Masters Thesis

i
LL.M. 2011/12
“Asylum crisis specified in unaccompanied children, in Greece, EU
and Internationally”
Name: Danai Galaziou
Submission date: 25 September 2012
Total word count: 16 425
A dissertation submitted in part fulfilment of the regulations for the degree of Master of Laws
in International Human Rights Law, Oxford Brookes University

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Statement of Originality
Except for those parts in which it is explicitly stated to the contrary, this dissertation is my
own work. It has not been submitted for any degree at this or any other academic or
professional institution.
The copyright of this dissertation rests with the author. Information derived from it should
be acknowledged.
I agree that the dissertation may be made available for reading and photocopying at the
discretion of the Head of the School of Social Sciences and Law. Permission for anyone
other than the author to reproduce or photocopy any part of the dissertation must be
obtained from the Head of School who will give his/her permission for such reproduction
only to an extent which he/she considers to be fair and reasonable.
D.Galaziou 25.09.2012
………………………… ……………
Signature Date

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Plagiarism
Name of student: Danai Galaziou
Dissertation title: ‘Asylum crisis specified in unaccompanied children, in Greece, EU and
Internationally.’…………………………………

Using other people’s ideas without acknowledging that the ideas are theirs

Copying from other published or unpublished work without acknowledging the
Source

Quoting from books, articles, law reports or any other writings without acknowledging
that the words are being quoted.
Further, assessed work should be your own work and should not be produced jointly with
any other student unless the instructions clearly specify this. Where collaboration is
permitted, it should be made clear which part or parts of any jointly-produced work are
shared.
Any course work submitted for assessment which is plagiarised, in whole or in part, may be
subject to disciplinary action in accordance with the University’s Student Disciplinary
Procedure.
Regulation 19 for candidates taking examinations reads as follows:
“Candidates must ensure that course works submitted for assessment in fulfilment of course
requirements is genuinely their own and is not plagiarised.”
If you are clear, please sign the statement below.
I have read and understand the notes above and I confirm that the work submitted here for
assessment is my own work and has not been plagiarised.
Signature…D.Galaziou……………………..
Date…25.09.2012………………….

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ABSTRACT
The purpose of this Thesis is to present a legal approach to the protection of UAMs
internationally, in the European Union and in Greece. The paper seeks to examine and
analyse how the unaccompanied children are protected under international law, mainly
under the framework of the Convention of the Rights of the Child, European Union Law
under the Stockholm Programme and through a number of Council Directives and
finally how they are protected under Greek Law. Regarding the case of Greece, a
number of Presidential Decrees have been adopted; however their implementation is
still weak. Many areas have been identified as problematic, such as the guardianship
system, the systematic detention of minors and the inhumane detention conditions, the
lack of interpreters, information and legal aid especially at the entry points and the
lack of appropriate accommodation which affects every other provision concerning
social protection(health, employment, education). Moreover problematic remain the
situation with the Dublin II returnees and the incidents of racist violence against third-
country nationals.
The Thesis will draw to a conclusion that the protection offered in all three levels is
weak and not effective. Reforms are necessary especially in Greek legislation but also
in the current approach that EU follows which is focused on the ‘sealing’ of the borders
and not on the protection of unaccompanied children’s rights.

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TABLE OF CONTENTS
Acknowledgements ................................................................................................... ... 5
List of Abbreviations and Acronyms............................................................................. . 6
Introduction ................................................................................................................... 7
i) Setting the scene ………………………………………………………………… …7
ii) Aim of dissertation…………………………………………………………………9
iii) Methodology…………………………………………………………………… 10
Chapter 1:The protection of unaccompanied children in the international level 14
1) Introduction……………………………………………………………………...…14
2) International legislation for unaccompanied children…...........................................15
a) Convention of the Rights of the Child…………………………………..………16
i) Non- discrimination…………………………………………………………....17
ii) Best interest principle…………………………………………………………19
iii) Participation…………………………………………………………………..20
iv) Life and full development…………………………………………………….20
v)Protection of refugee/asylum seeking and migrant children as part of the CRC 21
b) Other International legislation for the protection of refugee/asylum seeking and
migrant children ……………………………………………………………………….23
i) Refugee child………………………………………………………………..….23
ii) Child migrant ………………………………………………...……...………...25
3)Concluding remarks………………………………………………………………….26
Chapter 2: European policy and legislation towards unaccompanied children…..28
1) Introduction………………………………………………………………………...28
2)Towards a Common European Asylum System: Amsterdam, Tampere and Lisbon 29
3) Current EU legislation…………………………………………………………….. 33
i) Council Resolution of 1997 on unaccompanied minors who are nationals of third
countries (97/C 221/03)…………………………………………………...……………33

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ii) The main EU Directives and their impact on unaccompanied children.…… 35
iii) European Convention for Human Rights………………………………….…40
4) Concluding remarks…………………………………………………………… 41
Chapter 3: The protection of UAMs under the Greek legislation………………. . 43
1) Introduction……………………………………………………………… ……….43
2) Existing legislation……………………………………………………………… 43
i) Towards an harmonization with the Common European Asylum System……..44
ii) The Greek Action Plan…………………………………………………………48
3) Conclusion…………………………………………………………………………49
Chapter 4: Unaccompanied children in Greece: a store of human souls……… 52
1) Introduction……………………………………………………………………... 52
2) Access to asylum………………………………………………………………….53
i) Points of entry………………………………………………………………... 53
ii) Asylum procedures and Refugee Status Determination……………………….54
3) Reception Arrangements………………………………………………………… 57
i) Guardianship……………………………………………………………………58
ii) Age and vulnerability assessment…………………………………………….. 59
iii) Detention………………………………………………………………………61
iv) Family tracing and family reunification……………………………………….65
4) Social Protection………………………………………………………………… 66
i) Accomodation…………………………………………………………………. 66
ii) Healthcare…………………………………………………………………… 68
iii) Education…………………………………………………………………….. 69
iv) Vocational training and employment………………………………………….70
5) Return practice, including reintegration and the case of the “Dublin II returnees”71
6) Violence against children…………………………………………………………75
7) Concluding remarks……………………………………………………………. 78

