HUMAN RIGHTS AND INTERNATIONAL PROTECTION FOR VULNERABLE ASYLUM APPLICANTS

– PART 1 –

The Portuguese asylum application process
for the unaccompanied minors

Venetikidou Aikaterini

Abstract

Portugal is one of the countries that very early on the refugee crisis has taken great initiatives to welcome and provide protection to unaccompanied minors. Enriched appropriate and protective measures have been added in its legislative framework on the asylum application procedures with its latest revision in 2014. Thus, the research focuses on two main axes; the provision of an overview of the national legal framework and the review of the challenges of its implementation. More specifically, the first part of the research focuses on the review of related literature, which includes past studies conducted in Portugal and an overview of the legislation for the asylum procedure for unaccompanied minors. In addition, this part demonstrates significant events that took place during the period this research was conducted and are interconnected to this vulnerable group. The second part of the research consists of an empirical case study of the challenges and the good practices during the asylum application process for unaccompanied minors derived from testimonies by professionals at the only Reception Home for Refugee Children (Casa de Acolhimento para Crianças Refugiadas - CACR) specifically designed for asylum-seeking children in Portugal. Lack of birth records, identification or residence documents and their dubious authenticity are some of the main challenges that unaccompanied minors face during the asylum procedure in the country. Based on the challenges emerged from the case study, relevant recommendations are explored at the end of the second part of the research.

1. Introduction

Within a five-years’ time, thousands of refugees and migrants have reached the EU by sea through Greece, Italy and Spain or by land through the borders, a number

that has progressed rapidly ever since 2015. The latest UNHCR’s Report demonstrates that 32,500 refugees and migrants arrived at the Iberian Peninsula during the last trimester of 2019, originating primarily from Morocco, Guinea, Algeria, Mali, Côte d'Ivoire and Senegal. According to Eurostat, 17.675 unaccompanied children claimed asylum in 2019.

In Portugal, during 2019, the number of asylum seekers reached the total of 1.849, out of which, 195 were granted the Refugee Status and 55 were unaccompanied minors. The most common nationalities included African countries such as Guinea-Bissau, Gambia and Senegal, and the average age of the unaccompanied minors was between 16 to 17 years old. Furthermore, according to AIDA, a total of 103 unaccompanied minors, including those absconded and those that were later determined to be adults were accommodated by CPR. Portugal’s response to the asylum procedures for unaccompanied minors has been described as exemplary, taking into consideration though the relatively low number of incoming minors so far, which makes it manageable for the national organizations and service authorities. The Portuguese Aliens and Borders Service (Serviço de Estrangeiros e Fronteiras - SEF), however, reports that the biggest issues with minor asylum applicants is usually the lack of birth records, the lack of identification or residence documents and their dubious authenticity. In the first part, the theoretical framework of the research is established. The theoretical framework zooms in unaccompanied children in the context of Portugal. Moreover, events related to UAM (Unaccompanied asylum-seeking minors) that occurred during the conduction of this study are also explored in this part. The second part of the research examines the international, European and national legislation, focusing on the most notable legal provisions related to unaccompanied minors. The objectives, the main questions of the research, the methodology and the sample are all demonstrated in depth in this section. Finally, the last part of the research consists of the results derived from interviews with professionals in an attempt to identify the challenges in the implementation of the legal framework, as well the relevant discussion. Conclusions, limitations and recommendations for further research are discussed at the end of this section.

2. Theoretical Framework

2.1. Unaccompanied minors and Asylum

Children are fully entitled to all human/fundamental rights, as well as they are subject to special legislation, due to their specific characteristics and vulnerability. However, it was not until the end of the 19th century that those rights were declared and recognized followed by the UN Convention on the Rights of the Child in 1989. Until that point, children were considered as “property” of their parents and were fully involved in labour as they were not considered as vulnerable and incapable of making decisions of their own regarding their best interests.

The UN’s Convention on the Rights of the Child in 1989 sets a new framework that was developed specifically aiming to highlight the primacy of the best interests of the child. The child is recognized as the holder of his/her human rights which do not derive from or depend on the rights of parents or any other adults. It is no wonder that the traumas suffered during childhood lead to more complex and devasting consequences than those in adulthood due to the difference of maturity and emotional development. Let alone in the case of separated and unaccompanied children (UAM) who reach the border of a foreign country. Nowadays, the tough reality and the special needs of refugee children represent one of the greatest concerns of contemporary society, especially after the commence of the refugee crisis in 2015. Every year, thousands flee away from their countries, separated from their families, as victims or at risk of exploitation and abuse.

