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5.6.6. Future perspectives for applicant children: Transitioning into adulthood and issues with residence permits

5.6.6. Future perspectives for applicant children: Transitioning into adulthood and issues with residence permits
 

icon presenting Future perspectives for applicant children: transitioning into adulthood and issues with residence permits

In order to ensure continued support after reaching the age of 18, a new strategy was being developed in Belgium to extend the pathway designed for unaccompanied children with an additional stage for young adults aged 18-21 years. The IOM launched a new programme in Cyprus to facilitate this transition through semi-independent housing and adapted support for education, vocational training and health care.1464
 
A Royal Decree facilitated the process of granting residence and work permits for unaccompanied youth in Spain, helping them transition into adulthood (see Section 4.14). 

In Italy, courts deliberated on granting humanitarian status to applicants who arrived as minors but became adults during the asylum procedure. In one case, the court argued that the violence the applicant had suffered as a child during his journey to Italy should have been a relevant fact for assessing humanitarian protection. In another case, the applicant’s high level of integration was considered to be a determining factor to note that refusing to renew his residence permit based on humanitarian considerations would be in breach of his right to private and family life.

The Swedish Migration Agency updated its legal position on assessing the best interests of the child,1465  following the judgment of the Migration Court of Appeal in 2020 which concluded that the expulsion of a 14-year-old child, born and raised in Sweden, would be contrary to the ECHR, Article 8. Her best interests outweighed the circumstances for not granting residence permits to her and her parents.1466

The Administrative Tribunal in Luxembourg referred a question to the CJEU for a preliminary ruling in the case of a child whose parents were granted international protection in Greece but an asylum application had not been submitted for the child as he was born in Greece. The parents moved to Luxembourg, re-applied for asylum and argued that the child should be considered as an applicant and not as a beneficiary of international protection. 

The status of children born after the recognition of their parents was analysed in France by the CNDA as well. Children of a beneficiary of subsidiary protection, born after the parent was granted protection, requested international protection from OFPRA but their application was rejected. The CNDA underlined that based on the best interests of the child, they should be able to enjoy the same protection as the parent, and granted the children subsidiary protection as a derivative right.

The CNDA overturned OFPRA’s decision in another case when the applicant’s fears to return to his country of origin after leaving a long time ago and significant changes in the political environment did not appear to be justified, but his enlistment as a child soldier at the age of 12 and the exceptional gravity of threats and ill treatment he suffered could justify his refusal to claim protection from the authorities in the country of origin.

As an impact of the CJEU judgment in TQ (see Section 2), the return of unaccompanied minors was suspended in the Netherlands until an examination determines if they would receive adequate reception and care in the country of origin. The Dutch State Secretary for Justice and Security requested the Dutch Research and Documentation Centre (WODC) to analyse the situation of unaccompanied minors travelling from one Member State to another throughout Europe and deliver recommendations to prevent this pattern. The State Secretary noted that children may leave the reception facility to an unknown destination when they have no prospects of receiving international protection.1467
 
Earlier in 2021, the WODC published a report on the contradictions and gaps between youth protection law and foreigners’ law. The report investigated two situations:  the supervision policy framework (so-called OTS framework applied for example when a child from a family who is unlawfully present on the territory is taken into care) and the return procedure of unaccompanied minors.1468

The UN Human Rights Committee (CCPR) found that a boy and his younger brother would face a real, personal and foreseeable risk if returned to Afghanistan, and the Swedish authorities failed to properly examine their father’s abusive behaviour and threats of revenge. The committee also found several violations in the case of a boy and his mother, who were granted subsidiary protection in Bulgaria, but they then moved to Switzerland to reapply for asylum and were ordered to return to Bulgaria by the Swiss authorities. The child was not heard during the asylum procedure and the authorities failed to verify whether the stateless child would have access to nationality in Bulgaria.

Following the decision of the UN Committee on the Rights of the Child in 2020, the Danish Refugee Appeals Board obtained additional information as required and maintained its decision to return a mother and her three children to China. The Ministry of Foreign Affairs confirmed that the children’s Danish birth certificates will be recognised by the Chinese authorities and that their parents can apply for "Confirmation that the Relevant Person Does not have the Overseas Chinese Status", as they did not obtain a residence permit in Denmark. The board also underlined that the children were not at risk of persecution, as both parents are registered in the Hukou register and will not have less favourable treatment.