Jacqueline Bhabha on Human Rights and Child Asylum Seekers

Interviewed by Molly Lanzarotta on May 23, 2006

Forced migration of refugees or trafficked persons has emerged in recent decades as a critical human rights issue. The research of Jacqueline Bhabha focuses on an urgent aspect of this issue: child asylum seekers separated from their families. Bhabha examines the legal mechanisms that seek to protect these children separated from their families because of persecution or trafficking.

Bhabha is a faculty affiliate of the Carr Center for Human Rights Policy and adjunct lecturer in public policy at the Kennedy School of Government. She is the executive director of the University Committee on Human Rights Studies at Harvard University and a lecturer at Harvard Law School.

Q: Provide some background on the issue of forced migration and explain where children fit into these populations.

Bhabha: Forced migration has always been an issue in our world; it's not a modern or recent phenomenon. But since WWII, there's been an acceptance that states have a responsibility to protect those people who are fleeing persecution from their own governments. In other words, where people don't have a state of their own to protect them there has been an acceptance in the international community that other states have obligations. Children have, again, always been part of this flow of forced migrants. Most children, of course, flee with their families, their parents or siblings. But increasingly, we've come to see that children fleeing alone is an urgent problem.

It may be that this has come to be more noticeable simply because we are paying more attention to children rather than because the numbers are much greater. We know more about the phenomenon than we once did. But I think it's also a factor related to the world we live in, the fact that war now impinges on civilian populations, including children, much more than it used to. The fact of globalization has meant that increasing numbers of families are divided and so children are having to fend for themselves. In many situations, families who can't afford to send the whole family to safety may choose to send one or two children. We see this particularly in war-torn societies-for example, Afghanistan-where families have chosen to send one child, usually a son, to safety because they can't afford to get everybody out.

So, for various reasons children are part of this phenomenon of forced migration and have increasingly come to our attention.

Q: In what areas/countries are these problems most prevalent today?

Bhabha: Certainly war-torn societies, like Somalia, Sudan, Iran, Iraq, have produced large numbers of children who are seeking asylum on their own. But we also see quite considerable populations from other places. In the U.S., Latin American and Central American children are the majority of children who cross the border alone. And these children are no longer really fleeing civil wars as would have been the case in the 80s and 90s. Rather, they're fleeing all sorts of persecutions that are more specific to children, so, for example, we have quite a large population of children fleeing child abuse, we have children who are fleeing persecution by gangs, children, girls in particular who are fleeing different types of domestic violence. So, it's not just war-torn zones that produce this population of children.

And children flee generally to neighboring countries of course but we also see a large population of children who are crossing the world. I myself have dealt with and also written about many cases of children who flee from India or China and make their way to Europe or the United States. So these are children who are undertaking quite considerable journeys on their own.

Q: Why have the distinctive problems facing separated child asylum seekers recently come to the forefront of asylum policy discussions in several countries and regions?

Bhabha: I think there are probably three reasons for this. Firstly, we are more aware of children's rights and rights violations against children than we used to be. We now have an international convention called the international convention on the rights of the child which focuses specifically on children's rights, so I think the first point is that there is generally more of a sense of obligation and awareness towards children's issues.

Secondly, I think, that as a policy matter, there have been quite significant populations of unaccompanied or separated children who have found their way into our immigration systems and have created problems. So, policy makers, advocates, judges, have found themselves confronting children who are unattached to families, so this is really created challenges-legal challenges and policy challenges.

And I think, thirdly, there is now a sense that we need to focus on child-specific persecution as an aspect of international law which we've neglected. It relates really to the first point, about an interest in children's rights, but this is a more specific point which is that just as there's been an awareness that women have particular human rights violations which they need to be protected from, so there is an increasing awareness that children have specific human rights violations. So we are trying to develop this concept of child-specific persecution to encompass the harms that these children are fleeing.

Q: How effective are existing legal mechanisms that seek to protect child asylum seekers? What gaps in protection need to be addressed, and how?

Bhabha: This has really been the focus of our two year research project. Our conclusions in our research are that current mechanisms aren't very effective. A lot more needs to be done to give children the protection that they need.

Firstly, why are current mechanisms not effective? Our argument is that children were never the focus of protective legislation so they tend to be forgotten. One assumption is that children are always part of a family, and another assumption is that children really are not political and so they're not the objects of persecution in the way that adults are.

The idea is, therefore, that children can't be refugees on their own basis. We see this in the fact that, paradoxically, children are sometimes treated worse, not better, than adults. Their cases drag on for longer, there are no clear policy outcomes. In some situations, children may be in detention for long periods of time simply because policy makers don't know what to do with them.

One of our most interesting findings is that, paradoxically, children are not the objects of more protection-which is what we would think because we think of children as vulnerable or needy-but rather they may be the objects of more animosity or hostility. Think about the approach to street children. We've all read about children in Guatemala or Brazil who are shot at and who are homeless, sleeping in squares. It's that sort of phenomenon, the idea that children who are unattached to families are dangerous, are threatening, are probably criminals. We found this in our research, too, that children who are seeking asylum, far from being the objects of more compassionate concern, were actually the targets of more aggressive intervention.

