One in three asylum seekers in Europe is a child. Dealing with them is not easy, and we do not treat them well. Lawyers clearly play a significant role in protecting such children through enabling what rights they have.

The statistics are heart-breaking. Just as a sample, around 90,000 unaccompanied children applied for asylum in the EU in 2015, including 3,045 in the UK. Here’s another: it is conservatively estimated that at least 10,000 unaccompanied migrant children are currently missing in the EU. 10,000! Children in migration are continuously exposed to risks of violence, exploitation, sexual abuse and trafficking, going missing or becoming separated from their families.

The House of Lords European Union Select Committee published a report a year ago on the problem, proposing some solutions, including specifically for the UK government (for instance, reconsideration of legal aid cuts, and of family reunification policies). Three months ago, the Commission published priority actions to reinforce the protection of migrant children at all stages of the process, including access to legal assistance and following up the recently published EU guidelines on the promotion and protection of the rights of the child.

And now, over the last few days, almost simultaneously with the European Commission announcing that it is improving the interoperability of its information systems for security and border management, the EU’s human rights body, the Fundamental Rights Agency (FRA), has issued a report on the impact of such interoperability on migrant children.

Starting first with the background to interoperability in general, there is a number of EU-wide information systems, through which national governments share information about people crossing borders in the EU. Since they are so little known outside their specialist world, it is worth listing them. They play a vital role in migrants’ lives. There are existing ones like:

  • the Schengen Information System (SIS);
  • the Visa Information System (VIS);
  • Eurodac (the EU fingerprint database for identifying asylum seekers and irregular border-crossers); and
  • the upgraded European Criminal Records Information System for Third Country Nationals and Stateless Persons (ECRIS-TCN).

Then there are new ones being developed:

  • the Entry/Exit System (EES); and
  • the EU Travel information and Authorisation System (ETIAS).

All these are now going to be put under the single management of a body called the eu-LISA Agency, which is responsible for the operational management of large-scale IT systems in the area of freedom, security and justice. Good luck to them.

The FRA in the meanwhile has been concerned with migrants and migrant children for some time. Last month, it published a report on the European legal and policy framework on immigration detention of children. It took a snapshot of migrant children detained in the EU at a couple of points last year, and found that there were between 160-180 children detained at those times. I am delighted to tell that none were then detained in the UK. The report has numerous recommendations to Member States about how to guarantee children’s rights.

It has also in the past published comprehensive handbooks on the European law relating to asylum, borders and immigration, on the rights of a child, and guidance on the apprehension of migrants in an irregular situation.

Coming back to interoperability, the FRA published last week another report, called ‘Fundamental rights and the interoperability of EU information systems: borders and security’. It draws attention to some of the general problems affecting everyone through greater interoperability, which will be magnified by a comprehensive network of systems - for instance, greater opportunities for unauthorised access and unlawful sharing of information with third parties. Therefore, FRA recommends that there should be inbuilt protections. There should also be the right to rebut a false assumption by the authorities, and to have inaccurate data corrected.

The report has a special chapter on the impact on children, where the negative effects of interoperability are magnified. This special impact on children falls under two headings:

  • Reliability of data - comparisons based on biometric data taken in the past may be less reliable, due to the ongoing physical development of a child.
  • Disproportionate effect of criminal records - they may not indicate whether a child was compelled to commit a crime as a result of trafficking, nor, if it is an immigration offence, whether they had any say in migrating with their parents.

The report does say, however, that interoperability can help with tracing missing children. Maybe not surprisingly, children reported as missing are frequently encountered at border crossing points, and so should be able to be picked up and given appropriate treatment with the new system.

In other words, for lawyers dealing with these problems, there is a growing resource available to assist children and their families, and growing awareness that, especially when unaccompanied, such children need particular legal and other protections.

Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council.

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