Author
The Asylum Act does not explicitly require the administrative authority to appoint a representative or guardian for an unaccompanied minor applying for international protection. The Foreigners’ Residence Act does establish such an obligation, but only for return (administrative expulsion) and detention proceedings.[1] In asylum procedures, therefore, the general rules on representation of minors apply. In principle, every minor who has not acquired full legal capacity (which is obtained at 18 years of age, or earlier through marriage) is capable of legal acts appropriate to their level of mental and volitional maturity.
The MoI may theoretically conclude that appointing a guardian is unnecessary if the applicant is close to the age of 18. However, according to the MoI’s methodological guidance, a guardian must be appointed for every unaccompanied minor applicant in international protection procedures. Without a guardian, the MoI considers that a minor is not even capable of submitting an application for international protection, as the application must also be signed by the guardian.
The law does not provide for a time limit to appoint a guardian for an unaccompanied child. In practice the appointment is made within a few days, since the child cannot be interviewed or otherwise procedurally proceed without a guardian.
As far OPU is aware, there are no major obstacles in practice for guardians to be appointed as soon as possible. The number of guardians available is sufficient to cover the need for guardians in practice, as there are very low numbers of unaccompanied children applying for international protection in the Czech Republic every year.
Czech legislation does not lay down detailed or specific qualification requirements for a representative/guardian of an unaccompanied minor in asylum or migration procedures. The general rules on guardianship apply. The guardian is almost always the Child Social and Legal Protection Authority (OSPOD) (i.e., a municipal child-protection authority). OSPOD acts through its social workers, who must meet the statutory qualifications required for social work positions (university degree in social work or related field, or accredited specialised training). No special training in asylum or migration law is legally required.
The law does not specify the duties of legal guardians with regard to the asylum procedure. The MoI’s methodological guidance states that, within the international protection proceedings, the guardian of an unaccompanied minor has the following duties:
- to be present at every procedural act involving the minor;
- during the asylum interview with the minor: to check whether the minor’s answers have been recorded correctly, to ensure that the minor understands the interpreter, to monitor whether the minor is under significant stress and whether the interview is conducted in a sensitive and non-harmful manner towards the minor, and to read and verify the interview transcript;
- to review other documents contained in the administrative file and comment on them;
- to provide important information on the situation in the minor’s country of origin that may indicate that the minor was persecuted there, or that he or she would face serious harm upon return;
- to appeal against the negative asylum decision; and
- to arrange legal representation for the minor.
[1] Section 119(9) of the Immigration Act: ‘If the foreigner is an unaccompanied minor or a minor in a comparable situation, the police shall immediately appoint a guardian for the administrative expulsion procedure. The police shall inform the guardian and instruct them about their duties.’
Section 124(5) of the Immigration Act: ‘If a decision is being made on the detention of an unaccompanied minor foreign national (§ 180c) or a minor in a comparable situation, the police shall immediately appoint a guardian. The police shall inform the guardian of their appointment and instruct them about the guardian’s duties.’