International conference
CHILDREN AND YOUNG PEOPLE ON THE MOVE: TOWARDS A
MORE PRECISE DEFINITION OF THEIR BEST INTERESTS
19-20 November 2015
Portorož, Slovenia
Unaccompanied minors in Slovenia:
Principle of the best interest of the child
between theory and practice
Blaž Lenarčič, Zorana Medarić, Mateja Sedmak,Tjaša Žakelj
University of Primorska, Science and Research Centre
Conference is organised in the scope of the “In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration
and Asylum Procedures (MinAs)” research project, co-funded by the PPUAM 2013 of the European Union.
Project description
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Project In Whose Best Interests? Exploring unaccompanied Minors' Rights
through the Lens of Migration and Asylum Processes
1st focus: inclusion of best interest of the child principle (BIC) in
legislation;
2nd focus: determination of best interest of the child in practice (BID).
Methods:
legislation analysis (BIC involvement);
interviews with 13 experts working with UAMs (BIC and BID)
Interviews with 18 young people with experiences of being
unaccompanied minors in Slovenia (carried by PP Slovene Philanthropy)
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
UAMs in Slovenia
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UAMs applications for international protection in 2014
Source: Ministry of the Interior (2015)
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In the period 2005-2014 the status of international
protection was granted to 36 UAMs.
BIC principle in legislation
determining the procedures concerning UAMs
Prior to the intention of application for international
protection UAMs are treated in compliance with Aliens
Act – AA.
 In AA BIC is not a general rule which guides procedures
concerning UAMs.
 Principle is mentioned only once: in second part of 82.
article:
…. The police shall issue the alien minor with a return decision
where his guardian for special case, having carefully considered
all circumstances, establishes that this is in the best interests of
the alien minor.
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In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
BIC in International Protection Act I
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From the intention to apply for international protection UAM
is treated under International Protection Act – IPA.
IPA lays down the fundamental principles, procedure of
granting and withdrawing of international protection,
duration and content of international protection as well as
the rights and obligations of applicants for international
protection and persons who were recognized international
protection.
International protection includes refugee status and
subsidiary protection status.
IPA defines Unaccompanied minor as “a third-country national
or a stateless person under 18 years of age who is in the territory
of the Republic of Slovenia without both parents or previous legal /
customary primary caregiver“.
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
BIC in International protection act II
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IPA, article 15: UAMs are vulnerable group of migrants;
law stipulates that specific situation shall be considered
when accommodating vulnerable applicants.
IPA, article 16: In the procedures, where the applicant is
an UAM, it is necessary to take into consideration the
principle of the child’s best interest.
IPA, article 96: When working with UAM with
international protection status, one shall consider the
principle of the best interest of the child.
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
Other relevant acts
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Marriage and family relations act: special case guardians
and legal representatives of UAMs need to act in accordance
to the provision of this act.
Article 5.a: in all activities and procedures affecting a child,
parents, other persons, state authorities and bearers of public
authority must act in the child’s interest.
Civil Procedure Act: Article 408 explicitly requires from
the court to protect interest of the child in legal and
parental lawsuits.
Mentioned two acts are general field act and do not apply
only to UAMs.
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
Usual steps of the procedure
concerning UAMs
Border police
control
Aliens centre
Special case
guardian
Intent to
apply for IP
Asylum home
Legal
representative
Submission of
application
Rights of
applicant
Waiting for
the decision
Positive or
negative
decision on
status
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
Critical points of the procedure for BID
1. Procedures at the border
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/…/ the border procedure is also very problematic, how they are treated at the
border, what is happening there… (NGO representative 1)
Now we usually get to the border for each individual case when we are notified
about it. Well, except in some cases when the police have doubts regarding their
age, it sometimes happens that we do not receive notification. And I also can’t
say that the police inform us about every case, I suppose they do inform us about
all cases…. (Centre for Social Work representative 2)
Actually it is very hard to say what is in the child’s best interest at any specific
moment.We are very satisfied that in border return procedures in most cases, I
will not say they are constantly present, we have social centre workers who carry
out an additional conversation with the UAM, ask them about their circumstances
and in a way determine it. In a way. (Border Police Division representative)
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
2. Aliens centre
Living in restrained area:
They do not understand that these are formal procedures, they do not
understand why they are detained now: „We haven’t done anything,
we just want a better life“. Now there are lots of Afghans and some
of them have said: „You treat us as we would be Talibs, be we run
away from them“. (Special case guardian)
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In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
/…/This guardianship is not…. It sounds nice, it is understood as
a function to go there and to be with them, to be available to
them for anything… It is more like a formal protection if I am
going to be completely sincere.To explain them their rights…
And these conversations can last up to two hours. /…/ (Special
case guardian)
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
3.The intent to apply for international protection –
Asylum home
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Is followed by the reception to the Asylum home where application for the
protection must be served as soon as possible:
The fact that the application has to be done in 24 hours seems inconvenient … In
one of my cases, a child was brought to examination directly from Postojna. And
children are tired, confused and then we interrogate them… I do not know. (Legal
representative)
I do not know if we as a state are efficient, if the UAM understands the procedure
after it is explained to him, if he fears less than before, because I do not have this
feedback. He gets there, he does not know what is happening, he is scared, does not
understand the language and so it would be necessary to work on it very hard.