The Convention of Geneva in 1951 defines in Article 1(a)(2) the concept of refugee as a person who has been “[…] persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” As there are no special provisions on the recognition of refugee status for minors, presumably the aforementioned definition applies to all individuals regardless of age. Given that, the UNHCR has established substantive and procedural guidelines to carry out refugee status determination as far as minor are concerned.

Unaccompanied or not, every child has the right to submit an independent application to be granted the refugee status. UAM make part of the vulnerable refugee group as instructed by UNHCR , thus, they shall not be refused entry upon their arrival in national territory and are entitled to certain guarantees. These instructions have been adopted by both European and Portuguese Legal Frameworks and incorporated in the relevant legislation regarding asylum.

2.2. Studies on the Asylum Procedure for UAM in Portugal

The existing literature in Portugal is quite limited as far as the implementation of the asylum processes for UAM is concerned. However, it is worth mentioning some of the findings of Portuguese researchers on the implications of certain asylum processes, such as the age assessment, the psychological health of the UAM as well as their integration overall. To start with, Rosa’s study presents the negative impact of fleeing on the unaccompanied minors’ psychological and emotional health, based on interviews with social workers in Portugal and France. Rosa underlines that the time-consuming procedures and their complexity sometimes can lead the young minors to depression or even having suicidal intentions. His research demonstrates that the UAM are being constantly transferred from one structure to another and are lost in frequent trips between the court and administrative services without immediate results but are left with a loss of motivation to carry on. Moreover, Rosa discusses the fact that the scarcity in capacity of the reception centres is a big issue, stressing out the CACR (Casa de Acolhimento para Crianças Refugiadas) being the only reception centre especially designated for asylum seeking UAM.

Texeira’s study focuses on the question of the age assessment examinations and highlights the necessity from the reception countries to develop a concrete age determination system that respects the child and contributes to its best interests. More specifically, Texeira discusses the implications of the “questionable methods of age assessment” applied and how these intrude the fundamental human rights of UAM. Texeira zooms in Portugal by stating that the methods applied for the determination of the age of the UAM usually include hand, wrist and denture radiography. He mentions that in Portugal the age determination solely depends on the results of these

medical exams. Texeira refers to specific cases that reached the European Court of Human Rights (ETCHR) as the false age determination from poor and non-scholastic age assessment methods led to unaccompanied minors be denied reunification with their families or encounter delays in the process because their cases were considered dubious. Texeira concludes that the lack of a common age assessment strategy and method is the result of the implications and the false conclusions for the UAM that result in the prolongment of the separation from their families or the deprivation of foster care and guarantees for minors.

Another research by Santinho demonstrates how the UAM experience the asylum process in Portugal based on some interviews she conducted directly with them. One of the testimonies concerned a minor whose Asylum Claim Declaration document has been renovated every two months for three years instead of his case being processed. Santinho states that the minor after having been waiting all this time, he decided to board a truck and pass the boarders, hoping to make it to Germany where, according to him, lived part of his family. The frustration of the long waiting in Portugal for the asylum procedure seems to concern the majority of young unaccompanied asylum seekers based on Santinho. Santinho quotes the words of another interviewed minor “First they accept us, then they reject us. They only make life difficult for us. They don’t even understand what it means to be a refugee...”. Further, Santinho states that another issue encountered during her research is the presentation of false identification documents and narratives from the applicants’ side. She stresses that the real reasons for the departure and the arrival in a reception country are not always linear, leading the applicant to have to adapt or change his/her narrative according to the circumstances of the country where he/she was received. The same research discusses the issue of the detention of UAM in the airport, the experience of which is represented through the lenses of an interviewed female minor that quotes “Portugal is just a waiting room in a huge airport”. Last but not least, Santinho’s research highlights how important is to the UAM to re-establish the sense of a family during their integration in Portugal as the majority of the interviews young asylum seekers mentioned that as they share the same dialect or origin, they already consider themselves as brothers and support each other psychologically throughout the challenging procedure of asylum.

3. Legal Framework

3.1. Unaccompanied Minors in Portugal

The Portuguese Refugee Council (Conselho Português para os Refugiados - CPR) is the national entity accountable for providing foster care to unaccompanied minors at the Reception Home for Refugee Children (Casa de Acolhimento para Crianças Refugiadas - CACR), as well as identifying asylum-seeking children in Portugal. According to Estoura & Roberto (2019), the CACR is the only reception establishment in Portugal exclusively targeted to house asylum-seeking unaccompanied minors solely as the Asylum Law foresees. Children who are identified as unaccompanied minors are described by the Asylum Act as: “third-country nationals or stateless persons aged less than 18 years who enter national territory without being accompanied by an adult who, by law or custom, is responsible for them, provided they have not been effectively taken into the charge of such a person, or who have been abandoned after having entered national territory.” Article 2 of the Asylum Act 26/2014, apart from defining the term ‘unaccompanied minors’, explains the terms ‘particularly vulnerable people’ and ‘representative’ which are interconnected to unaccompanied minors. Moreover, Article 26 of the very same Asylum Act highlights that: “Temporary accommodation for unaccompanied or separated minors is subject to special conditions, pursuant to terms recommended internationally, namely by the UNHCR, UNICEF and the International Committee of the Red Cross”.

