Legal representation of unaccompanied children

Author

Nikola Kovačević

A slightly higher number of children, including unaccompanied and separated children in particular, was registered in the course of 2022 and at the same time the number of genuine asylum seekers out of this population remains low. In total, 82 UASC were issued with the registration certificate (compared to 60 in 2019). However, only 4 of them submitted asylum application. In 2023, at least 761 UASCs entered Serbia, but only 27 of them were registered while the others left Serbia: Syria (10), Afghanistan (8), Egypt (3), Tanzania (1), Iraq (1), India (1), Türkiye (1), Pakistan (1) and Sierra Leona (1). None of them lodged asylum application in 2023.

In the history of the Serbian asylum system, only 16 UASC were granted asylum in Serbia:

The legal framework that aims to protect unaccompanied and separated children in the course of the asylum procedure is largely in line with the international standards, however, it is clear that the authorities do not have the capacities to meet the established level of protection.^[2]

The Asylum Act explicitly prescribes the principle of the best interests of the child. Accordingly, when assessing the best interests of the child, the competent authorities must take into account the well-being, social development and background, their views depending on their age and maturity, the principle of family unity and the need to provide assistance, particularly it is if suspected that the child might be a victim of human trafficking, a victim of family violence or other forms of gender-based violence.^[3]

The guardianship for an unaccompanied child is governed by the Family Act that prescribes conditions and rules for the placement of children without parental care under guardianship. The appointed guardians are persons with personal characteristics and abilities necessary to perform the duties of a guardian and who have agreed to be guardians. In order to establish whether one fulfils the conditions to be a temporary guardian of a child, a procedure defined in the Family Act and the accompanying by-laws must be conducted. This decision may only be taken by a guardianship authority and it includes a guardianship plan.^[4]

A temporary guardian must be appointed immediately after it has been established that the child is unaccompanied / separated and no later than prior to the lodging of their asylum application.^[5] The police cannot register an unaccompanied child who has expressed the wish to seek asylum in the absence of a temporary guardian.^[6]

The temporary guardian must be present with the child in all the procedures before the State authorities and represent their interests. It is also prescribed that a temporary guardian must be a person with personal characteristics and abilities necessary to perform the duty of a guardian, and this assessment is made by a competent territorial guardian authority, under the provisions of the Family Act and accompanying by-laws. A guardian may not be, inter alia, a person whose interests go against the best interest of a child put under their guardianship, and a person who due to different reasons cannot be expected to properly perform the activities of a guardian.^[7]

One of the greatest challenges in practice has been the fact that the guardianship authorities lacked sufficient human resources to ensure effective support to each individual child.^[8] For instance, it was a frequent situation that one guardian was appointed to dozens of UASC, making it impossible for them to develop a meaningful and trusting relationship with the children notwithstanding their enormous efforts and motivation.^[9] Thus, only those children who apply for asylum are provided with the possibility to establish a deeper connection with the multidisciplinary team which involves a legal representative, a temporary legal guardian and a psychologist. The children who do not apply for asylum are mainly provided with accommodation, urgent health care and food, but their other necessary needs are not assessed at all.

It is worth mentioning that a special instruction was issued by the Government which stipulates that field social workers inform the territorially competent guardianship authority immediately upon the information or direct knowledge about an unaccompanied child.^[10] The next step is the urgent appointment of a temporary guardian to the child.

In 2022, BCHR and IDEAS did not notice any difference in the treatment of unaccompanied children in comparison to adult asylum seekers in terms of the length of the asylum procedure, (except in one case where the procedure lasted for 6 months), interviews and the behaviour of asylum officers. There were still situations in which the personal interview lasted for hours. However, in several decision standards regarding International Child Law (ICL) were thoroughly taken into consideration during the asylum procedure. On the other hand, there were instances in practice in which child-specific guarantees were entirely neglected (e.g., due to the inadequate BID and the length of asylum interview) in terms of ICL standards. Since there were no decisions in relation to UASCs in 2023, it is not possible to provide an updated assessment.

In March 2022, CESCR recommended that Serbia provides all unaccompanied and separated children with alternative care arrangements and guardianship protection and ensure that they continue education with adequate support, including adequate language learning.^[11] Similar recommendation was issued by the Human Rights Committee.^[12]

^[1] Brother and sister.

^[2] Committee on the Rights of the Child, Concluding observations on the combined second and third reports of Serbia, 7 March 2017, CRC/C/SRB/CO/2–3, available at: https://bit.ly/3T8zneH, paras 12-13, 22-23, 54 (d), 56-57, 62 (a) and 68 (d); Human Rights Committee, Concluding observations on the third periodic report of Serbia, 10 April 2017, CCPR/C/SRB/CO/3, available at: https://bit.ly/46njRy9, paras. 32-33.

^[3] Article 10(2) Asylum Act.

^[4] Articles 125 and 126 Family Act.

^[5] Article 12 Asylum Act.

^[6] Article 11 Asylum Act.

^[7] Article 128 Asylum Act.

^[8] Human Rights Committee, Human Rights Committee, Concluding observations on the third periodic report of Serbia, 10 April 2017, CCPR/C/SRB/CO/3, available at: https://bit.ly/46njRy9, paras 32-33;     Committee on the Rights of the Child, Concluding observations on the combined second and third reports of Serbia, 7 March 2017, CRC/C/SRB/CO/2–3, paras 56-57. See also BCHR, Situation of Unaccompanied and Separated Children in Serbia, 2017, available at: https://bit.ly/3SQ0L0M, paras 22 and 39.

^[9] That was the case in AC in Bogovadja, which was designated for the accommodation of UASC in 2020, as well as AC in Sjenica.

^[10] Instruction of the Ministry of Labour, Employment, Veteran and Social Affairs on procedures of centres for social welfare – guardianship authorities in accommodation of minor migrants /unaccompanied refugees, no. 019–00–19/2010–05 of 12 April 2018, Chapter II.

^[11] CESCR, Concluding observations on the third periodic report of Serbia, 4 March 2022, E/C.12/SRB/CO/3, available at: https://bit.ly/47AhcCo, paras. 32-33.

^[12] HRC, Concluding observations on the fourth periodic report of Serbia*, CCPR/C/SRB/CO/4, 3 May 2024, available at: https://bit.ly/3zSmiyo, paras. 32-33.