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Conclusion…………………………………………………………………………….80
Appendix 1: Interview template…………………………………………………… 85
Apprendix 2: List of pictures……………………………………………………… 89
Bibliography……………………………………………………………………….. 91
i) Books and Reports………………………………………………………………. 91
ii) Other Sources (Journals, newspapers, online sources)…………………………. 97
iii) Interviews……………………………………………………………………… 99
iv) Cases…………………………………………………………………………… 100
v) Legislation……………………………………………………………………… 101
a) International legislation……………………………………………………….. 101
b) European Union legislation……………………………………………………..103
c) Greek legislation……………………………………………………………… 106

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Acknowledgements
A number of people have supported me to the accomplishment of this thesis over the
last year and I would really like to thank them.
Firstly I would like to express my deep gratitude and thanks from the bottom of my
heart to my supervisor Sonia Morano-Foadi who is a unique source of inspiration both
as a personality and an academic. Her continuous support and excellent supervision
contributed significantly to the accomplishment of this study whereas her knowledge,
beliefs and ethos have been a constant source of inspiration.
I am also very grateful to Dr Zeray Yihdego for his encouragement, help and support
through the year.
I would also like to express the deepest gratitude to the people who contribute with their
interviews and enriched my knowledge. Their names cannot be disclosed for ethical
reasons.
Last but not least, I owe a big thank you to my parents, Andreas and Κonstantina as
well as my beloved Tasos Papanikos, for their support and patience throughout all my
Master’s Degree but also a number of friends, Chrisa Deligianni, Irida Attaleiadi and
Mariam khokhobaia, for their encouragement.

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List of Abbreviations and Acronyms
BIC — best interest of the child
CEAS - Common European Asylum Policy
CPT- European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment
CRC — United Nations Convention on the Rights of the Child
EASO- European Asylum Support Office
EC — European Commission
ECHR- European Convention of Human Rights
ECtHR - European Court of Human Rights
ECJ — European Court of Justice
ERF — European Refugee Fund
FRA — European Union Fundamental Rights Agency
HRW- Human Rights Watch
ICCPR- International Covenant on Civil and Political Rights
ICESCR- International Covenant on Economic, Social and Cultural Rights
ILO- International Labour Organisation
IOM — International Organization for Migration
NGO- Non Governmental Organisation
PD- Presidential Decree
RSD- Refugee Status Determination
UAM — Unaccompanied Minor
UNHCR — United Nations High Commissioner for Refugees

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INTRODUCTION
We are permitted dwelling in this country, free, with all the
privileges of immunity insured from enemy threats, and no one
neither native nor foreigner can lift us from here. And if a citizen
from those who refused to help us stand against us, will be knavish
and banished from the country with everyone’s vote.
(The “Supplices” of Aeschylus)1
i) Setting the scene
The origins of the right to asylum can be traced back to ancient times, when Greek and
Roman cities offered sanctuary to anyone in need of a safe place to hide. Today, the
meaning is still the same but the times and the circumstances have changed
significantly. Europe is considered the “promised land” for many third world nationals
originating from developing or countries at war and natural disasters. This is why more
and more people in need of international protection try to reach the doorstep of EU with
every possible means, even if they are illegal.
Within this context, Greece has become the major gateway for undocumented migrants
and asylum seekers into the EU the last few years mainly due to its geographical
location2
.The large numbers of arrivals of third country nationals in its borders every
day in combination with the chronic dysfunctional asylum system and the inhuman
detention conditions lead to the abovementioned asylum crisis. Moreover the current
economical crisis that Greece is facing and the implementation of the Dublin ΙΙ
1 Informal translation from Greek of the Greek Tragedy the “Supplices” of Aeschylus. It was the first in history institutional and
political capture of asylum. Lyrics 615- 620

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Regulation which assigns responsibility for examining asylum claims to the first EU
country in which an asylum seeker enters contribute in deteriorating situation.
Unaccompanied children are one of the most vulnerable groups of the migration
movement.
2
Map of Greece
According to the United Nations High Commissioner for Refugees (UNHCR) an
unaccompanied child is: a child under the age of 18 and who is separated from both
parents and is not being cared for by an adult who, by law or custom, is responsible to
do so3
. The majority of children, especially young adolescents 15-18 years old, more
2 Map of Greece and Turkey Border Region by Rafael Jimenez
3 UN High Commissioner for Refugees, ‘UNHCR Guidelines on Determining the Best Interests of the Child’, (May 2008) p 8
< http://www.unhcr.org/4566b16b2.pdf>, accessed June 2012
Picture 1 : Map of Greece

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and more often make their own decision to flee their country and seek for a better
future. The reasons vary. Many children decide to move in order to escape
armed conflicts, persecution, severe poverty and deprivation in their countries of origin
or because they are being orphaned as well as to gain access to education and find a
work. The problematic asylum procedures in the Greek legal system and the lack of
concern for the needs of unaccompanied minors needs that I experienced as a trainee in
a law firm pushed me to attempt an understanding and critical analysis of the legal
framework in Greece. Specifically, one of my strongest motivations for undertaking this
research was my everyday experience of the sordid poverty that many third country
nationals’ children live in, while I was living in Patras. Patras has long been a major exit
point from Greece towards the rest of Europe as it is one of the major ports connecting
Italy. Therefore the majority of asylum seekers and irregular migrants, among them a
significant percentage of UAMs, are concentrated in the city living in dreadful
conditions in the streets or in abandoned houses and factories until they manage to
continue their journey.
ii) Aim of dissertation
The purpose of this Thesis is to provide a thorough examination and analysis of the
crucial situation in which Greece is found, in relation to unaccompanied children, as a
member of the European Union and within a broader international level. More
specifically, it covers the following research question:
How are the unaccompanied children protected under international, European and
Greek law? Is this protection effective?