Furthermore, Article 79 of the Asylum Act 26/2014, appoints the SEF as the body responsible for reporting to the competent court any application submitted by a minor and to conduct the asylum process overall. The Family and Juvenile Court (Tribunal de Família e Menores) is responsible for coping with the care procedures upon the unaccompanied minor’s arrival in the country. Estoura & Roberto (2019) add that between the asylum and foster care procedures, the only connection is the way in which they are introduced and the information exchanged regarding the child identification or age. It is clarified that a refusal to asylum or withdrawal of foster care does not affect the other procedure as they are based on different criteria. The following example from Estoura & Roberto’s (2019) paper clarifies exactly the previous condition; in the event that an applicant is proved by the age assessment procedure not to be a child, then foster care is suspended, however, that shall not interfere with the asylum application process.

Meanwhile, in the event that an applicant is denied asylum that does not entrain the cessation of foster care as the child’s best interest is the priority in that case and other types of documentation shall be examined. In Portugal, compared to other European Union countries, the representation of unaccompanied minors in the group of asylum seekers is not very demonstrative. According to Estoura & Roberto (2019), between the years 2008 and 2012, about seven unaccompanied minors applied for asylum each year in Portugal. Since 2008, it is no surprise that the highest numbers have been recorded between 2013 and 2015, as CACR was inaugurated in May of 2012. During 2012-2019 based on statistical data published by the SEF, the CPR and the Asylum Information Database - AIDAit is evident that SEF and CPR’s information differ; last year alone, 2019, CPR reported 78 unaccompanied minors, while the SEF’s data for the same year declare just 55. AIDA (2019) attributes this distinction to the fact that the SEF and the CPR apply different identification criteria and age assessment procedures. Moreover, different registration practices may also contribute to this. At this point, it is also worth mentioning CPR’s data concerning the number of unaccompanied minors that proved to be adults following the age assessment procedure. Though unfortunately, corresponding data isn’t available for all the aforementioned

years between 2012-2019, AIDA reports that 27 out of the 67 declared unaccompanied children who applied for asylum in 2018, were later determined to be adults, and 7 out of 78 in 2019. As mentioned earlier in this section, the CACR is the only reception centre for asylum-seeking children in Portugal. Last year alone, the CACR accommodated a total of 78 unaccompanied minors, a number that surpasses its low capacity which stands at 13 places. Thus, as of 2019, the CPR revised its accommodation policy for unaccompanied children and coped with the shortage at CACR by housing temporarily some children at the Centre for Refugees (Centro de Acolhimento para Refugiados - CAR), while some other young applicants at more advanced stages of the integration process were transferred from the CACR to Centre for Refugees II (Centro de Acolhimento para Refugiados II - CAR II) in a process of supervised autonomy (autonomia de vida) (AIDA, 2019). The statistics on the demographic data specifically for the unaccompanied minors is not clearly provided by neither the SEF nor the CPR. However, the CPR provides a few data regarding the nationalities, gender, ages and literacy in its annual reports. From a holistic overview of that data, the following conclusions have been made:

• The majority of the unaccompanied minors admitted at CACR are of African origin from countries including mainly Guinea-Conakry, the Republic of Congo and Guinea-Bissau. Asian is the second most encountered origin with children coming mainly from Afghanistan.

• Male unaccompanied minors are significantly a lot more than females; as of 2018, that ratio was 80% and 20% accordingly.

Furthermore, the lack of statistical data on the level of literacy of unaccompanied minors does not allow a clear picture of that matter. However, based on information by the CPR’s report in 2017, there was a wide range from illiterate to elementary and secondary education. In that year, it should be noted that there was a young man who was granted a scholarship and commenced his studies at university. The CPR’s 2018 report states that upon arrival in Portugal, 16.92% of the unaccompanied children had never attended school, 41.54% had to leave school early (21.54% was between 1st and 4th grade and 20% had completed 5th or 6th grade), 20% was between 7th and 9th grade, 20% had attended secondary education and 1.54% higher education.