(Centre for social work representative I)
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
4. Appointment of legal representative
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Prior to the application for the international protection.
Their role is to support UAM in the procedure, within issues
of education, health and financial issues.
Crucial for the formal and informal support of UAMs:
„Things are going all smoothly - for me is the best I ever
had./…/Yeah, she is the first person I look to. From time when I
came here, I turn to her like she was my mother. She is like a
mother; you know because she is doing everything like a mother, she
is really a guardian. (Interviewee 7, Ghana, 17 years old)
New system from 2014; trained legal representatives; partialy
paid.
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
Legal representatives as crucial actors in the strive for
BIC realisation
In this procedure it is absolutely in the best interest of the UAM to get
an efficient legal representative. /…/ … This (BIC) is an expert
judgement… this legal institute needs to be filled by the content …
(Centre for Social Work representative 1)
Even when you find out what would be in the best interest of a child
you can’t implement it, because the system does not allow it. I mean,
there is no system. A child-friendly system that would enable childfriendly involvement in social care, health care, schooling – does not
exist in Slovenia. /…/ (NGO representative 1)
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
5. After submission of the application
The applicant shall have the right to:
• Reside in the Republic of Slovenia;
• Follow the procedure in a language he understands;
• Obtain information;
• Basic care in the case of accommodation in the Asylum Home;
• Financial assistance in the case of private accommodation;
• Free legal aid in procedures until a decision becomes final;
• Health care;
• Schooling and education;
• Work and employment;
• Humanitarian assistance.
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
6. Waiting for the „final“ decision
 UAM is accompanied with numerous everyday issues to
be tackled with (accommodation, schooling, health,
financial aspects, friendship, missing family).
 Long decision procedures though IPA determines priority
treatment of the child’s application.
7.The status is granted
 Insecure position even if status is granted (especially in
cases of subsidiary protection and statuses based on
reason of minority of the applicant).
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
Individual with granted international protection status shall have the right to:
• Be informed on the status, rights and obligations of persons with
international protection;
• Residence in the Republic of Slovenia;
• Accommodation in the accommodation capacities of the Ministry;
• Financial assistance for private accommodation;
• Health care;
• Social care;
• Schooling and education;
• Employment and work;
• Integration assistance.
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Although rights recognised in IPA follow international directives their
realisation in practice is limited due to numerous system lacks and
constrains.
In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures
System lacks
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The overview of the situation in Slovenia shows that there is
no comprehensive and systematic approach to the
protection of UAMs.
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While the need to pursue their best interest as children and a
particularly vulnerable group is recognised in legal
documents and other guidelines, the practice shows
somewhat different picture.
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The determination of the best interest of UAMs to large extent
still depends on personal endeavours of (many) actors involved
in the processes concerning them.
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Each time it (the best interest of the child) is determined
by the person who is in charge, individually for each part
of the procedure. (Deputy Ombudsman)
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The lack of comprehensive system reflected in the views of
children – they feel their (best) interests are not heard or
considered:
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I did not understand…what the state actually does. They do
not know. They do not listen to anything we say. It seems to
me that in Slovenia they do not listen to anything. /…/ I think
it is different in other countries. (Interviewee 11)
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Main gaps identified
Short timeframe for the international
protection application submission
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The application for the international protection needs to be
submitted soon after the reception into the Asylum Home.
