring or reception of a child, including the exchange or transfer of control over those persons, for the purpose of exploitation. Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs. The consent of a victim of trafficking in human beings to the exploitation, whether intended or actual, shall be irrelevant (…).

Anti-trafficking Directive 2011/36/EU, Article 2.

Country of origin means the country or countries of nationality or, for stateless persons, of former habitual residence.

Qualification Directive (2011/95/EU), Article 2.n

A durable solution is understood as “a sustainable solution that ensures that the unaccompanied or separated child is able to develop into adulthood, in an environment which will meet his or her needs and fulfil his or her rights as defined by the CRC and will not put the child at risk of persecution or serious harm. Because the durable solution will have fundamental long-term consequences for the unaccompanied or separated child, it will be subject to a best interests determination. A durable solution also ultimately allows the child to acquire, or to re-acquire, the full protection of a state.”^[1]

A durable solution is considered to comprise three different options:

• the child’s return and reintegration in the country of origin;
• the child’s integration in the country of arrival, as a recognised refugee, by granting international protection or other legal residence status; or
• resettlement to a third country.^[2]

The EU asylum acquis refers to the EU law that regulates the right to international protection and all relevant procedures. It consists of the following set of EU legal instruments: Reception Conditions Directive recast, Asylum Procedures Directive recast, Qualification Directive recast, Temporary Protection Directive, Dublin Regulation recast, and Eurodac Regulation recast.