Another interesting factor that is worth including in this section is the rate of abscondment of the unaccompanied minors from the CACR with the highest percentage

being recorded last year at 28% based on data found for the years 2016-2019. In 2017, 3 out of a total of 8 absconded children, returned at CACR voluntarily. In the AIDA’s report in 2017, it is stated that the CPR has received criticism and complaints regarding the undoubtedly low financial allowance given to asylum seekers of all stages. The anxiety caused by the struggle to make a decent living may be a contributing factor to the high level of abscondment.

Other contributing factors to this high level of absconding might be related to the duration of the asylum procedure. In case a regular asylum procedure is applied the final decision is made within 6 to 9 months depending on the complexity of the situation. In the meantime, the applicants are given a Temporary Residence Permit with a duration of 6 months. In addition, the CPR reported that the average stay of an unaccompanied child accommodated at CACR is approximately 7,3 months, though it is not specified whether that average includes children who eventually absconded. Moreover, reports demonstrate a manifestly low number of unaccompanied children who have been granted the victim status due to trafficking, violence or torture. In fact, just one child in 2017 was granted the victim status and got transferred to a specialized for victims of trafficking centre, while, the CPR has referenced a great number of suspicious cases to the National Anti-Trafficking Observatory (Unidade Anti tráfico de Pessoas).

Furthermore, the UN Committee Against Tortureurged Portugal to fortify the mechanisms for the identification of victims of torture among asylum seekers and suggested that Portugal: “(a) Intensify its efforts to prevent and combat trafficking in persons, including by putting in place effective procedures for the identification and referral of victims among vulnerable groups, such as asylum seekers and irregular migrants; (b) Improve the training of law enforcement officers and other first responders by including statutory training on the identification of potential victims of trafficking in persons; (c) Ensure access to adequate protection and support, including temporary residence permits, irrespective of their ability to cooperate in legal proceedings against traffickers.” As far as the discrepancy in the identification and the allocation of guarantees for vulnerable

asylum seekers such as unaccompanied children and victims of torture and trafficking is concerned, the UN Committee on the Rights of the Child also expressed concerns and suggested that Portugal develops mechanisms that ensure the victims receive the care and protection they are entitled to by law. According to CACR coordinator‘s statement ”very often minors do not acknowledge they are being exploited. This is also cultural, as it is common in African countries, where the majority of the UAM [at CACR] come from, to exchange work of any kind for housing and food as a respect to the person who provides those”.

3.2. Research Context: Relocation Programme of unaccompanied children from Greece

As of March 17th 2020, the EU Agency for Fundamental Rights (FRA) invited the Member States to participate in the relocation programme of 1,600 unaccompanied children from Greece. FRA conducted relevant interviews in 10 Member States which included: Belgium, Finland, France, Germany, Greece, Ireland, Italy, Malta, the Netherlands and Portugal. Moreover, FRA encouraged the Member States to decide as soon as possible on clear and realistic procedures, in order to avoid the lack of clarification and delays in the relocation process. This is not the first time that the Council of Europe (COE) has prompted the relocation of asylum seekers. Within the biennium period 2015-2017, COE initiated a European Emergency Relocation Mechanism for relocation to support Italy and Greece as a result of the large number of incoming asylum seekers between 2014 and 2015. Nearly 35,000 unaccompanied children were successfully relocated to 22 EU Member States, excluding UK and Denmark which decided not to participate. Other smaller scale binational transfers were performed between Ireland and France and Italy, as well as Greece and Portugal.

By April 2020, Portugal expressed interest to get involved in the relocation Programme. This is not the first time Portugal takes action in the relocation of UAM. In 2017, Portugal received a total of 533 unaccompanied minors from both Italy and Greece. Ms. Isabel Santos, the Portuguese representative Member of the European Parliament, announced, as of May 9th 2020 during a video-conference regarding Europe Day 2020, that Portugal would take in about 50 to 60 minors, without clarifying the exact date. On May 12th, the Minister of Foreign Affairs, Mr. Augusto Santos Silva, committed to receiving up to 500 unaccompanied minors from Greece as soon as movement restrictions due to the outbreak of the pandemic COVID-19 are lifted.