In terms of what are the gaps and how can we fill them, what we propose in our research findings are several matters. We argue that children should be entitled to state-funded legal representation. Many people are shocked at the idea that children in the U.S., for example, are not eligible for representation automatically. They're expected to find their way through the maze of complicated legal provisions on their own. Or, if they're lucky, to get pro bono representation through NGOs or other mechanisms. So, our first claim is that the gap of legal representation is serious and urgent and needs to be addressed.

Secondly, we think that children who are unaccompanied or separated-and the distinction here is between children who are completely alone or children who may be in the company of someone, like a sibling or a co-villager, but who are actually separated from their parents-we argue these children should have a guardian-like figure appointed in loco parentis, somebody who has responsibility for helping them, not only with their legal problems but with their welfare and adjustment problems, somebody who helps them find accommodation and schooling and social protection of various other sorts. We argue that this mentoring or guardian-like role is critically important and needs to be added to our current system of protection.

Thirdly, we have some very specific concerns about current policy. In the U.S. context, we argue that children should never be detained unless there is some exceptional reason for detaining them. Unfortunately at the moment this is not the case and quite significant numbers of children are detained. We also argue that children should never, ever, in any circumstance be shackled or handcuffed when they are applying for asylum or during immigration proceedings. These are not children who are charged with criminal offending so we see no justification at all for the use of handcuffs and shackles. And again, this is something which people who don't work in our field are quite shocked to find out about.

Lastly, we argue that the law should be improved so that children are not discriminated against in their access to family unification. Mostly, refugees who get refugee status are entitled to bring their immediate family to join them. So if a man or a woman gets refugee status, he or she can bring their spouse and their minor children from a refugee camp, or wherever they may be, to join them. Often this is not the case for children because, again, we argue that there is an adult-centered approach. The idea is that your family are your spouse and children. But of course for children, family are their parents or their siblings, so we argue this is something again which needs to be looked at and rectified. These are some of the gaps that we hope will be filled or at least addressed as the result of the publication of our findings.

Q: Is it easier for separated children to gain asylum than adults? How are threats facing child asylum seekers-such as child abuse, child selling, or child trafficking-perceived as 'grounds' for protection as compared to the more traditionally defined threats to adults of persecution because of race, religion, nationality, social group, or political opinion?

Bhabha: In answer to the first part of your question, the general answer is no. In some countries, it's not harder, it's more or less the same for children and adults. In Canada for example from the statistics we've been able to study, the success rates for asylum applications for children compare, more or less, with the success rates for adults. In other countries, like in the UK for example, there is a dramatic difference in success rates. Children are much, much less likely to get asylum in the UK than are adults. The reason for this is that nearly all children who apply for asylum in the UK, however compelling their case, get a sort of humanitarian leave status which prevents them from being sent back to their country, but only until they're 18. So one of the things that we argue very strongly in our UK report is that this anomaly needs to be rectified and that it's quite unfair that children who have well-founded fears-and therefore are within the definition of a refugee-should only be getting a status which lasts until they're 18.

In the U.S., the situation is complicated partly by the fact that there are no good statistics at all. One of the things that we're most critical of in our U.S.-based research is the extraordinary dereliction of duty, as we see it, by the immigration authorities to maintain adequate statistics on child asylum seekers. For example, the executive office of immigration review, which is the body responsible for the immigration courts, maintains no data at all on date of birth of people who come before the court, so we have no way of telling how many children are applying for asylum in immigration court. We say this is unacceptable and really an illustration of the lack of serous concern about the issue. So it's very difficult to say how the U.S. rates between adults and children compare. But our sense is, again, that large numbers of children who should be getting refugee protection are simply not finding their way through the system because of the lack of adequate representation.

The second part of your question is about the grounds and the extent to which child-specific persecution manages to fit within the traditional grounds for refugee status in the convention-the international convention on the status of refugees which has been transcribed into domestic law in the U.S., contains five grounds on the basis of which someone can obtain refugee status. So if you can show that you have 'a well-founded fear of persecution' because of your race, your religion, your nationality, your political opinion or your membership in a particular social group, you may be eligible for refugee protection. Children don't always fit in those categories, partly because some judges and policy makers assume that children are not political or that they couldn't be the targets of political hostility because they're not important enough, despite a lot of evidence to the contrary.

In some situations, the harms that are that are the basis for the asylum applications simply don't immediately seem to fit one of those five grounds. So a lot of our work has been to argue that child abuse for example-being subjected to brutality or beating, or being a child who is at risk of gang violence-that these should constitute particular social groups for the purposes of the refugee definition. We also argue that many children's activities-you think, for example, of the Intifada and of Palestinian children throwing stones, or of Haitian children involved in the opposition to the Tonton Macoute in the old days-or if you think of many recent types of political rebellion, you see children very closely involved. So we also argue that the political activity of children needs to be taken more seriously.

Q: Any final comments?

Bhabha: I think that in the U.S. at the moment immigration is of course a very hot button topic. It's an interesting and very lively debate which has strange bedfellows. We find people on opposite sides of the political spectrum working together on issues. One of the things that my colleagues and I very much hope is that, in this window of national self-reflection about who we are and who has a right or a claim to stay in the U.S., we hope very much that the perspective of children will be included. We hope that for once they won't slip though the cracks so that the quite egregious rights violations that we have uncovered will be addressed. We think that this should be possible because, if ever there was a strong case for protection and for inclusion, we think that the children who come to this country, and to other countries, to seek asylum, should be able to make that case.

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