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By answering this question, this research seeks to provide an overview of the key
concepts and issues on the development of an asylum law regarding the protection of
UAMs extending in three levels. Starting from the macro environment-international,
European Union- steadily moves to a micro case, that of Greece which is the main
focus. This paper eliminates knowledge gaps and offers an up to date evaluation over an
area which urgently needs to be taken into consideration and which is of great concern
among European countries as well as in Greece individually.
iii) Methodology
In this thesis, I undertook a situational analysis of how unaccompanied children in
migration movements are protected and assisted according to standards set by
international, EU and Greek Legislation. The focus was on the key areas of
guardianship, detention, social care including health, education, employment and
accommodation, access to asylum and RSD, return practices and various aspects of the
asylum procedure. A number of research methods were employed such as analysis of
international, European and national implementing legislation, sampling and analysis of
asylum decisions, interviews with competent authorities, lawyers, academics ad NGOs
and finally desk research in order to gather background information on the relevant
provisions, their interpretation and use. Desk research was essential in order to gather
the information needed, including review of legislation, case law, policy papers,
parliamentary reports, legal commentaries but most importantly relevant reports from a
number of NGOs and human rights organizations such as Human Rights Watch,
UNHCR, Amnesty International, FRA, Red Cross, Medicines sans Frontiers etc. In

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addition to this, interviews with professionals involved in the asylum process were a
key part in order to complement and to verify the findings from the desk research. The
interviews were semi-structured, face to face and interviewees were informed of the
purpose and methodology of the research and all agreed to participate and be recorded
(consent forms are available on request).
This Thesis presents a legal approach to the protection of UAMs internationally, in the
European Union and in Greece. The legal argument is based on individual assessment
which took a qualitative approach, meaning that the findings have to be seen within a
particular context and cannot be generalized. The wealth of data obtained through this
qualitative research permitted an in depth understanding of the context. However there
were some challenges and limitations. To begin with, the temporal and geographic
scope of this research is limited. Due to lack of time and funding the interviews were
few and all of them took place in Patras therefore were focused in the problems and
difficulties of the particular city. Even though I tried to reach as many people as
possible, establishing contact appeared to be difficult for some. Additionally, there was
a case where representative of state authorities was reluctant to reveal important
information, perhaps due to an anxiety of revealing some substandard practices.
In terms of composition, the paper will be structured in four main chapters:
In chapter One, the main purpose is to provide an insight regarding the situation of
unaccompanied children in migration movements, by examining the existing
international legislation and setting international standards for their protection. The
Convention of the Rights of the Child is discussed with specific focus in the

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fundamental principles of non-discrimination, best interest of the child, the right of
participation and how these principles are implemented in relation to UAMs.
In chapter Two, an evaluation of the current European Union Asylum System is
attempted through an examination of the CEAS and the main legal instruments
concerning asylum and immigration law in relation to UAMs. It is supported that
despite multiple European Commission asylum directives these have failed to remedy
wide disparities throughout the EU in the treatment of asylum seekers. Finally a new
approach is proposed in order to deal with the current asylum crisis within EU.
Chapter Three, is the first part of a broader section which will examine the legal
framework of unaccompanied children in Greece. It is based on law and policy analysis,
focusing in the key provisions concerning UAMs and identifying the gaps in the
legislative framework.
Chapter Four, constitutes the second and most important part of the broader section
concerning the case of Greece. The chapter, based in interviews with stakeholders
involved in practical aspects of migration and asylum policy in Greece and reports from
many NGOs and Human Rights Organizations, outlines the situation facing UAMs in
Greece by focusing in areas such as guardianship, detention, asylum procedures, social
care and protection including accommodation, health, education and employment. An
understanding of the situation of the returnees under the Dublin Regulation is provided
as well as an examination of the phenomenon of racist violence and ill-treatment against
UAMs is offered.

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Finally, the Thesis will conclude with an evaluation of the situation, identifying the gaps
and proposing reforms. The argument supported is that asylum crisis with specific
regard to unaccompanied children cannot be solved as long as EU does not change the
current restrictive and quasi-military approach to control her borders and adopt a more
child’s rights-friendly approach.

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CHAPTER 1
The Protection of Unaccompanied Children in the International Level
1) Introduction
This chapter attempts to present the international legal framework protecting children,
whether they are asylum seekers, refugees or illegal immigrants who temporarily live in
a state. It also attempts to prove that this framework can provide sufficient assistance
and care as well as protection to every child if implemented in a proper way.
Additionally, the Convention of the Rights of the Child4
is analyzed and its
implementation considered. The chapter focuses on the "triangle of rights" which means
the three key principles underlining the whole Convention of the Rights of the Child.
Those fundamental principles are the non-discrimination, the best interest of the child
and finally the right of participation, as nearly every article concerns some aspect of
children's participation in society. The three rights interrelate and reinforce each other
so that the final objective, namely the survival and full development of the child, is
achieved. Regarding the international legislation, the 1951 Convention is referred to in
relation to refugee children and the principle of non- refoulement is explained.
4 Convention on the Rights of the Child (adopted by General Assembly resolution 44/25 of 20 November 1989, entered into force
the 20th of September 1990, in accordance with article 49) 1577 UNTS 3

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2) International legislation for unaccompanied children
There is no doubt that CRC is the most important International Convention as far as the
protection of children in general and unaccompanied children in particular are
concerned. Nevertheless this does not mean that a child cannot seek protection in other
International Treaties. Children, including UAMs, are protected by various human
rights and humanitarian law instruments such as the UN Charter5
and the Universal
Declaration of Human Rights 19486
as well as the International Covenant on Civil
and Political Rights (ICCPR) 7
the International Covenant on Economic, Social
and Cultural Rights (ICESCR)8
and Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment9
.
5 Charter Of the United Nations (adopted 26th June, 1945, entered into force 24th October 1945) 892 UNTS 119
6 Universal Declaration of Human Rights (adopted 10 December 1948) 217 A(III) , available at < http://ww
w.unhcr.org/refworld/docid/3ae6b3712c.html > accessed 3 May 2012
7 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 of March 1976) 999
UNTR 171
8 International Covenant on Economic, Social and Cultural Rights (adopted
16 December 1966, entered into force 3 January 1976, in accordance with article 27) 993 UNTR 3
9 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (adopted by General Assembly
resolution 39/46 of 10 December 1984, entered into force 26 June 198.) 1465 UNTS 85

