Author
Regulatory changes
Based on the amendments to the child protection law[1] brought by the Law 191/2022 (specifically including unaccompanied children asylum-seekers under its scope, as well as extending protection during the return proceedings), thus regulating practical gaps, in August 2023 the Ministry of Internal Affairs and the Ministry of Family, Youth and Equal Opportunities adopted a Joint Order[2] regulating and clarifying the appointment, the attributions and the requirements of professional experience and training for persons designated as legal representatives for migrant unaccompanied or separated children, as well as their cooperation with the General Inspectorate for Immigration (IGI). The new regulation introduces the notion of “representative” instead of legal guardian.
Notably, a representative for unaccompanied foreign children may only be responsible for a maximum of 100 children.
Moreover, according to the Joint Order, specialists from NGOs or private social service providers have the opportunity to qualify and be appointed as representatives for unaccompanied foreign children. Special agreements will be concluded to facilitate this process.
The obligation to train people appointed as representatives is entrusted to the national authority ANPDCA through the development of a framework curriculum, which will include training on the child protection system in Romania, as well as the asylum procedure and international protection in its various forms.
The Joint Order introduces the representative’s obligation to conduct monitoring visits to the unaccompanied and separated children who are left in the care of third parties. The representative must
respect the monitoring visits schedule mentioned in the Joint Order regardless of the child’s whereabouts, including for children housed in their community and who are in the care of the adults with whom they left their country or to escape the conflict in Ukraine.
In 2023 according to CNRR,[3] the joint order represents good progress but there are also some concerns. The most problematic provisions are those concerning unaccompanied and separated children who are placed in the care of third parties with whom they left their country of origin. This possibility is poorly defined and lacks sufficient safeguards, potentially exposing children to a wide range of risks, including neglect, human trafficking, and exploitation.
General framework
The law provides for the appointment of a legal representative to an unaccompanied child.[4] IGI-DAI shall take the necessary steps, as soon as possible, to appoint a legal representative to assist the unaccompanied minor applying for asylum during the procedure, including during the admissibility and Dublin procedure as the case may be.[5]
The law prescribes it is not necessary to appoint a legal representative for the unaccompanied minor asylum seeker if they are to reach the age of the majority within 15 days of the filing of the asylum application.[6]
The law also foresees that IGI shall:
- Ensure that the legal representative is given the opportunity to inform the unaccompanied child about the significance and possible consequences of the personal interview and, as the case may be, about the preparation for the personal interview;
- Provide procedural legal information, including information on the withdrawing of international protection, both to the child and to their legal representative;
- Inform the legal representative and the unaccompanied child, in a language that the latter understands or is reasonably supposed to understand, about the possibility of carrying out an age assessment. This information should also include details of the medical examination methods, the possible consequences of its outcome and the consequences of any refusal to undergo this examination.[7]
Timing of appointments
According to the modified Article 1(4)(4), the General Inspectorate for Immigration informs the legal representative and the unaccompanied minor asylum seeker, in a language that they know, regarding the possibility of performing a medical examination to determine age. This information must also include information on the methods of medical examination, the possible consequences of the result of this examination and the effects of any refusal to undergo medical examination.
Neither the Asylum Act nor the Child Protection Act prescribes an exact time limit for the appointment of the legal representative. However, the Asylum Act prescribes that after registering the asylum claim of the unaccompanied child, IGI-DAI shall immediately notify the competent authority, the Directorate General for Social Assistance and Child Protection (DGASPC) territorially competent for the area in which the Regional Centres located, in order to start the appointment procedure of a legal representative. The Asylum Decree complements these provisions, stating that the officer in charge of the registration of the asylum claim of the unaccompanied child shall immediately notify the relevant DGASPC branch office in order to initiate the procedure of appointment of a legal representative.[8] Once established, the legal representation of the unaccompanied asylum-seeking child continues to operate for as long as the child benefits from international protection in Romania.[9]
In the case of an unaccompanied child who has expressed the intention to apply for asylum, in writing or orally, they shall be registered as an asylum seeker and the asylum application will be lodged at the moment of appointment of the legal representative.[10] The asylum procedure is suspended until the appointment of a legal representative. During the period of suspension of the asylum procedure, the child benefits from the rights provided by law.[11]
According to the information provided by IGI-DAI, after registering the unaccompanied minor as an asylum seeker, this institution will immediately notify the competent authority (General Directorate for Social Assistance and Child Protection) in whose territorial area the accommodation centre where the asylum application is to be lodged is located, in order to initiate the procedure for appointing a legal representative. The legal representation of the unaccompanied minor, once established, continues to operate for as long as they benefit from international protection in Romania. In the case of an unaccompanied minor asylum seeker, the asylum procedure is suspended until the appointment of a legal representative. The time from the moment of sending the request for appointment of a representative until the actual appointment is according to them around 3-6 days.[12]
In 2024, the representatives of the institution of The Ombudsman, carried out visits in 4 of the Regional Centers for Procedures and Reception for Asylum Seekers (Rădăuţi, Maramureș – Şomcuta Mare, Giurgiu and Timișoara), at the Territorial Service of the Border Police Constanta and Tulcea, and at the Otopeni Public Custody Center.[13] In 2023, according to the information provided by Ombudsman,[14] no monitoring visits were carried out in the regional centres. The Ombudsman pointed out that, in 2022, its representatives, according to their competence, monitored the respect of the rights of asylum seekers in the Regional Centres for Procedures and Reception for Asylum Seekers (visits were made and information was requested at all 6 centres – Bucharest, Rădăuţi, Maramureș – Şomcuta Mare, Giurgiu, Galaţi and Timișoara). The reports of the visits carried out by the Ombudsman in 2022- 2024 are available in Romanian language on the institution website.
