Author
The law provides for the appointment of a legal representative to an unaccompanied child.[1] 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.[2]
The law prescribes it is not necessary to appoint a legal representative for the unaccompanied minor asylum seeker if he or she is to reach the age of the majority within 15 days of the filing of the asylum application.[3]
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 his or her 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.[4] (2) Oficiul National pentru Refugiati ia masuri pentru numirea, in cel mai scurt timp, a unui reprezentant legal care sa il asiste pe solicitantul de azil minor neinsotit pe parcursul procedurii de azil.(2) Inspectoratul General pentru Imigrari ia masuri pentru numirea, in cel mai scurt timp, a unui reprezentant legal care sa il asiste pe solicitantul de azil minor neinsotit pe parcursul procedurii de azil, inclusiv pe durata procedurii tarii terte sigure sau a procedurii de determinare a statului membru responsabil.
Timing of appointments
According to the modified Article 1(4)(4), the National Refugee Office informs the legal representative and the unaccompanied minor asylum seeker, in a language that the latter knows, 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 with 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.[5]Once established, the legal representation of the unaccompanied asylum-seeking child continues to operate for as long as the childbenefits from international protection in Romania.[6]
In the case of an unaccompanied child who has expressed the intention to apply for asylum, in writing or orally, he or she shall be registered as an asylum seeker and the asylum application will be lodged at the moment of appointment of the legal representative.[7]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.[8]
In practice, the appointment of legal representatives takes place as follows:
Timișoara: The notification is sent as soon as possible to DGASPC and the legal representative is appointed within 30 days, according to the director of the centre. The appointment order is received by IGI-DAI within 30 days. Without this order they cannot schedule the interview. DGASPC appoints the same person, who is a legal counsellor, as the legal representative for all the unaccompanied minors. According to the JRS representative discussions were held with the DGASPC representatives to appoint more legal representatives as the number of unaccompanied minors increased considerably in 2021. DGASPC stated that this was not possible due to organizational restricctions.
Şomcuta Mare: IGI-DAI sends out the notification to DGASPC the second day after the unaccompanied child is accommodated in the Regional Centre. In general, the legal representative is appointed as soon as possible; no delays in its appointment have been reported. In 2021, a single legal representative was appointed for all the unaccompanied children (around 50- 60 children at the beginning of the year; in the last few months of 2021 the numbers decreased). NGO representatives prepare the appeals against negative decisions. JRS
Galaţi: IGI-DAI sends a notification to DGASPC for the appointment of a legal representative within a maximum of 3 days or even on the day of registration of the asylum claim of the unaccompanied child, if possible. In 2020, DGASPC appointed a new legal representative for unaccompanied children. She works at the Day Centre for Children in Situations of Risk of Separation from Parents within DGASPC. There is only one legal representative appointed for all the unaccompanied children (JRS registered 118 unaccompanied minors in 2020 and even more in 2021), with no other person to fulfil her duties in case she is on medical leave or holidays. The legal representative is a social assistant. In case the unaccompanied children leave the centre, a decision of withdrawal of the legal representative is issued and if they return to the centre the legal representative is appointed again. Unaccompanied children do not receive the state financial allowance for children. The legal representative only signs the necessary papers. Unaccompanied minors cannot contact her.
Rădăuţi: IGI-DAI sends a notification to DGASPC for the appointment of a legal representative. The procedure of appointment is burdensome and delayed. There is only 1 legal representative appointed for unaccompanied children. The legal counsellor was not aware of his profession. During his holidays the legal representatives is substituted by another legal representative. According to the stakeholders interviewed, the legal representatives do not meet or discuss with the unaccompanied children before the interview. They only attend the interviews and do not draft legal submissions.
Giurgiu: DGASPC appoints a legal counsellor to act as legal representatives. According to the director of the centre he/she is appointed in 1 – 2 days of the minor arriving. According to JRS, several representatives are appointed: some of them are social assistants and some legal counsellors, some of them attend the interviews and others the court hearings. The JRS representative reported that the legal representatives do not communicate with the minors, even at the interview, they have no knowledge of English language, they only come to the centre when they are requested and sometimes, not even then. There was a period when they did not even know who the legal representative of the minors was. This occurred when DGASPC transferred this responsibility to other employees, because the previous ones did not have the required training. Appeals are lodged by the legal representatives. The director of the centre stated that they discuss the interview with the unaccompanied children before it takes place with the help of an interpreter.
Bucharest: The notification for the appointment of the legal representative is made on the day of their arrival at the centre and the legal representative is appointed within 2 weeks. No delays in the appointment of the legal representative were reported by the JRS representative. There is only one legal representative for all unaccompanied children. The director of Vasile Stolnicu also reported that there are no longer delays in appointments. However, he mentioned that there 2 legal representatives.
In February 2020, UNHCR notified the Romanian Ombudsman on the situation of a number of asylum-seeking children under 16 years accommodated in Stolnicu Regional Centre because DGASPC District 2 Bucharest has no available places to take them over. Representatives of the Romanian Ombudsman conducted an investigation at the regional centre Stolnicu and DGASPC. Among other things it was found that out of 15 unaccompanied children accommodated in the centre only 9 had a legal representative appointed, as for the other 6 children DGASPC did not respond to IGI-DAI notifications. The Ombudsman stated that although there is no time limit prescribed by the law for the appointment of the legal representative for unaccompanied minors, the time frame in which DGASPC Sector 2 achieves this, sometimes up to almost 3 weeks, is far too long. It was also noticed by the Ombudsman that the delays are caused by bureaucratic rules.[9]
According to the JRS representative in 2021, unaccompanied minors generally left the centre before they were were taken over by DGASPC. Usually, their care is taken over by DGASPC in one-two weeks. Around 12 unaccompanied children’s care was taken over and the children were accommodated at Ciresarii centre of DGASPC in 2021.