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a) Convention of the Rights of the Child
The CRC sets the most important international standards for the protection of every
child and its significance is obvious if one considers that UNHCR also applies the CRC
to its own work by using the rights as guiding principles. Although the rights in the
CRC cover almost every aspect of a child's life, some of them are so fundamental that
they can be thought of as underlying the entire CRC. Those three core guiding
principles are the non-discrimination (Art. 2), best interest of the child (Art. 3) right to
life, and respect for the views of the child (Art. 12) which reinforce each other to
succeed the final aim- the survival and development(Art 6). A more extended reference
of those core principles is provided in the following pages with specific consideration of
the way that this ‘triangle of rights’, apply to non-national children, such as refugees,
asylum seekers and migrants. The CRC emphasizes that every right in the Convention
must apply to every child in the State without discrimination of nationality or
immigration status. Therefore covers refugees, migrants or even children who live in a
state without any legal status (illegal immigrants). The uniqueness of CRC is that it is
the only binding treaty offering a quite complete protection in every aspect of a child's
life, from health and education to social and political rights. Since CRC applies
specifically to children, it is clear that takes into consideration children’s
particular situation and needs and recognizes the child as an agent of human rights10
.
Regarding the unaccompanied and separated Children, the United Nations Committee
10 J Bhabha And W Young, ‘Not adults in miniature: unaccompanied child asylum seekers and the new U.S. guidelines’,
International Journal of Refugee Law (1999) 11(1) :84 – 125 93

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on the Rights of the Child issued a General Comment No. 6 (2005) on the Treatment of
Unaccompanied and Separated Children Outside their Country of Origin11
in order to
provide guidance in the implementation of the CRC and reinforce the protection for
unaccompanied and separated children. The Comment is focused to the particularly
vulnerable situation of this group of children, outlining the challenges that these
children face in order to access and enjoy their rights, and provide guidance in the
protection, care and proper treatment based on the CRC legal framework12
. It highlights
that the ultimate aim is to find a durable solution that addresses the children‘s needs, by
taking into account the three key principles and especially the child’s own view.
i) Non-discrimination
According to article 2 CRC all the rights in the Convention must apply to all children in
the State, including visitors, refugees, children of migrant workers and those irregularly
in the State. This is also supported by the Committee on the Rights of the Child which
states that: “All Children who have had their asylum requests rejected but remain in the
country have had their right to health care and education provided de facto but not de
jure. It is the view of the Committee that such services should be provided as a matter
11 UN Committee on the Rights of the Child (CRC), CRC General Comment No. 6 (2005): Treatment of Unaccompanied and
Separated Children Outside their Country of Origin( adopted 3 June 2005, entered into force 1 September 2005)
CRC/GC/2005/6, available at: < http://www.unhcr.org/refworld/docid/42dd174b4.html> ,accessed 7 June 2012
12 Blanka Hancilova and Bernadette Knauder ‘Unaccompanied Minor Asylum-seekers: Overview of Protection, Assistance and
Promising Practices’(International Organization for Migration, December 2011)

18
of principle according to the letter and spirit of articles 2 and 3 of the Convention” 13
.
The principle of non-discrimination is particularly relevant to migrant and refugee
children as very often those children face human rights problems stem from
discrimination, for instance in the form of racism/xenophobia. In addition to this,
unequal access to economical, social and cultural rights usually leads migrant children
(especially those who are undocumented or unaccompanied) to be excluded from
education and with limited -if at all access to health care. Therefore article 2 is of great
importance since it prohibits any discrimination based on the status of a child as
unaccompanied or separated, as a refugee, migrant (regular or irregular), or an asylum
seeker. The implementation of the non-discrimination principle must be integrated in
the interpretation of every article in the Convention in order to guarantee that every
child can fully enjoy all the rights without discrimination of any kind14
. It is important
that State Parties have the obligation to play an active role in the prevention and
elimination of every kind of discrimination by taking appropriate measures that ensure
the fulfillment of all the rights of the Convention.
13 Jyothi Kanics, Daniel Senovilla Hernández, Kristina Touzenis(eds), ‘Migrating Alone: Unaccompanied and Separated Children's
Migration to Europe’ (UNESCO Publishing 2010, 1st edn) 23
14 International Organization for Migration (2008), ‘Human Rights of migrant children’, p 18 available online <
http://www.globalmigrationgroup.org/uploads/gmg-topics/children/1.C_Int_Migration_Law_N_15_Human_Rights_IOM.pdf>,
accessed June 2012

19
ii) Best interest principle
The “best interest of the child” derived from article 3 of the CRC and is one of the core
principles applicable in all policies, among them those concerning the treatment of non-
national children. The "best interests" rule has two main applications: government
policymaking and decisions made about children on an individual basis as far as their
welfare and mainstreaming is concerned.
As far as the Policy decision is concerned, Art. 3 requires States to analyze how each
course of action may affect children15
.As the status of children is very different
compared with an adult‘s in terms of interests as well as needs, if any conflicts are
identified regarding some course of action, the State must make the BIC a primary
consideration. This rule is relevant in budget allocations, in the making of laws, and in
the administration of the government. With regard to individual cases, the consequences
for the child of a given course of action must be closely examined – a requirement
similar to that in policy decisions. According to the UN High Commissioner for
Refugees: “What can be different in individual cases is that under some CRC articles a
child's welfare must be given priority over an adult's”16
.
Thus, even though the principle cannot guarantee a particular outcome, its existence is
important principally because it is the most essential precondition in realizing any right
as well as an “umbrella provision directed at ensuring the well-being of the child” 17
.
15 UN High Commissioner for Refugees, ‘Refugee Children: Guidelines on Protection and Care’ n(3) 7
17 International Organization for Migration (2008), ‘Human Rights of migrant children’ n(14) 21

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iii) Participation
According to article 12, every child has the right to participate in decisions taken for
them. Participation is a theme diffuse in the Convention as nearly every article concerns
some aspect of children's participation in society such as social participation in family
(arts. 7.1,10) and community life (arts. 15, 17). The child – centered approach of the
Convention gives on child a greater participatory role than is orthodox18
and support the
argument that what is best for the child depends on the child’s view. The UN High
Commissioner for Refugees states that “participation is important not only because it
can help adults to make better choices in the decision-making procedures but also meets
a developmental need” 19
. Through participation children learn decision-making skills
and gain the confidence to use those skills wisely.
iv) Life and full development
The child’s right to life and full development, as stipulated under Article 6, is the
ultimate goal. Article 6(2) goes beyond the fundamental right to life, in promoting
survival and development to the maximum extent possible20
. The Committee
understands child development in a holistic concept, embracing the whole Convention.
States should create an environment conducive to ensuring, to the maximum possible
18 G. Van Bueren, ‘The International Law on the Rights of the Child (1st edn, Kluwer Law International, 1998) 47

