Some of the recommendations issued by the UN Committee on the Rights of the Child in 2014 have been implemented in Germany: Unaccompanied minors are now deemed capable of following legal proceedings (Verfahrensfähigkeit) up to the age of 18 as a standard, a legal basis has been established for the so-called age determination in relation to the Child and Youth Welfare Law, and asylum hearings of unaccompanied minors are now being conducted by special commissioners.
Since 2015, a number of legal amendments affecting refugee children and adolescents have been enacted. In doing so, however, legislators have not adequately taken into account the obligation from Article 3 Paragraph 1 of the UN Convention on the Rights of the Child, which requires that affected child-welfare matters be investigated and given priority. The number of children and adolescents forced to endure uncertain residency situations, such as repeated exceptional leave to remain (Kettenduldung), also increased during the reporting period, which has considerable negative consequences for the development and education prospects of those affected. As at 30 June 2018, 49,212 minors had the status of having been granted ‘exceptional leave to remain’ (Duldung).
Access to protection and humanitarian aid when exercising rights under the UN Convention on the Rights of the Child (Article 22) has seen significant tightening at a legal and practical level. In order for access to appropriate protection and care to be provided, unaccompanied minors and their independent legal representation need to be identified from the outset. Both have so far been the primary responsibility of public youth support services.
But this primary responsibility is sometimes evaded. In many cases, for instance, unaccompanied minors who had been picked up by the federal police at the national borders were not handed over to the youth welfare authorities as required: In 2016, 649 unaccompanied minors were pushed back or turned away at the border.
Significant shortcomings were apparent during the reporting period right from the time of identifying unaccompanied minors. Minors are often considered accompanied if adults travelled with them, even if these adults have no parental or custodial ties to them. The main instrument used to identify an official need for protection if no ID papers are available is the age assessment process. In 2015, a legal basis as per Section 42f of Volume VIII of the German Social Code was established for official age assessments when children are taken into temporary care by child and youth support services. But there continues to be a lack of concentrated jurisdiction among youth welfare authorities, and of a legally binding effect attached to these results, e.g. for the Foreigners’ Bureau. This results in various authorities obtaining differing assessment results.
Another reason why access to legal protection during the age-assessment process conducted by child and youth support services is uncertain is because, at the time of the assessment, only the emergency representation by the age-assessing youth welfare office itself exists. This consequently leads to conflicts of interest. Although Section 42f of Volume VIII of the German Social Code stipulates an appropriate sequence of measures to be applied, the wording of the law does not mention any concrete procedural standards, nor does it legally discount the possibility of degrading methods, including genital examinations. Only the explanatory memorandum specifically discounts this. The word of the law similarly fails to mention the principle based on Article 3 Paragraph 1 of the UN Convention on the Rights of the Child, which states that, in cases of doubt, youths must be considered minors.
In addition to the existing shortcomings, further disadvantageous reforms are also being discussed at the time of this report’s publication. These discussions relate to key issues regarding the protection of unaccompanied minors, such as the age-assessment process, the mandatory use of medical methods, and the notion of calling into question the primary jurisdiction of public youth support services when it comes to identification and initial housing.
The asylum process
Although improvements were made to the asylum process for unaccompanied minors during the reporting period, child-specific reasons for flight, such as recruitment as child soldiers or gender-specific violence, are still not adequately taken into account.
The asylum process for accompanied minors requires improvement, as their need for protection is often neglected. There is no obligation to investigate child-specific reasons for flight, and children are treated as a legal appendix to their parents in proceedings. There is also a lack of procedural requirements stipulated for child-friendly counselling prior to the hearing, and having the hearing conducted by specially trained staff.
This situation has significantly deteriorated as a result of the fact that, at an administrative level, families’ asylum proceedings have been shortened, and are increasingly being conducted in the space of a few days at so-called ‘Anker-Einrichtungen’ (processing centres), reception centres or similar. This acceleration has made it more difficult, and therefore less common than before, to identify child-specific reasons for fleeing, as there is generally no access to independent, needs-based counselling before or during the process.
At a legal level, accompanied minors are governed by the accelerated process under Section 30a of the German Asylum Act (AsylG), introduced in 2016, and the obligation to live in ‘special reception centres’. The consequences of this are impeded access to legal counselling and translation/interpreting, shorter appeal periods, and tighter restrictions on free movement, which, if breached, can result in feigned retraction of the asylum application. Both accompanied and unaccompanied children and adolescents are similarly not exempt from the airport proceedings established in Section 18a AsylG.
Deportation, arrest and detention
No legal exemption has been established for custody pending deportation, which can last up to 18 months (Section 62 of the German Residency Act, AufenthG), or for the detention period, which was extended to up to ten days in 2017 (Section 62b AufenthG). An increasing number of families were deported during the reporting period, resulting in family separations, some of which were illegal and carried out using disproportionate force.
- The National Coalition Germany recommends that the UN Committee call on the German federal government to
- 122. Ensure legislators and the administration give priority to the best interests of the child, including in matters of migration law and other related areas;
- 123. Legally establish child and youth support services as having primary jurisdiction over unaccompanied minors;
- 124. Explicitly prohibit unaccompanied minors from being pushed back or turned away at the border;
- 125. Establish age-assessment processes geared around the best interests of the child, prohibit the use of degrading methods, such as genital examinations, and explicitly establish the principle of ‘if in doubt, classify as a minor’ by law;
- 126. Ensure qualified legal representation (e.g. in asylum and residency law) for unaccompanied minors right from the outset;
- 127. Bindingly verify and legally acknowledge child-specific reasons for fleeing, such as recruitment as child soldiers, forced marriage, or child trafficking;
- 128. Ensure mandatory, child-friendly counselling prior to the asylum hearing, and have the hearing conducted by specially trained staff, including for accompanied minors;
- 129. Establish express legal exemptions for accompanied and unaccompanied minors in relation to accelerated asylum proceedings, airport proceedings, detention, and custody pending deportation;
- 130. Expressly exempt accompanied and unaccompanied minors from sanctions and exclusion grounds in relation to benefits, asylum and residency;
- 131. Ensure that the best interests of the child are the pivotal factor in decisions regarding residence permits for those who have been granted long-time exceptional leave to remain. To do this, repeated exceptional leave to remain (Kettenduldung) must be abolished, and children and adolescents given access to a permanent right to remain.