Legal representation of unaccompanied children

Author

Forum Réfugiés Visit Website

In 2022, 980 first asylum claims from unaccompanied children were registered by OFPRA, compared to 867 in 2021. Statistics on the year 2023 were not available at the time of writing. After having steadily decreased since 2011, the number of claims introduced by unaccompanied children has been increasing in line with the overall number of asylum seekers in Europe. Yet, it remains very low compared to the overall number of unaccompanied children reported to Childcare Protection.

Source: OFPRA, Activity reports, available in French at: https://bit.ly/3my3uOr; Ministry of Justice, Unaccompanied minors mission, Annual Activity Report 2021, 2022, available in French at: https://bit.ly/3MDTSfS.

In 2022, the unaccompanied children seeking asylum in France mainly came from Afghanistan (60.7% of all UAM asylum claims), followed at a distance by Guinea (5%), Somalia (4.4%) and Ivory Coast (4.4%). The socio-demographic characteristics of these asylum seekers show that 88% were between 16 and 17 years old and 84.2% were boys. In 2022, the recognition rate was 82.5% at OFPRA (95.4% when including protections granted in appeal), as opposed to a 29.2% first instance recognition rate overall.[1]

OFPRA has sought to improve the protection of unaccompanied children seeking asylum (see also Special Procedural Guarantees). According to the Chair of the working group on unaccompanied minors at OFPRA, a number of actions and objectives have been set up:[2]

• Training protection officers throughout all geographic sections on vulnerabilities, in particular on assessing an asylum claim introduced by an unaccompanied minor and conducting an interview with this category of asylum seekers.
• Assessing unaccompanied minors’ claim in a shortened period of time: the objective is to have their claim processed within 4 months maximum.
• Raising awareness on the possibility for unaccompanied minors to apply for asylum;
• Conducting interviews of unaccompanied minors with specially trained protection officers;
• Interviewing unaccompanied minors three months after registering their claim at OFPRA to give them time to get properly prepared;
• Proceedings have been harmonised and online thematic folders on this topic have been created for protection officers.

As unaccompanied children do not have any legal capacity as minors, they must be represented for any act under all asylum procedures. When they are deprived of legal representation (i.e., if no guardian has been appointed by the guardianship judge before placement in care), the Public Prosecutor, notified by the Prefecture, should appoint an ad hoc administrator (legal representative) who will represent them throughout the asylum procedure.[3] This legal representative is appointed to represent the child only in administrative and judicial procedures related to the asylum claim. This person is not tasked to ensure the child’s welfare in the way a guardian would be. Every 4 years, within the jurisdiction of each Appeal Court, a list of ad hoc administrators is drawn up. They represent children held in waiting zones at the border or children who have applied for asylum. These ad hoc administrators receive a flat allowance to cover their expenditure. No specific training or at minimum awareness of asylum procedures is required for their selection.[4]

As soon as possible after the unaccompanied child has introduced their asylum claim, the Prefecture shall engage in investigating to find the minor’s family members, while protecting their best interests.[5]

At the border, an ad hoc administrator should be appointed “without delay” for any unaccompanied child held in a waiting zone.[6]

In practice, the appointment of an ad hoc administrator can take between 1 to 3 months. However, there are jurisdictions where the lack of ad hoc administrators or their insufficient number does not enable the prosecutor to appoint any. These children are therefore forced to wait until they turn 18 to be able to lodge their asylum application with OFPRA.[7]

At OFPRA level, the legal representative (tutor, ad hoc administrator) is the only person authorised to sign the asylum application form. The CNDA has annulled an OFPRA decision rejecting an asylum claim of an unaccompanied child, after an interview conducted without the presence of the ad hoc administrator. In this decision, the Court held that the conduct of an interview in such circumstances as a violation of the fundamental guarantees applicable to asylum seekers.[8]

^{[1] OFPRA, 2022 activity report, 2023, available in French at: https://bit.ly/3IRnyTs.}

^{[2] OFPRA, 2016 Activity report, 2017, available in French at: https://bit.ly/41DlyWB, 31.}

^{[3] As provided by Article 17 Law of 4 March 2002 on parental authority and by Article L.741-3 Ceseda.}

^{[4] Article R.111-14 Ceseda provides that, in order to be included in the list, any individual person must meet the following criteria: 1. Be aged between 30 and 70; 2. Demonstrate an interest on youth related issues for an adequate time and relevant skills; 3. Reside within the jurisdiction of the Appeal Court 4. Never have been subject to criminal convictions, or to administrative or disciplinary sanctions contrary to honour, probity, or good morals; 5. Have not experienced personal bankruptcy or been subject to other sanctions in application of book VI of the commercial code with regard to commercial difficulties.}

^{[5] Article L. 521-12 Ceseda.}

^{[6] Article L. 343-2 Ceseda.}

^{[7] Practice-informed observations by Forum Réfugiés and partners. See also Défenseur des Droits, Décision no. 2022-174, 5 September 2022, available in French at : https://bit.ly/3PEEFMl and APRADIS, ‘L’exercice de l’administration ad hoc pour mineurs: difficultés et bienfaits.’, February 2018, available in French at : https://bit.ly/3TRDziA.}

^{[8] CNDA, Mme Y, Decision No 14012645, 5 October 2016.}