During a hearing by the Committee on Constitutional Affairs, Rights, Freedoms and Guarantees, the Minister of State and Presidency, Ms. Mariana Vieira da Silva, stated that the reception of the first 50 children will be provided by the Portuguese Red Cross (Cruz Vermelha Portuguesa) and the first group of 25 children will arrive within the first half of June. The Minister underlined that the initial response consists of a temporary reception, between three to six months, during which initial intervention and necessary support will be provided to the unaccompanied children. Then, there will be a referral adequate to the children’s profiles, expectations and age. As of June 16th 2020, the latest update on this very topic, the Minister for Internal Administration, Mr. Eduardo Cabrita, talked about the conditions of the arrival of the first 25 unaccompanied children from the Greek islands. The Minister said that the responsibilities between the CPR and the Social Security (Segurança Social) will be reclarified and that, during the pandemic, the state took the opportunity of the decreased traffic at the airport to make rearrangements to the construction of the Temporary Installation Centre at Lisbon Airport (Centro de Instalação Temporária do Aeroporto de Lisboa - CIT). The works have been concluded and are ready to open exclusively to receive the asylum seekers on July 1st - the day when flights from third countries will restart.

The rearrangements include designated rooms for families, divided spaces for men and women and video-supervision in each space. The Minister underlined that any arrangements in the installation were made in agreement with the juridical bar association.

4. Asylum Application Process for Unaccompanied Minors

4.1. Guidance by International Organizations and EU Agencies

• UNHCR, A guide to international refugee protection and building state asylum systems, 2017

The UNHCR Guide to international refugee protection (2017) summarizes the most important points of International Conventions regarding the standards of the procedures of asylum grant. According to the guide, unaccompanied or separated children should be considered at heightened risk and therefore be prioritized in any procedure and immediately be appointed with a guardian or advisor.

The establishment and implementation of the procedures related to unaccompanied minors shall be ensuring that the child can enjoy their rights without discriminations. The best interests of a child should be thoroughly assessed and determined through appropriately designated procedures. A secure environment and accommodation arrangements shall be provided to unaccompanied children while durable solutions should be supported by the asylum systems. Moreover, the responsibilities towards unaccompanied children include the development of child and gender-sensitive asylum systems to address their particular needs, as well as their registration and provision with their individual documentation that consists of their status to highlight the importance for their protection. Last but not least, the guide stresses out that age assessment exams should be carried out in a fair, child- and gender-sensitive way respecting human dignity.

• UNHCR, Guidelines on Assessing and determining the best interests of the child, 2018

On the assessment and determination of the best interests of the child, UNHCR, has recently realised a handbook of guidelines in 2018. This guide pinpoints that any strategy followed should ensure that the main objective of the Best Interest Determination (BID) is targeted; to achieve a durable solution as in when a legal status is acquired that reassures the protection of the individual within the national territory and defends their civil, economic, cultural, political and social rights. The BID procedure for UAM is considered essential and may be commenced as soon as possible and should be concluded no later than two years after the unaccompanied minor is identified. Furthermore, in the case that a durable solution hasn’t been reached within

the time framework of two years, the child shall continue benefiting from the temporary care solutions and their case shall be revisited within one year at the latest. BID is highly required in case of “a) unaccompanied minors who are not being reunified with a parent or legal customary caregiver, and, b) unaccompanied minors who are being reunified with a parent or legal customary caregiver in exceptional situations”. These exceptional situations include the cases that a) the family reunification will expose the unaccompanied child at additional risk, and, b) the temporary care will probably put the child at additional risk.

• European Union Agency for Fundamental Rights and Council of Europe, Handbook on European law relating to asylum, borders and immigration, 2015

Specific directives of EU legislation address the asylum procedures concerning unaccompanied minors. In brief, the EU legislation stresses that any decision concerning children, especially unaccompanied, should be aligned with due the respect to the rights of child as introduced by the UN Convention of the Rights of the Child. Therefore, special focus is given on two main factors: a) the Reception and Treatment conditions, and b) the Age Assessment exams. Under EU law, application by unaccompanied minors should be examined whether they’re subject to the Dublin regulation (Regulation (EU) No. 604/2013). A representative should be appointed immediately and in case of the absence of any family members in one Member State, the hosting Member State is responsible to assess the child’s best interests (Articles 6 & 8). Any interview with an unaccompanied child must be carried out by a trained professional that is aware of the minor’s special needs (Article 25). In the case of applicants aged 16 and over, but yet under 18, the EU legislation foresees the possibility of minors to be accommodated in centres for adult asylum seekers only if it’s in their best interests (Article 11).

As far as Age Assessment is concerned, under EU law, Member States are advised to fully ensure that the minors are thoroughly informed about the processes and proceed to age assessment exams when the age asylum-seekers declare is dubious (Article 25). The Asylum Procedures Directive does not specify the types of medical examinations; however, it stresses out that they should be conducted by highly trained medical staff and respect the child’s human dignity.