21
extent, the survival and physical, mental, spiritual, moral, psychological and social
development of the child, in a manner consistent with human dignity, in order to
prepare the child for an individual life in a free society21
.
v) Protection of refugee/asylum seeking and migrant children as part of the CRC
The CRC even though it is not a refugee treaty22
, can cover refugee children because all
CRC rights are to be granted to all persons under 18 years of age (art. 1) without
discrimination of any kind (art. 2). UNCHR states in the Guidelines on Refugee
Children on Protection and Care that the CRC sets international standards and is
extremely important for refugee children mostly because of the near- universal
ratification of the treaty23
. Because the standards are universal, the CRC can be used as
a powerful tool for advocacy and may be used as the primary basis for protecting
refugee children even if a State has not ratified any refugee treaty24
. In addition to this,
the CRC addresses the position of refugee children and seeking asylum children directly
in article 22 of the Convention. Therefore Article 22 is of great importance as it is the
21 UN General Guidelines for Periodic Reports, para. 40, available online at <
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CRC.C.58.En.>, accessed June 2012
22 1) UN High Commissioner for Refugees, ‘Refugee Children: Guidelines on Protection and Care’ n(3) 5
2) Jyothi Kanics, Daniel Senovilla Hernández, Kristina Touzenis(eds), n(13) 28
23 J Bhabha And W Young, n(10) 94

22
first global, explicit, legally binding recognition of refugee children’s specific needs25
.
In particular article 22 recognizes that refugee and asylum seeking children can face
very hazardous circumstances and they have particular needs that have to be covered.
Additionally the second paragraph is referred to UAMs and their right of special
assistance and protection provided by the States Parties. Except article 22, other rights
can address to refugee and asylum seekers especially if interpreted in conjunction with
art 22. For instance article 10 which is referring to the right of family reunification,
article 20 referring to children without families as well as articles 37 and 39, the former
regarding the prohibition of torture and ill-treatment and deprivation of liberty as last
resort measure and recovery and reintegration after experience of armed conflict, torture
and other forms of abuse the latter. Finally, there are rights in the Convention, for
instance 34 and 26, protecting children from violence, abuse and exploitation that take
on special significance for migrant children particularly those whose status is illegal or
not yet clear. Migrant children in an irregular situation who are separated from their
parents are a particularly vulnerable group, which without documentation, and access to
services, remain exposed to diverse forms of exploitation and human rights abuse. “This
may be labour exploitation, physical abuse, sexual violence and exploitation, detention
or the denial of their basic right to be children, that is, to enjoy all of the rights in the
CRC”26
.
25 Eva Nykanen, ‘Protecting Children? The European Convention on Human Rights and Child Asylum Seekers’ (2001) European
Journal of Migration and Law 3: 323
26 International Organization for Migration (2008), ‘Human Rights of migrant children’ n(14)

23
b) Other international legislation for the protection of refugee/asylum
seeking and migrant children
i) Refugee child
In addition to the CRC, the Conventions of significant importance regarding the
protection of refugees and asylum seekers, are the 1951 Convention27
relating to the
Status of Refugees and the 1967 Protocol28
especially due to the existence of the
principle of non-refoulment .This principle is set out in Paragraph 1 of Article 33 of the
1951 Convention which states that: “No Contracting State shall expel or return
(“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his
life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion”29
. One should keep in
mind that is up to States to choose who will cross its borders and will be permitted to
live in. However in any case the decisions of the state must be in consistence with the
basic human rights principles and particularly the non-refoulement principle which due
to its fundamental and universally accepted character, has been recognized as a
principle of customary international law.
27 1951 Convention relating to the Status of Refugees (adopted on 28 of July 1951, entered into force 22 of April 1954) 189 UNTS
150
28 1967 Protocol Relating to the Status of Refugees, (adopted 31 January 1967, entered into force 4 October 1967) 606 UNTS 267
29 1951 Convention relating to the Status of Refugees, n (27) art 33 para 1

24
In addition to the 1951 Convention, the principle of non-refoulement has found specific
expression in a number of international instruments adopted at the universal and
regional levels such as the Declaration on Territorial Asylum30
, the Final Act of the
United Nations Conference on the Status of Stateless Persons 195431
and Convention
against Torture32
.
As far as the children specifically is concerned, the 1951 Refugee Convention and the
1967 Protocol (Relating to the Status of Refugees) set standards that apply to children in
the same way as to adults: (1) a child who has a "well-founded fear of being persecuted"
for one of the stated reasons is a "refugee"33
, (2) a child who holds refugee status cannot
be forced to return to the country of origin (the principle of non-refoulement), and (3)
no distinction is made between children and adults in social welfare and legal rights.
The definition is rather strict since there are many other reasons for leaving one’s home
except the well-founded fear of prosecution for the reasons stated. By indicating a
specific motive, reasons such as famine, natural disasters and war are left out of this
definition, making the scope limited in specific cases.34
30 1967 United Nations Declaration on Territorial Asylum (adopted by the General Assembly of the United Nations on December
1967) UNGA resolution 2312 (XXII)
31 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons,( adopted by the
General Assembly of the United Nations on 14 December 1950, entered into force 25 July 1951) 189 UNTS 137
32 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (n9)
33 1951 Convention relating to the Status of Refugees,( n27) art 1 para 2
34 UN High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, January 1992, available at:
http://www.unhcr.org/refworld/docid/3ae6b3314.html [accessed 5 July 2012]