Qualifications and duties of the legal representative
According to the Child Protection Act the legal representative is either the parent or person designated, according to the law, to exercise the rights and to fulfil the parental obligations towards the child.[15] This means that the legal representative substitutes the absent parents.
According to the Asylum Act, the interests of a child are defended by their legal representative.[16] The unaccompanied child is immediately informed of the appointment of the legal representative. The legal representative performs their duties in accordance with the principle of the best interests of the child and has the necessary expertise for this purpose.[17]
The Child Protection Act provides that, in order to adequately support the interests of the child, DGASPC designates a person with legal or social assistance background from its staff or an authorised private body, to support the rights of the child and to participate, together with the child to the entire refugee status determination procedure.[18]
The legal representative has to be present at the interview with the unaccompanied child,[19] and may intervene at the end of the interview.[20] The legal representative informs the unaccompanied child asylum seeker of the purpose and possible consequences of the personal interview and takes the necessary steps to prepare the child for it.[21] In the case of a child, the appeal is filed by their legal representative. A child who has reached the age of 16 may file the complaint in their own name.[22]
The legal representative also has to submit the request of enrolment of the unaccompanied child to preparatory courses.[23]
Legal representatives consider their mandate limited to assisting the child in administrative and judicial procedures related to the asylum claim, i.e. to attend interviews and court hearings. As a consequence, this mandate ends when the asylum procedure is completed. Legal representatives consider that is not their mandate to ensure the well-being of the unaccompanied child.
The CNRR[24] flagged the following issues concerning unaccompanied minors in 2023: At Regional Centre Timișoara, there were situations where the asylum applications of unaccompanied minors were not analysed swiftly. In the case of unaccompanied minor asylum seekers, communication between them and the legal representatives appointed by the DGASPC is not constant and tends to be limited to the measures and activities necessary for the asylum procedure. According to the information available to CNRR, the unaccompanied minors accommodated in the regional centres in Timișoara, Giurgiu, Şomcuta Mare and Rădăuţi either have no contact with the legal representative or there is a very limited contact, and the only counselling they receive is from NGOs. The times when minors have contact with the legal representative appointed by the DGSPC are when the IGI conducts interviews in the administrative phase of the asylum procedure, or at court, when the legal representatives are required by law to be present. At the centre in Galaţi, a slightly more favourable situation could be observed in terms of communication between the legal representative and the unaccompanied minors, who showed a greater interest in the situation of minors, both legally and socially/culturally.