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.[10] This means that the legal representative substitutes the absent parents.
According to the Asylum Act, the interests of a child are defended by his or her legal representative.[11]The unaccompanied child is immediately informed of the appointment of the legal representative. The legal representative performs his or her duties in accordance with the principle of the best interests of the child and has the necessary expertise for this purpose.[12]
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.[13]
The legal representative has to be present at the interview with the unaccompanied child,[14] and may intervene at the end of the interview.[15]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 childfor it.[16] In the case of a child, the appeal is filed by his or her legal representative. A child who has reached the age of 16 may file the complaint in his or her own name.[17]
The legal representative also has to submit the request of enrolmentof the unaccompanied child to preparatory courses.[18]
The 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.
Galaţi: the legal representative considers that it is not her duty to draft requests for enrolment at school for unaccompanied children over 16 years of age. She does not speak with the children before the interview. Children do not know the legal representative; they cannot contact her directly; in order to contact his or her legal representative the child has to submit a written request at IGI-DAI and IGI-DAI notifies DGASPC. Appeals are drafted by NGOs. The legal representative only signs them and she needs to be notified a day before. Her tasks are limited to signing papers and being physically present at interviews.
In Şomcuta Mare, one legal representative was appointed. It was reported that he was not knowledgeable in Asylum Law. The legal representative did not hold discussions with the children before the interview but was in contact with the children through JRS. The state financial allowance for children is drafted by the NGO representatives and DGASPC. For new asylum-seeking unaccompanied minors no request for state financial allowance is made, because they leave the centre. In any case they receive the allowence retroactively.
The legal representative who was appointed by DGASPC to represent unaccompanied children in Rădăuţi was substituted by 1 male. The legal representatives only attend the interviews and court hearings and do not file appeals against negative decisions. NGOs also draft the requests for the financial allowance.
In Bucharest, it was reported by the JRS representative that the unaccompanied minors, accommodated in Stolnicu Regional Centre, do not receive the state financial allowance for children because the legal representative does not apply for it as they do not consider it to be his/her duty. However, for the children accommodated in Gavroche Centre the legal representatives do apply for the financial allowance, but even here not for all the children. The JRS representative mentioned an unaccompanied child who was not receiving the state financial allowance. This is a persistent issue, which affects the social rights of unaccompanied children. In most of the cases, the unaccompanied children meet their legal representative at the preliminary interview. They do not discuss anything with them before the interviews. However, it was reported by the JRS representative that they have started to cooperate with NGOs. On the other hand, the director of Vasile Stolnicu centre said he was certain that they discussed issues with the minors and in general the appeals are drafted by the legal reprsentatives.
In Timișoara, the legal representative only assists the unaccompanied child during the interviews; According to the director of Timișoara Regional Centre he does not have discussions with the children accommodated in the centre before the interviews, but he does with those accommodated at DGASPC. Further, the director mentioned that he appeals the negative decision of IGI-DAI and assists the child in the court proceedings but does not fulfil any other tasks. Conversely the JRS representative reported that the legal submissions and other requests are drafted by the legal counsellor of CNRR. She also took any necessary stepts to identify the relatives of the minors. As in Somcuta Mare, for the new asylum-seeking unaccompanied minors no request for state financial allowance is made, because they leave the centre. The JRS representative said that she is not aware of any application submitted by an unaccompanied minor that reached the court.
According to Save the Children Romania, the legal representation of minors raises many issues. 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 areno clear provision 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, 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 no guidelines regarding the role of the legal representative in the asylum procedure. This was confirmed by Save the Children.
The same was echoed in the special report of the Romanian Ombudsman on Respecting Children’s Rights in Romania of 2019. It was stated that there are major legislative gaps regarding the legal representation of unaccompanied children and that there is a need for clear legal provisions on the appointment, duties and especially the scope of the duties of the legal representative of unaccompanied minors.[19]
Save the Children noted that previously there have been trainings and conferences on legal representation of unaccompanied minors organized by NGOs or UNHCR, but there is no coherent or mandatory training program.
The issue of the inefficient collaboration with DGASPC in the protection of unaccompanied children was discussed during a meeting between the Ombudsman’s representatives and IGI. IGI stated that they are drafting a Protocol that will establish different points regarding the collaboration of the Regional Centres with DGASPC in order to remedy this situation.[20]
[1] Articles 16 and 40 Asylum Act.
[2] Article 16(2) Asylum Act.
[3] Article 16(3) Asylum Act.
[4] Article 16(4) Asylum Act.
[5] Article 21(3) Asylum Decree.
[6] Article 40(1) Asylum Act.
[7] Article 39(3) Asylum Act.
[8] Article 40(2) Asylum Act.
[9] Ombudsman, Recommendation 57 of 26 February 2020, available in Romanian at: https://bit.ly/380EvZR.
[10] Article 4(g) Child Protection Act.
[11] Article 39(1) Asylum Act.
[12] Article 16(2^1) Asylum Act.
[13] Article 77(3) Child Protection Act.
[14] Article 47(1) Asylum Act.
[15] Article 23(1) Asylum Decree.
[16] Article 47(2) Asylum Act.
[17] Articles 56(2) and 66(2) Asylum Act.
[18] Article 6(4) Asylum Decree.
[19] Ombudsman, Special Report on Respecting the Children’s Rights in Romania, 2019, 198, available in Romanian at: https://bit.ly/362ZDef.
[20] Ombudsman, Annual Report 2018, 601-602.