25
One should also bear in mind that children have specific needs for assistance and
protection, therefore actions and situations that cannot constitute reasons for fear of
prosecution for an adult can be considered as such in the case of children. For instance
the deprivation of their social and economic rights such as access to health care, food or
housing, can be considered violations reaching the level of persecution35
.Therefore, the
Refugee Convention could have been more efficient if “when determinining the status
of the applicant would take into consideration the objective situation as a whole in the
country of origin”36
.Moreover, the fact that the treatment of children refugees is the
same as the one for the adults raises questions as far as the adequacy and
appropriateness is concerned. Children have special needs that very often are different
from those of the adults and therefore their approach and treatment should also be
different. By treating children as adults one can maybe cover their needs as refugees but
completely ignore their needs as children. This approach is in contrast with the position
that “child refugees are children first and refugee second”37
.
ii) Child migrant
As far as the child migrants is concerned, there is no international or regional legislative
framework dealing directly with them38
.
35 J Bhabha And W Young, ‘Not adults in miniature, n(10) 105
36 Kristina Touzenis, ‘Unaccompanied Minors: Rights and protection’ (XL edn Cosmopolis, 2006) 95
37 G. Van Bueren, ‘ The International Law on the Rights of the Child (1st edn, Kluwer Law International, 1998) 44
Eva Nykanen, ‘Protecting Children? n(25) 319

26
Therefore, child migrants can be protected through the general framework of ICCPR
and ICESCR or more frequently under the CRC; the ILO Conventions on
child labour39
.Moreover in some cases child migrants can invoke the UN Protocol
on Trafficking40
as child migrants in an irregular situation very often face the same
problems as the trafficked children. For instance lack of documentation, lack of access
to services, confrontation with the law and law enforcement agents, and increased risks
of exploitation are some of the most common problems41
. In addition to this,
unaccompanied migrant children who entered a country illegally consists a particular
vulnerable group and the danger to become victims of trafficking is high.
3) Concluding remarks
To sum up, one could support that the international framework sets the standards to
provide assistance and care as well as protection to every child including refugees,
migrants and illegal immigrants who temporarily live in a state. The CRC if read in an
holistic way can offer a complete protection in every aspect of a child‘s life.
39 Notably, ILO Convention No. 182 on the worst forms of child labour, 1999 and ILO Convention No. 138 on the minimum age
for admission to employment and work
40 UN General Assembly, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000, available at:
http://www.unhcr.org/refworld/docid/4720706c0.html [accessed 5 July 2012]
41 UNICEF, ‘A Childrights Approach on International Migration and Child Trafficking: A UNICEF Perspective’, (2004) 2
< http://www.un.org/esa/population/meetings/thirdcoord2004/P06_UNICEF.pdf>, accessed 5 July 2012

27
All the rights are interrelated and interdependent and its significance highlighted by the
fact that many international and regional legal instruments use its principles as
guidelines. Nevertheless, even though the Convention has almost universal ratification
and is thus binding for States, this is a far cry from the actual implementation in the
everyday life of children worldwide. Until now its implementation and enforcement is
quite inefficient and problematic. This is so, firstly due to the lack of enforcement
mechanism in international law in general and secondly due to the limited integration of
the international rules in the domestic level. Some proposals for a quick improvement
could be the integration of international rules in a national level as the State is the
primarily duty-bearer for the children who are under its jurisdiction. Moreover, States
should take special care on the unaccompanied children especially those belong in
specific groups such as refugees, asylum seekers and illegal immigrants, when it
implements its asylum policies of law enforcement. It is common phenomenon that
States treat those children in the same way as adults, while their needs are different. In
practice every State must earmark some amount of public budget to create or improve
facilities for unaccompanied children, such as reception centers, health and educational
facilities as well as provide more assistance in fields such as social workers and legal
advisors who are well-aware of their situation and needs. Some States have already
integrated CRC in their national legislations in a quite successful way. Some others are
in the procedure of national changes and there are few which have not taken any
measure to improve children‘s rights. The following chapter is focused to the European
Union framework as far as the unaccompanied children is concerned which is
particularly interesting as one can see the sought of many states to follow a common
policy in consistence with the international standards.

28
CHAPTER 2
European Union policy and legislation towards unaccompanied children
“Europe builds up visible and invisible walls
against people in need of protection, exposing
them to danger, leading them to despair, misery,
and, in many cases, even death”42
1) Introduction
There is no doubt that in the last few years the number of undocumented immigrants
and asylum seekers arriving in European Union has extremely increased. Among them a
significant percentage considered to be unaccompanied minors. This chapter after a
critical examination of the existing regional legislation concerning unaccompanied
children in migration movements, will try to prove that despite the sought for
harmonising Asylum system within EU there are still great disparities among States.
More specifically, the current legal framework concerning immigration and asylum
policy in EU will be examined, with specific reference to Lisbon Treaty43
and the
Stockholm Programme.
42 Greek Council for Refugees, <http://www.gcr.gr/en/node/670> accessed 11 September 2012
43 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (adopted on 13
of December 2007, entered into force 1 of December 2009) 2007/C 306/01

29
Furthermore, a more detailed analysis of the Common European Asylum System and its
efficiency regarding the situation of UAMs will be attempted. Moreover, the chapter
focus in the main EU legal instruments concerning asylum and immigration law that
affects the protection of UAMs. Finally, the chapter, after an examination of case law
and relevant reports result in an evaluation of the existing situation, identifying the gaps
and proposing durable solutions.
2) Towards a Common European Asylum System: Amsterdam, Tampere and
Lisbon
Since 1990 the EU has expanded its role in managing asylum and immigration. A first
step for EU Members to apply core minimum standards in policy areas in relation to
asylum and develop a common position in these issues has been achieved with the
Treaty of Amsterdam(1997)44
and in 1999 the Tampere45
summit proposed a Common
European Asylum policy. The Tampere Program was the first phase of the CEAS that
laid the groundwork for common immigration and asylum policies and established
common rules for family migrants, access to long-term residence.
44 Treaty on European Union (Consolidated Version), Treaty of Amsterdam (adopted 2 October 1997, entered into force 1 May
1999) available at:< http://www.unhcr.org/refworld/docid/3dec906d4.html> , accessed 12 August 2012
45 Tampere European Council 15 and 16 october 1999 on the creation of an area of freedom, security and justice in the European
Union, available at: < http://www.europarl.europa.eu/summits/tam_en.htm
> accessed 12 August 2012