• EASO, Tool for Identification of persons with special needs (IPSN)

The development of the IPSN tool by the European Asylum Support Office aims to assist Member States to proceed to the identification of persons with special procedural under the Asylum Procedures Directive (2013/32/EU) and/or reception needs under the Reception Conditions Directive (2013/33EU). The tool may be used at any phase of the asylum process and reception. This is a realistic help resource for officials

involved in the asylum process and processing, which does not presume scientific, psychiatric or other professional expertise. EASO’s IPSN tool is designed to be universally applicable in any context of the asylum and reception procedures and it approaches the task to identify special needs based on key indicators that include age, sex, gender identity and sexual orientation, family status, as well as physical, psychological and environmental indicators. For example, the guidance given in cases of interviewing unaccompanied minors includes taking into great consideration any special needs and the information available on the case of each interviewee to adapt the interview accordingly. Adapting the tone of language is described as an efficient way to establish a safe and trusted atmosphere between the interview and the unaccompanied minor. Further, it is supported that the unaccompanied minors may be accompanied, if necessary, by a UNHCR representative or other persons providing legal or counselling assistance, emotional or even medical support.

4.2. Portuguese Legal Framework

• Asylum Act 26/2014 of 5 May 2014 amending Asylum Act 27/2008, transposing Directives 2011/95, 2013/32/EU and 2013/33/EU

From the overview of the legal framework, it occurs that the Portuguese response as far as the asylum is concerned comes to an agreement with the European Community Directives and is in line with the main rules of the above-mentioned guidance. More specifically, it transposes Directives regarding the standards to be met for third-country nationals which include Directive No 2004/83/EC and Directive No 2011/95/EU; Directive No 2005/85/EC that establish the standards regarding granting or withdrawal of refugee status in Member States; Directive No 2013/32/EU that establishes common procedures on granting and withdrawing international protection, and, last but not least, Directive No 2013/33/EU that establishes the standards regarding the reception of applicants for international protection. Moreover, the Portuguese Asylum Act 26/2014 declares that Directive No 2003/9/EC regarding the standards of reception of asylum seekers in Member States, has been also consolidated and implemented by Law No 20/2006. Article 77(2) of the Asylum Act 26/2014 clearly underlines the necessity to identify persons with special needs and their nature upon the registration of an asylum claim or at any phase of the process. Article 17-A(1) clarifies that the nature of the special needs should be assessed and identified prior to any decision regarding the admissibility of the application is assumed. Staff involved in the analysis and process of the application concerning unaccompanied minors must have undergone suitable training for the specific needs of the children including the rights of the child (Article 79(12)). Given the requirement to refer unaccompanied children to the Family and Juvenile Court for legal representation purposes (Article 79(2)), the Asylum Act does not deliver for a clear recognition process

for minors or reasonable requirements for deciding the asylum-seekers are to undertake age evaluation exams.

Moreover, based on Article 79(6), SEF may require medical exams to assess the age of the minor in case of doubt. Prior to any age assessment examinations, the unaccompanied minors must be profoundly informed and the medical checks shall take place after the minor has consented (Article 79 (7)). In addition, though Portugal has been criticized about the conditions and duration of the detention time at the CIT (centre of temporary detention in Lisbon airport) since 2016, the Portuguese Asylum Law does not state clearly that vulnerable groups such as unaccompanied minors shall be excepted from detention. “The duration of the detention at the border, unfortunately, suppresses fundamental Child’s Rights as it deprives them, first and furthermost of their liberty”, stated the CACR’s coordinator. Following the criticism, in July 2018, the Ministry of Internal Affairs issued an order stating that the detention of children under the age of 16 shall not exceed the timespan of one week.

• Child and Youth at Risk Promotion and Protection Act 147/99

As far as the foster care is concerned the procedures are mandated by the Child and Youth at Risk Protection Act 147/99. Under this Act and upon the child or young person’s progress and request, in the Family and Juvenile Court, he can make use of Article 45(1) that foresees the measure to support life autonomy which consists of directly providing young people over the age of 15 with a rented bedroom, financial, psycho-pedagogical and social support, supervised by specifically trained professional that are appointed by the States (Article 72(2). The condition to be granted this measure is for the young person to showcase that they have acquired the necessary skills for supervised autonomy (autonomia de vida). This Act applies to unaccompanied minors as well, though according to this act if they wish to extend the court procedure after turning 18, they might do so. However, financial support is not granted in case they are employed and receive income though they may apply for State benefits.