According to UNHCR,[25] it results that the usual practice shows that the DGASPC is duly assuming its responsibilities for guardianship of asylum-seeking unaccompanied children. Nonetheless, there have been occasions where areas of improvement have been identified with regard to the DGASPCs’ ability to promptly intervene upon the arrival of asylum-seeking unaccompanied minors to the reception centres. More specifically, there have been instances where unaccompanied children arrive at Reception Centres, triggering notifications to the DGASPCs, and where these children end up leaving the centre after a short period of time and before the DGASPC has had an opportunity to assess the children and relocate them to the dedicated centres for unaccompanied minors. Moreover, other instances show that children have left the DGASPC centres, even when a legal representative was appointed. While the reasons for departure are unknown, this shows some limitations in fully engaging the child in the process and keeping active and close communication with them. The designated legal representative appointed by DGASPC, most often the Director, of the centre of placement is expected to maintain consistent communication with the child. While DGASPC generally adheres to procedural norms, there seems to be a need for improved engagement with the children, for instance due to lack of interpreters in certain locations or for specific languages, impeding effective communication with asylum-seeking children and adolescents. Although, in 2024 there were only 50 unaccompanied minors, it has also been noted that high numbers of unaccompanied minors might be assigned to individual legal representatives and that until recently there was a lack of clearly defined roles and responsibilities for the legal representatives. Moreover, challenges persist in ensuring an adequate best interest procedure, particularly regarding children who arrive in Romania being accompanied by an adult who is not their parent nor their appointed legal guardian. Addressing this matter requires a thorough review of existing protocols and coordination mechanisms to ensure a seamless and effective process for the protection and care of unaccompanied children and adolescent asylum seekers. It is to note that progress has been made in 2023 through the issuance of the Order No 119/20.643/2023 on the conditions of appointment, role, tasks and requirements of education, training and professional experience for persons appointed as representatives for unaccompanied foreign minors who apply for or are granted a form of international protection.[26] The Order outlines fundamental principles, which should be taken into consideration by the DGAPSCs, particularly with regard to the time taken to respond to situations of unaccompanied children arriving at reception centres and maintaining regular contact between the appointed legal representatives and the child regardless of where they reside.
According to Save the Children Romania in 2023[27], the legal representation of minors has raised many issues in the past years. Although legal representatives are appointed shortly after the arrival of unaccompanied minors, most minors are not aware who their legal representatives are; they cannot contact them directly and they are not assisted in accessing the various social benefits and rights. The activities of legal representatives are limited to assisting the children at interviews and signing documents related to the procedure. There are also communication impairments between legal representatives and unaccompanied children caused not only by the language barriers but also by the lack of involvement of legal representatives. Given that there are no clear provisions regarding the role and duties of legal representatives, there have been cases in which legal representatives are managing the cases differently.
According to UNHCR Romania, starting with August 2023, the lack of active involvement of legal representatives in the asylum procedure is due to the lack of clarity of the current legislation regarding the duties of the legal representative. There is no coherence between the 2 legal acts (Asylum Act and Child Protection Act) and there are poor methodologies regarding the role of the legal representative in the asylum procedure. This was confirmed by Save the Children.
Save the Children noted that previously there have been trainings and conferences on legal representation of unaccompanied minors organised by NGOs or UNHCR, but there is no coherent or mandatory training program. In 2024, CNRR published a designated information material for the legal representatives.[28]
[1] Law no. 272/2004 on protection and promotion of the rights of the child, republished in Official Gazette no. 159 of 05.03.2014, available in Romanian here.
[2] Order no. 119/20.643/2023, published in Official Gazette no. 749 of 17.08.2023, available in Romanian here.
[3] CNRR (Romanian National Refugee Council), Input by civil society organisations to the Asylum Report 2024, 2023, available here.
[4] Articles 16 and 40 Asylum Act.
[5] ibid. Article 16(2).
[6] ibid. Article 16(3).
[7] ibid. Article 16(4).
[8] Article 21(3) Asylum Decree.
[9] Article 40(1) Asylum Act.
[10] ibid. Article 39(3).
[11] ibid. Article 40(2).
[12] Information provided by IGI-DAI, 18 January 2024.
[13] Ombudsman, Centres for migration 2024 reports, can be found here.
[14] Information provided by Ombudsman, 9 January 2024.
[15] Article 4(g) Child Protection Act.
[16] Article 39(1) Asylum Act.
[17] ibid. Article 16(2^1).
[18] Article 77(3) Child Protection Act.
[19] Article 47(1) Asylum Act.
[20] Article 23(1) Asylum Decree.
[21] Article 47(2) Asylum Act.
[22] Articles 56(2) and 66(2) Asylum Act.
[23] Article 6(4) Asylum Decree.
[24] Information provided by CNRR, 16 January 2024.
[25] Information provided by UNHCR, 23 January 2024.
[26] Order No 119/20.643/2023 on the conditions of appointment, role, tasks and requirements of education, training and professional experience for persons appointed as representatives for unaccompanied foreign minors who apply for or are granted a form of international protection, available in Romanian here.
[27] Information provided by Save the Children in 2024.
[28] CNRR, Information material for designated representatives, found here.