“Then I was enclosed in a small room... I could see faces of other young people in their own cells. We had a place to sleep, a cell, very hot, it had a toilet. My heart started to race in the room. I was worried. I didn’t know what was going to happen to me.”

These are the reminiscences of a seventeen-year-old boy who fled gang violence in El Salvador and came to seek protection in the United States, only to find himself in a detention center in Texas. His experience, along with those of the thousands of other children who cross borders unaccompanied or separated from their families in search of protection, is an indictment of a system of immigration control dominated by exclusionary concerns at the expense of human rights obligations. Stories such as the one above, of children in distress, withdrawn into deep depression, or paralyzed by acute anxiety, are commonplace.

Who are these children? What precipitates their condition, and what measures would improve these children’s access to meaningful and enduring protection? What legal obligations (both domestic and international) do states have to them? These questions motivated a two-year international research project - Seeking Asylum Alone - into the law, practice, and procedure governing access to refugee protection for unaccompanied and separated children. The study compared the circumstances in three developed destination states, the United States, the United Kingdom, and Australia, all countries where large numbers of unaccompanied children have arrived in recent years and where considerable legal and practical problems have arisen. This article provides a brief overview of the study’s findings: it investigates the protection deficit underlying access to child asylum, suggests some explanations for this deficit, and briefly suggests necessary reforms to enhance children’s rights in this context.

The Protection Deficit

In their seminal 1988 work on unaccompanied children, Ressler, Boothby, and Steinbock make the obvious point that wars, famines, and natural disasters have almost always resulted in children being separated from their families. Nothing much has changed since then. According to UNICEF, by the end of the Rwandan Genocide, over 100,000 children had been separated from their families; the conflicts in Yugoslavia, Afghanistan, Liberia, Sierra Leone, the Democratic Republic of Congo, Iraq, Iran, and Sudan have produced the same tragic legacy. Children seek refuge not just because they are separated from their families, but also because they are targeted by both intra- and inter-state violence. Worldwide increases in trafficking, global labor exploitation, and, more generally, family disruption contribute to the swelling ranks of unaccompanied and separated child migrants. But other factors are also at play. Some children flee abuse meted out to them by their families or communities, either in the form of child abuse, gang warfare, or unacceptable cultural norms. Thus, while some of the factors causing children to flee are common to adults, others are specific to children. Both categories of harm should provide the basis for successful asylum claims for affected children. In practice, however, neither does provide the basis for action.

This protection deficit arises despite the existing legal framework. There are international legal norms (translated into domestic laws) promoting refugee protection, the prohibition on torture or degrading treatment, and the enhancement of children’s rights. Asylum-seeking children can in theory benefit from the three central bodies of international law, which are refugee law, international human rights law, and laws of war. For example, the definition of a refugee in international law, set out in Article 1 of the 1951 UN Convention on the Status of Refugees, does not include any minimum age threshold, such that children are also included. States that have ratified the 1989 Convention on the Rights of the Child (all the UN member states except for the United States and Somalia) are obliged to specifically focus on states’ obligations to adopt “the best interests of the child” as a primary consideration in relevant policy. Many other international treaties, such as the 1966 International Covenant on Civil and Political Rights and the 1984 Convention Against Torture, include children within the overall scope of their jurisdiction and include measures that bear on states’ responsibilities towards child asylum-seekers (examples include the non-refoulement obligation and the duty to respect and protect family unity).

The real reasons for the disturbing and systematic protection deficit at the heart of the immigration systems of most destination states is a product of the political marginality of children, their lack of bargaining power, and their exclusion from decision-making processes. Correcting the deficit requires adequately understanding and addressing its causes. Scholars and child advocates, and of course children themselves, have long described and protested the skewed, adult-centered approach to social decision-making, resource allocation, and rights protection that render children’s interests peripheral at best. But the normal exclusion of children as a voiceless group within polities, even in advanced and self-proclaimed democracies, is compounded in the case of unaccompanied and separated migrant children by two aggravating circumstances – their non-citizen status and their lack of access to parental or other protective adult involvement. These migrant children thus labor under the triple burden of alienation, isolation, and minority status.

One of the starkest examples of the tension between state law enforcement mandates and a children's rights perspective is found in the asylum system. It is here that children regularly face insuperable hurdles and rights-violating procedures. Far from receiving compassionate or protective state intervention, many migrant children encounter punitive and degrading measures that cast them as delinquents and “urchins,” rather than as particularly vulnerable refugees.

Procedure and Protocol

Unsatisfactory procedures are neither new nor numerically insignificant. The United Nations High Commissioner for Refugees (UNHCR), the leading international agency charged with oversight of the protection of refugees and asylum seekers worldwide, as well as scholars and government officials, accept that unaccompanied or separated child migrants constitute between four and five percent of all asylum-seekers arriving in destination states. The majority are boys, and adolescents predominate over younger children. In 2003, 12,800 unaccompanied and separated children applied for asylum in the 28 European countries for which the UNHCR collected statistics. In that year, out of 49,405 asylum seekers in the UK, 3,180 were children. No comparable figures are available for the United States; but in 2004, the US Office of Refugee Resettlement received referrals of 6,200 unaccompanied and separated children. One of the key difficulties of developing and monitoring policy and improving practice in this area is the lack of governmental records.