30
The second phase is known as the Hague Program46
(2004 to 2009) which among
others included some significant developments in the sought for establishing a Common
European Asylum System by 2010,such as Frontex47
which was launched in 2005 to
increase cooperation between EU states on managing their external borders. The third
and current phase of CEAS is the Stockholm program48
which similarly aims to increase
cooperation and at the same time promotes some important changes, notably the
protection of unaccompanied children in the immigration and asylum portfolio. Finally,
when it comes to European legislation and policy in the areas of asylum and
immigration, one should bear in mind the importance of the Lisbon Treaty. The Lisbon
Treaty, which entered into force in December 2009, changes the EU in many aspects. In
contrast with the Amsterdam Treaty which adopted minimum standards, the Lisbon
Treaty widens EU‘s competences by moving further from the simple cooperation of
Member States to the development of common policy with uniform standards.
Moreover the Treaty establishes subsidiary and temporary protection when the
conditions for granting asylum are not met as well as removes the limitations in the
46 The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, (adopted 5 November 2004,
entered into force 13 December 2004) 2005/C 53/01. The Hague Programme developed a policy plan for economic migration, and a
range of mechanisms for exchanging information on integration policy as well as the program highlighted the importance of
cooperation with third countries.
47 The European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the
European Union was established by Council Regulation (EC) 2007/2004/ (26.10.2004, OJ L 349/25.11.2004) having regard to
theTreaty establishing the European Community.
48 Time to Show Your Cards: The Need for a Genuine Commitment to Establish a Common European Asylum System Based on
High Standards of Protection - ECRE's Recommendations for the Stockholm Programme, September 2009
<http://www.unhcr.org/refworld/docid/4aa125002.html>
, accessed 12 August 2012

31
Treaty of Amsterdam, which effectively prevented immigration cases being brought
before the ECJ until they had been taken to the highest court in the Member State
concerned. Last but not least the Treaty of Lisbon also gave full legal effect to the
Charter of Fundamental Rights of the European Union, which enshrines political, social
and economic rights49
. As far as the protection of UAMs is concerned it seems that until
recently their special needs and rights were not taken under particular consideration.The
Lisbon Treaty placed the rights of the child at the forefront of the EU agenda. The
Treaty as well as the Charter of Fundamental Rights of the European Union which is
incorporated in the Lisbon Treaty includes references on the principles of the CRC.
Specifically, article 3 para. 3 of the Treaty of the European Union50
includes reference
in the protection of the rights of the child whilst Art. 24 of the Charter includes the
principle of BIC. Other articles are also referred to the right to education, equality and
non-discrimination51
. This framework provides a basis for the EU to implement
effective measures to ensure that children’s rights, including the BIC, are taken into
account or mainstreamed in all relevant policy areas. However neither the Charter nor
the Lisbon Treaty confer a competence on the EU as a general policy area rather
imposes upon the EU the obligation to promote the protection of the rights of the child
49 Charter of Fundamental Rights of the European Union (adopted 7 December 2000, entered into force 18 December 2000)
available at: < http://www.unhcr.org/refworld/docid/3ae6b3b70.html > ,accessed 12 August 2012
50 Treaty of Lisbon (n43) art 3
“The Union shall combat social exclusion and discrimination, and shall promote social justice and
protection, equality between women and men, solidarity between generations and protection of the rights of the child...”
51 Charter of Fundamental Rights (n49) art 24

32
when it exercises its competences52
. Finally, the increasing interest of EU for UAMs
became obvious when the European Parliament, in its resolution of 25 November 2009
on the Stockholm Programme reaffirmed the Union’s obligation to protect the “‘most
vulnerable groups” including UAMs. The Commission Action Plan on Unaccompanied
Minors 2010— 2014 stresses the need for greater coherence and more cooperation
within the EU which ‘should be based on the respect for the rights of the child as set out
in the EU Charter of Fundamental Rights and the CRC, in particular the principle of
‘the best interests of the child’ which must be the primary consideration in all action
related to children taken by public authorities” 53
. The Action Plan proposes an EU
approach based on three main strands: prevention of unsafe migration and trafficking,
reception and procedural guarantees and identification of durable solutions54
.However it
is not limited in those pillars but discusses also other challenges such as age assessment
and family tracing, international protection status, other legal status and integration of
UAMs, return to and reintegration in the country of origin, resettlement, procedures at
first encounter and standards of protection; protection programmes in third countries55
.
52 Directorate General for Internal Policies Policy Department C: citizens' rights and constitutional affairs, “EU Framework of Law
for Children‘s Rights”, < http://www.statewatch.org/news/2012/apr/ep-study-childrens-rights.pdf> 20, accessed 12 August 2012
53 Communication from the Commission to the European Parliament and the Council. Action Plan on Unaccompanied Minors
(2010 - 2014), (adopted and entered into force 6 May 2010) COM (2010) 213/3
54 see Action plan (n53)
55 International Organization for Migration (December 2011), ‘Unaccompanied Minor Asylum-seekers: Overview of Protection,
Assistance and Promising Practices’ p 19 available on line: < http://www.iom.hu/PDF/Unaccompanied_Minors_Asylum-
seekers_Overview_of_Protection_Assistance_and_Promising_Practices.pdf>, accessed 12 August 2012

33
3) Current EU legislation
i) Council Resolution of 1997 on unaccompanied minors who are nationals of third
countries (97/C 221/03). 56
Having said all that, one would think that UAMs are well protected. However, this is
not the case, as there is only one EU legal instrument specifically addressing to the
protection of UAMs — Council Resolution of 1997 on unaccompanied minors who are
nationals of third countries. The Resolution has no binding force but one should not
underestimate its influence. Apparently the EU sees it as a referencing point in the
development of the subsequent legislation in the framework of CEAS57
.The purpose of
the Resolution is to establish a set of guidelines for the treatment of UAMs. Surprisingly
the second Article emphasizes the right of Member States to decide who they want to
their territory and who they do not want by giving them the right to take measures in
order to prevent unauthorized entry of UAMs into the EU. This article is a characteristic
example of the securitarian approach that EU follows in the field of asylum and
immigration. As Kristina Touzenis referred:“EU focuses less on prevention and
exploitation and more on security and prevention of irregular migration”58
. It is true that
States have the right to control their boundaries but in this case the article is in contrast
56 Council Resolution of 26 June 1997 on unaccompanied minors who are nationals of third countries, available on line: <
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997Y0719(02):EN:NOT> , accessed 12 August 2012
57 Kristina Touzenis, (n36) 43
58 Kristina Touzenis, (n36) 39

