Legal representation of unaccompanied children

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According to the law, when an application for asylum is lodged by an unaccompanied child, the AIU must immediately notify the Head of the Asylum Service, who must subsequently notify the Director of Social Welfare Services.^[1]. With the establishment of Pournara, persons who have recently arrived in the areas under the effective control of the RoC in an irregular manner are referred to the Centre for registration, including unaccompanied children. At the time of registration anyone claiming to be under 18 years old will be treated as such.

The law provides that the Director of Social Welfare Services acts, either in person or via an officer of the Social Welfare Services, as a representative for unaccompanied children in the procedures provided in the Refugee Law. For judicial proceedings, the Social Welfare Services ensures the representation of unaccompanied children pursuant to the Commissioner for the Protection of Children’s Rights Procedural Rules of 2014.[2] Therefore, representation remains with the Social Welfare Services throughout the asylum procedures except for judicial proceedings where the Commissioner for Children’s Rights is responsible for appointing legal representation.

According to the law, guardianship has automatic and immediate effect, without a decision or act and representation must be taken up and carried out as soon as possible. There is no procedural formality for the Social Welfare Services to take up guardianship and representation, and they are effective in all procedures related to the child.

The role of the representative entails assistance and representation during the administrative examination of the asylum application. In addition, the law provides that the Asylum Service shall ensure that the representative is given the opportunity to inform the unaccompanied child about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare themselves for the personal interview. The Asylum Service, per the Law, allows the representative to be present at the first instance interview and ask questions or make comments, within the framework set out by the responsible officer/caseworker who conducts the interview. On the other hand, the guardian is responsible for the overall well-being of the child, including accommodation, school arrangements, and access to healthcare.

In practice, the representation is carried out by the Social Welfare Services, and specifically by the child’s appointed Guardian. The Guardian does not usually have adequate knowledge or training on legal or asylum issues. During the interview, the representative is always present, but because of these lacuna they are not in a position to contribute in a substantial way. In all cases monitored by the Cyprus Refugee Council,[3] the representative has never asked any questions or made any comments after the interview.

The number of UASC arriving in the country increased significantly in 2021 and again in 2022, reaching  approximately 1200 UASC. This has led to the number of Guardians was once again being insufficient to adequately respond to their needs. In 2022, there was an increase in the number of Social Welfare Officers assigned as Guardians and are currently 31, as seen below, however the number remains insufficient and the lack of knowledge of the asylum framework and procedures continue to be an issue.

Where the asylum application is rejected and an unaccompanied child needs to proceed with a judicial review of the asylum decision, the Commissioner for Children’s Rights appoints a lawyer. The Commissioner carries out trainings with selected lawyers on the representation of children in asylum cases from time to time and has a list of lawyers who have received relevant training to represent, where needed, unaccompanied children in the judicial proceedings of the asylum procedure. When an UASC receives a negative decision on their asylum claim, the Guardian informs the Commissioner for Children’s Rights and requests the appointment of a lawyer that would represent the child before the IPAC. The appointed lawyer, along with an officer from the Commissioner for Children’s Rights office, have a joint meeting with the child to inform them of the appointment and the procedure to be followed. The representation continues until the case is concluded before the court, regardless of whether the child has reached the age of maturity while the procedure is ongoing. It should be noted, however, that legal representation is not afforded to an unaccompanied child who receives a negative decision after they have reached the age of majority.

Until 2021, when an unaccompanied child received a negative decision, a lawyer would be assigned by the Commissioner without any assessment on the merits of the case. However, in 2021 the Commissioner for Children’s Rights addressed a letter to the SWS stating that when a case is referred for legal representation, it should be accompanied by a report/assessment on why an appeal should be submitted on behalf of the child. No information is available on whether this recommendation has been implemented.

The legal and policy framework for unaccompanied children has been repeatedly criticised by the national Ombudsman since 2014. She points out the gaps in both policy and practice.[4] Furthermore, in 2018, the Commissioner for the Rights of the Child issued a series of three reports related to unaccompanied children,[5] raising serious concerns on many issues such as the lack of representation for unaccompanied children with regard to access to reception conditions; legal representation before the Court limited to asylum cases and not reception conditions; the law provides that unaccompanied children and their representative are provided with free legal and procedural information but does not foresee who provides such information; the legal representation provided by the SWS is problematic; and the dual role of the SWS that acts as a guardian and representative is also considered problematic. Since the Report and throughout 2022 no improvements have been noted and the issues raised by the Commissioner remain issues of concern.

^[1] Article 10 Refugee Law.

[2] Procedural Rules 3/2014, available at: http://bit.ly/2mKdxvp.

[3] Information provided by the Cyprus Refugee Council.

[4] Ombudsman, Intervention regarding the treatment of unaccompanied children, 29 May 2014; Report regarding the system of protection and representation of Unaccompanied Minors, 24 August 2015, 41/2015, available in Greek at: http://bit.ly/1iZeaPB.

[5] Commissioner for the Rights of the Child, Έκθεση της Επιτρόπου, αναφορικά με την εκπροσώπηση των ασυνόδευτων ανηλίκων αιτητών ασύλου, December 2018, available in Greek at: https://bit.ly/2F8OlL8.