• COVID-19 and pending Asylum Application, Order No. 3863-B / 2020

Amidst the outbreak of COVID-19, on March 13th, Portugal declared a State of National Emergency and the Assembly of the Portuguese Republic considered the approval of urgent and drastic measures to ensure the safety of public health. Schools closed, public gatherings were prohibited, many services were suspended and remote

work was encouraged if applicable. A few weeks later, on March 27th, Portugal granted temporary citizenship rights to migrants, asylum seekers and refugees with pending cases in order for them to access health care amidst the pandemic. By Order No. 3863-B/2020, Portugal determined that the management of the appointments shall be carried out in such a way as to unequivocally guarantee the rights of all foreign nationals with cases pending before at the SEF amid COVID-19. That said, migrants whose documents and visas related to the stay in national territory, whose validity would expire from the date of entry into force of the present decree-law or in the immediately preceding 15 days, were accepted until June 30, 2020. In the meantime, foreign citizens who had requested Asylum or subsidiary national protection and held the status of asylum seekers, of refugee and subsidiary protection, were considered to be regular to stay in national territory with proceedings pending in the SEF, on the date of March 18, at the time of the declaration of the State of National Emergency. As the SEF’s services were suspended, all appointments scheduled until March 27 resumed from July 1 in chronological order. Finally, all person in detention were immediately released and all operational CITs were closed. As far as the UAM is concerned, that order enabled them to have access to remote education, support of the temporary accommodated children in preventative isolation in hostels, medical care in case of infection from COVID-19 or for minors with disabilities or chronic illnesses.

5. Research

5.1. Research Objectives

The massive influx of migrants and refugees within the EU Member States has alerted organizations and public sectors in both national and European context. While the EU Members are required to take into consideration several factors concerning the incoming refugee and migrant populations, yet amongst its biggest concerns is to reassure that their rights are respected. In Portugal, 4% of the asylum applicants in 2019 were unaccompanied minors. SEF states that the biggest obstacle minor applicants face is the lack of birth records, the lack of identification or residence documents and their dubious authenticity. The main research, focusing on asylum-seeking unaccompanied children, aims to explore the legal framework for asylum application procedures in Portugal and to identify the challenges and good practices of its implementation based on the testimonies of professionals. Consequently, three main questions are being addressed in the main research namely:

1. How is the legal framework for the Asylum process for unaccompanied minor applicants formed in Portugal in relation to the International and European legislation?

2. What are the good practices and challenges that emerge during the Asylum application process for unaccompanied children in Portugal?

3. To what extent are the asylum-seeking children informed about the asylum procedure?

5.2. Research Methodology

As aforementioned, this research aims to explore the EU’s legal framework for the Asylum Application process for unaccompanied minors and focus on the practices of its implementation in Portugal through interviews with staff members of the local infrastructure that hosts separated children. Therefore, the qualitative approach is considered appropriate and is expected to explore, analyse and demonstrate the duty of EU to unaccompanied children. The main focus of the researcher is to further investigate and clarify social phenomena and legislation from a sociolinguistic point of view.

Furthermore, apart from the review and analysis of the data found in the documentation, the research involves raw data from interviews used as primary sources. More specifically, the analysis of the relevant literature, reports and legislation was conducted by targeting the information that corresponds to the research questions. Given that, all the bibliography and legislation consulted for this research were profoundly read, mainly zooming into the references concerning UAM. At first, the legislation regarding the asylum process for unaccompanied minors was categorized and researched in the following themes: i. Detention at the border, ii. Admissibility, iii. Guarantees for vulnerable groups and iv. Asylum Processes such as Age Assessment. After, the relevant reports from AIDA, CPR and SEF from the past years were analysed based on these four categories. Moreover, through the analysis of the reports the researcher collected statistical demographic data regarding the UAM which include country of origin, gender, age, as well as a few data regarding their prior school experience and literacy. Also, by examining carefully the reports there were noticed some patterns in the challenges during the implementation of asylum process, such as the abscondment of UAM. Those patterns were later used to form part of the questions for the interviewees.

Semi-structured interviews are conducted with the staff members of the Reception Home for Refugee Children (Casa de Acolhimento para Crianças Refugiadas - CACR) and they allow the speakers to elaborate on the discussed topic freely and express their knowledge and personal experience. Therefore, open-questions were preferred. The main axes of the form of the questions included. How the procedure applies in reality, ii. What are the challenges and the good practices during its implementation, and, iii. What is the profile of the UAM accommodated at the CACR. After the interviews with the participants, the researcher matched the data to the four themes mentioned above from the analysis of the reports and legislation. Then, the same data were classified as in I. Implementation of the legislation, ii. Challenges, iii. Good Practices, iv. Profile of the UAM at CACR, v. Information about the asylum processes to UAM and vi. Personal experiences and cases. . The staff members interviewed for the purposes of this study hold positions such as social and educational workers.

Lastly, the researcher derived useful information from her personal archive from the period she interned at CACR from October through December 2019. That includes notes from the observation of the daily routines of the UAM at CACR which are considered essential to support statements or situations discussed by the participants.