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We found this very problematic because it happens right away this is
few hours after the arrival into the Asylum Home. Because it is not
necessary they were at the Aliens Centre before. /…/ and the
submission of the application is of vital importance because it is the
basis for decision making regarding the status of protection. /…./
Imagine a child who might travelled for months, who is hungry, not
to mention his psychological condition, traumas and he is sent to the
room with people that he does see the first time. First person is legal
representative that tries to explain him he/she is on his part, than
there is a legal adviser, interpreter and the official person. And they
try to convince him to tell his story why he applied for the status of
international protection. And I find this system totally inadequate;
there is no time and place to prepare a child for such an important
thing as a submission of an application. (NGO representative 1)
Lack of information and little possibility for
UAMs to present their situation and views
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Process of applying for international protection is confusing for
UAMs; they do not receive enough information about
procedures, about their rights or possibilities nor information
on possible outcomes of the application to international
protections status.
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Before interview nobody explained me about nothing, than I
gave the interview and they said, ok, now you finished.
(Interviewee 15)
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They do not have the opportunity and enough time to meet
legal representative before the submission of the application
and discuss their position and options in detail.
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Consequently they cannot adequately express their views and
their stories:
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…You know, you are nervous, you are meeting them for the first
time; you don’t know what to say. It’s hard./…/ And again, you
don’t know who to trust. You don’t know who is a police officer,
or who is an immigration officer. They might just introduce
themselves as blablabla, you understand and they will be there.
So you don’t know what’s the outcome of the interview. So it’s
nervous. You are meeting them for the very first time./…/ there
was translator /.../guardian, behind my back. And that’s it.
(Interviewee 2)
Inappropriate interpreters
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Additionally, they often have inappropriate interpreters during
interviews:
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Actually no, in both, first and second interview, I did not have the
opportunity (to express myself). The first problem of interview – the
translator, the most important thing; 85 % was the problem of
interpreter. He or she could not explain the thing I needed to say.
This is a problem; everything is connected or based on her/his
translation. If he/she couldn’t translate nicely that would mean that
my sentence have no value. (Interviewee 6)
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My language is Dari, the translators was speaking Persian. PersiDari is a big difference. (Interviewee 15)
Inappropriate accommodation facilities
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UAMs are usually placed in Asylum home, which is the
accommodation facility for adults. They report about inappropriate
living conditions: inappropriate and scarce amount of food, lack of
appropriate clothes, information and autonomy:
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Well, Asylum home was more like prison, because I did not go out, if
you do go out, you have to be back at a certain time. You could not
have freedom. Also, the food and everything was very bad at this
place. (Interviewee 7)
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Accommodation itself is somewhat inappropriate because it is inside
the Asylum home. But we search for different versions outside the
home to reach best interest of the child. If you ask me, according to
the social aspect foster care families would provide accommodation
for unaccompanied minors which could be very successful. (Asylum
home representative)
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The possibilities of better accommodation options, such as
placement in Hall of residence for high school students
where UAMs attending school are placed together with
Slovenian high school students depend on individual
endeavours of guardians.
Innapropriate age assessment procedures
Not all UAMs are subjected to age assessment procedures
(only if doubt exists), but those who are can experience
humiliating and disputable procedures:
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This means a boy has to take of his clothes; the physician
compares testicles with the chain of balls. When it was
described to me, I found it terrible, humiliating and
inadmissible! (NGO representative 1)
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…who confirmed that I am 17 years old. [How was at the
doctor, how did they check you?] They performed an x ray
on both my hands and my knees. /…/I didn’t mind, they told
me that I must go to the doctor and I went. (Interviewee 8)
Lack of intercultural competences and
empathy of people involved in processes
with UAMs
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When asked I didn’t get the doctor in Asylum home. I said to
them that I couldn’t sleep. And then social worker for minors
told me ‘Oh, you are from Afghanistan, go find some drugs
and take it and you will be totally normal. You are an
addicted person’. … She insulted me by saying I am
addicted. … She apologized then and said that she made a
mistake …. (Interviewee, 6)
Length and uncertainty of procedures'
outcomes
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The period of time for UAM to receive the (final) answer
about their status is very long and it causes uncertainty about
their future.
