Breaking down barriers to reception rights for unaccompanied migrant children in Europe: Does intersectional discrimination matter?

Raissian, Claire
Introduction ‘States should ensure that children in the context of international migration are treated first and foremost as children’ 1 Although the exact number cannot be known, recent figures indicate that there are approximately 36.5 million children on the move internationally, with at least 300,000 unaccompanied children estimated to have moved across borders globally in 2021.2 Many have been forced to flee brutal and protracted conflict, the effects of the climate crisis, or from persecution arising from civil wars or gang violence.3 While some will seek asylum, many others will not.4 Whatever the reason for their migration, unaccompanied children on the move in the context of international migration remain inherently vulnerable to harm and violence.5 Where smugglers are relied upon to transport them to Europe, such children are more likely to experience violence or exploitation, or to fall into the hands of human traffickers on the way.6 Now, without any government to protect them and limited recourse to rights, they must rely on the political will of receiving states and foreign governments to operationalise their rights, as set down in international human rights law and policy, most notably in the Convention on the Rights of the Child.7 The almost universally ratified CRC sets a baseline for the age of a child in its Article 1, as ‘every human being below the age of eighteen years’, while Article 2(1) CRC stipulates that States Parties ‘shall respect and ensure the rights set forth […] to each child within their jurisdiction’, irrespective of migration status.8 However, while unaccompanied children are recognised in Europe as rights-bearers in international, regional and domestic law, discriminatory barriers to rights are frequently erected by receiving states. Actions by states may include the physical exclusion of children from the territory of the state, or a refusal to recognise an adolescent as a child, in order to deprive them of their rights under the CRC and other legal instruments. Unaccompanied children who are correctly identified as such are frequently ‘left to languish’ in dire conditions in reception facilities across the region, that violate the prohibition on torture and inhuman or degrading treatment under Article 3 of the European Convention on Human Rights.9 It will be seen that, while the actions of states in the treatment of this group constitute de facto breaches of Article 2(1) CRC and other discrimination norms, the constraints inherent in a ‘traditional’ legal analysis of discrimination means that complaints of discrimination are rarely made by unaccompanied children.
NUI Galway
Publisher DOI
Attribution-NonCommercial-NoDerivs 3.0 Ireland