5.3. Research Sample

To cater the purpose of research, the researcher utilized the contacts acquired during interning at the CACR during the winter of 2019-2020. The researcher was given permission to browse through the files of the admitted unaccompanied children during the biennium of 2017-2019 in order to draw conclusions and a better understanding of their background. The main challenge that the research confronted was the sudden outbreak of the pandemic COVID-19, as it unfortunately made it impossible to meet in person with professionals as well as to have the chance to discuss with the unaccompanied minors themselves to what extent they are informed about the asylum processes. However, as aforementioned, due to the internship of the researcher at CACR in late 2019, there were several opportunities for direct communication with the unaccompanied asylum-seeking minors. Despite that obstacle, seven (7) participants, whose personal data apart from their professional roles shall not be disclosed

in this research, shared their perspective and experiences regarding the Asylum application process for unaccompanied minors in Portugal: one (1) Reception Centre Coordinator at CACR, two (2) Social Workers at CACR, two (2) Interns in Social Work at CACR , one (1) Portuguese Teacher at CACR, one (1) Lawyer at CPR Any information regarding the minors of CACR derived from the researcher’s own experience shall not touch upon either the way(s) how they arrived in Portugal nor what happened back in the country of origin or the country they have been transferred from.

6. Findings

This Chapter presents the results of the interviews conducted in connection to the legal framework and theoretical framework. The results are classified as in the profile of the unaccompanied minors at CACR, ii. the challenges and the good practices during the implementations of the asylum processes and iii. information about the asylum procedure to UAM. The classification of the results from the interviews derived from the main axes based upon the open questions were formed to correspond best to the research questions. Each subchapter demonstrates the results from the interviews with statements from the participants and relevant references from the reports and associated legislation.

6.1. Profile of the Unaccompanied Minors

During the discussion with the participants, they were asked about the characteristics of the unaccompanied children arriving in Portugal, information that aims to draw their profile. Additional data to fortify this section are also derived from the researcher’s own experience while interning at CACR for the period of October to December 2019.

All participants agreed that the majority of the unaccompanied children that seek asylum in Portugal are male and of African origin with Guinee-Bissau (Portuguese-speaking), Guinea Conakry and Senegal being the most common nationalities. Indeed, CPR’s annual reports from 2015-2018 showcase the same information as well as the researcher’s personal archive.

Additionally, all participants mentioned that the average age range of the incoming minors is between 16-17 years old, whilst they had received very few younger children in the past. However, they were eventually transferred to other centres as the majority of the rest were adolescents and CACR was predominantly adjusted to cater the needs of teen minors. During the researcher’s internship at CACR the only minor under 16 was a female from Azerbaijan at the age of 12 years old, while by the end of December 2019 a male unaccompanied child of about 9 years old was admitted to the centre.

The majority of the unaccompanied minors acquire the Asylum Claim Declaration, but just a few of them are provided with the Temporary Residence Permit which enables them to access a variety of activities such as Education and Occupation when they reach the age of 18. The Coordinator of CACR mentioned that SEF typically keeps renewing the Asylum Claim Declaration every two months, when a decision for asylum hasn’t been concluded, instead of issuing the Temporary Residence Permit which has a validity of six months, and, as a result, minors cannot attend school immediately. During the researcher’s internship at CACR, out of 28 admitted minors in October, only five of them had a Temporary Residence Permit.

Moreover, the participants were asked whether Portugal was in the initial plans of the minors or they intended to resume their journey somewhere else. According to the interviewees, there was a great number of unaccompanied children that indeed intended to come to Portugal either due to the language, as some of them already spoke a bit or good Portuguese, or due to the fact that they had heard from others that the conditions in Portugal are good. The participants particularly highlighted that point, saying that some minors, for instance having been transferred from Italy, reported that either the system was too poor or there was a lot of racist behaviour towards them. However, one of the social worker interns at CACR mentioned that she was given the impression that some minors, especially those speaking French, would rather go to France based on stories they heard from others, or, based on the coordinator’s testimony, some of them would prefer to join other family or people that they had established some close relationship with in other countries, such as Spain. Based on some conversations that the researcher had with unaccompanied minors at CACR, it is true that those who contemplated moving somewhere else in the future indeed were grounding that plan around stories that they had heard from other people and on the language(s) they spoke. A few minors had stated that they are tired of constantly learning a new language every time they are being transferred and that they would rather invest in their time and knowledge to start their life in one country. Finally, the prior schooling experience of the minors ranges a lot, from absolutely zero schooling experience and illiteracy to the attendance of secondary education. On average, the majority of the minors’ education ranged between no prior schooling experience and elementary education.