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It is also really hard when you are getting for one year documents
only. OK, you wish, you are feeling for other to be better. And you
are managing all your life. You are coming from the time of
Asylum home, from that flashback, for one year, now you are in a
good time. You are supporting, you are planning… Suddenly, your
documents stop and you get negative. And it means, again
problems forgetting about this one year. This is really big
problem. Because I made so much plans to have a future, make a
good life. But then what happened with me. (Interviewee 6)
Length and uncertainty of procedures'
outcomes
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This period should be reduced. Instead of waiting here for
five years and don`t receive anything, it would be better to
know after six months, you know what is waiting for you
here and you can go back home or elsewhere. But here you
are waiting. They don`t treat you as normal people. I don`t
know what they think of us. This is hard. (Interviewee 4)
Length and uncertainty of procedures'
outcomes
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“Temporary” is the keyword with which we can describe the
support of Slovenian state if UAM gets the international
protection status. UAMs mainly obtain their status for a year or
two, with the fact of them being under age as the key reason for
the status granting.
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In this context, transition to 18 is also problematic. Due to delays
in procedures (even though the status of UAMs should be solved
under priority!) and because recently UAMs get the status of
subsidiarity on the basis of their age when turning of age they are
1) either not granted the status 2) cannot renew their status.
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(Former) UAM who might be living in Slovenia for years is
actually at the beginning of his/her strive for the status.
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All those boys who got of age and asked for the renewal got
negative answers. Meaning that there can be a case of a boy
who lives in Slovenia for 4, 5 years, who is perfectly
integrated if we need to mention it in through these lens and
defend him. He visits school and speaks Slovene perfectly.
He caused no troubles to Slovenia. After five years when he
wants to stay here, Ministry declares “No, we do not want
you here.” Not with these words but declares his status was
obtained on the basis of him being under age but now he is
of age. And now as 18 or 19 year old boy he should return to
Afghanistan. This is terrible for those kids. (NGO
representative 1)
Poor integration possibilities
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In Slovenia UAMs have limited educational and work possibilities
(despite the formal right to them) and there are mainly no integration
programmes nor activities for them.
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In practice there are numerous constrains regarding access to
education, such as lack of intensive learning of Slovenian language
or lack of systematic approach to education.
… Than I got there (in the school) … the first day I introduced myself in
English, because I didn’t speak Slovenian. They didn’t oblige me to
finish the course or school of Slovenian language. It was hard. Than
they told me to have 300 hour of Slovenian course but it was no good.
The professor was talking in Slovenian and I didn’t understand nothing..
Sometimes was missing and I was reading alone by myself …300 hours
is a lot, but the system was bad. I could not learn Slovenian language
….(Interviewee 17)
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Despite being an important priority, there are very limited
employment opportunities for UAMs. The most available form is
student work – if they have the status of students.
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The right to work is obtained only after 9 months in case they
haven’t received decision on their international protection status
yet. In that case they get personal work permit per 3 months and
if in these three months still haven’t received the decision, permit
is prolonged for additional 3 months. We believe this is inhuman
and unfair. If the Law stipulates that the decision should be given
within 6 months, why wait for 9 months then? /…/ If they work
they mainly work on the basis of student referral. For regular
work they have scarce options as even if they have some specific
knowledge, for instance mechanic, these are completely different
as here. (NGO representative 2)
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UAMs often express the desire to gain more independence
through work; however work opportunities are scarce and
additionally, if they do work, their state financial support is
lowered.
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It was a bad system. During the summer, while I was working,
they lowered that 260€ I received. Rather than leaving those
people who want to do something for their future, for their life.
They could help, encourage you to work. But if you work, you
just do not receive from Ministry, from Centre for Social work.
(Interviewee, 6)
Indispensable role of guardian...
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„My guardian helped me with everything. She is the best I have
ever had because she helps me. If it is good or bad. Before she
even plans, she has to decide with me If I supported the idea or
not. … She is from this country. She knows best so I can never
disagree with good things she plans with me. Things are going
all smoothly – for me is the best I ever had. … She is like a
mother to me, you know because she is doing everything like a
mother, she is really a guardian.
…and that of Slovene Philantropy
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“The Slovene Philanthropy helps me with learning. They also
took me on the trip once, twice a year. Also if I have trouble of
any kind I go at Slovene Philanthropy“
In conclusion
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UAMs have little or no control over decisions
regarding their lives.
The principle of the “best interest of the child” is
often violated.
Their basic human rights are violated on daily basis.
Procedures are not adapted to the minors.
Lack of comprehensive and systematic approach to
the protection of UAMs in Slovenia.
Slovenia has no proper experiences how to cope
with the problem and no real interest to face this
issue properly.