34
both with the UNCRC Guidelines on Unaccompanied Children59
and the CRC itself.
According to the Guidelines the BIC should always apply in case of children and thus
UAMs should be allowed into the territory even without legal documentation as very
often identity papers may have been lost, forged or destroyed or may never have existed
especially in cases of fleeing the country of origin to escape war or violent regimes.
Thus this article raises questions about its compliance with international human rights
law as well as its efficiency given the fact that states have discretionary power to decide.
Moving further, the next two articles are referred to a number of minimum guarantees
which should be applied to unaccompanied minors such as the appointments with
guardians, the need to provide the children with basic care, including health care. In
addition to this, the Resolution refers that the cases of unaccompanied minors regarding
asylum procedures should be treated as a priority and that interviews to UAMs should
be realized by trained officers. Finally, there are provisions regarding the return of
UAMs in their country of origin or family reunion. The 1997 Resolution is surely an
important step for EU as it recognizes the rights of UAMs as separate vulnerable group
however it still provides a weak protection and its implementation is not so efficient.
Many issues remain open such as the detention of UAMs once they arrive in the
territory of a State which under CRC in is not permitted but in the Resolution there is no
such reference or the legal representation of UAMs once they arrive. Although the right
of representation is recognized, the specific procedures and responsibilities are left to
the State‘s discretion.
59 UN High Commissioner for Refugees, (n3) 8

35
ii) The main EU Directives and their impact on unaccompanied minors
In a sought to harmonize its policies, the EU Council has adopted a number of
Directives addressing the problem of immigration and asylum crisis. Some of these
Directives include provisions specifically referred to unaccompanied minors. All of
them urge that the fundamental principle is that the best interests of the child shall be a
primary consideration for Member States when implementing relevant provisions that
involve minors. An analysis of the most important relevant provisions regarding the
situation of UAMs follows.
The Reception Conditions Directive60
lays down minimum standards for the reception
of asylum seekers in Member States and covers areas such as education, health care,
accommodation and access to the labour market and vocational training. Art 19 requires
from Member States to ensure representation of the unaccompanied minor by
appointing a legal guardian or any other appropriate representation. This requirement is
surely a positive step but it is undermined with the reference in “any other appropriate
representation”61
. Another provision states that unaccompanied minors should be placed
with adult relatives, with a foster family, in reception centres with special provisions for
minors or in other suitable accommodation. However it is worrying the fact that UAMs
aged 16 or over may be placed with adults.
60 Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers,
available on line: < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0009:EN:NOT> accessed
August 2012
61 Council Directive 2003/9/EC (n60) art 19

36
It is ambiguous how the children‘s needs can be met adequately62
and the provision is in
contrast with the Statement of Good Practice63
and potentially article 37 of the CRC.
Furthermore, it requires from States a hard effort to trace the family members of UAMs
with due regard on their safety as well as ensure that those working with UAMs shall
have had or receive the appropriate training .In the same spirit, the Temporary
Protection Directive64
gives temporary protection in the event of a mass influx of
displaced persons and establishes minimum standards. Additionally, the Asylum
Procedures Directive65
serves to establish minimum standards on procedures in
Member States for granting or withdrawing refugee status. Once more the need for
representation in every stage of the asylum procedure and the BIC are highlighted.
Comparable provisions can also be found in the Qualification Directive66
.
62 Hans E Andersson, Henry Ascher, Ulla Björnberg, Marita Eastmond and Lotta Mellander(eds), ‘The Asylum-seeking Child in
Europe’ (1st edn, Centre for European Research at Göteborg University, 2005) 41
63 Separated Children in Europe Programme ‘SCEP. Statement of Good Practice, Separated Children in Europe Pogramme’ (4th
edn, March 2010)
64 Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass
influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and
bearing the consequences thereof, <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0055:EN:NOT>
accessed August 2012
65 Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting
and withdrawing refugee status, (adopted 1 December 2005, entered into force 2 February 2006) <http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32005L0085:EN:NOT>, accessed 12 August 2012
66 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country
nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the
protection granted,(adopted 29 March 2004, entered into force 20 October 2004) <http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:NOT> accessed 12 August 2012

37
Moving further, The Dublin II Regulation67
is probably the most controversial legal
instrument. Art 6 states that: Where the applicant for asylum is an unaccompanied
minor, the Member State responsible for examining the application shall be that where
a member of his or her family is legally present, provided that this is in the best interest
of the minor. In the absence of a family member, the Member State responsible for
examining the application shall be that where the minor has lodged his or her
application for asylum. One of the major flaws of the Regulation is that it gives a very
narrow definition of the family unit, including only parents and siblings. This strict
definition does not take into account the cultural differences and the importance of
extended family for some countries. Moreover it fails to appreciate the harsh realities of
life for many unaccompanied children, who had to grow up with people others than
their immediate family because their parents may be dead, missing or imprisoned68
.
Additionally, a reason for criticism is that Article 6 does not explicitly require a “best
interest” determination in all transfers involving unaccompanied minors and very often
while the governments try to establish the country that has jurisdiction on the asylum
application the child left in a “legal limbo” situation deprived from basic human
rights69
.
67 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the
Member State responsible for examining an asylum application lodged in one of the Member States by a third-country
national, (adopted 18 February 2003, entered into force 17 March 2003) < http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R0343:EN:NOT> accessed 12 August 2012
68 The Asylum-seeking Child in Europe’ n(62) 42
69 Annamaria Enenajor, ‘Rethinking Vulnerability: European Asylum Policy Harmonization and Unaccompanied Asylum Seeking
Minors’ < http://www.childhoodstoday.org/download.php?id=17> 17

38
As the Save the Children says ‘the complex Dublin II system allows Member States to
transport asylum seekers around the continent in ways that may arguably increase the
vulnerability of children subject to these procedures’70
.At 2000 EU in order to follow up
the Dublin Regulation, adopted the Eurodac system71
. This is an information
technology system for comparing the fingerprints of asylum seekers and other irregular
migrants in order to prevent the lodging of multiple applications. According to this
regulation, all applicants over 14 are to be fingerprinted72
and their information can be
stored for up to 10 years 73
.It is ambiguous if this system works for the best interest of
the child. On the contrary it probably creates the feeling of being criminals and even
more stress in this vulnerable group.
Another important instrument is the Directive on Family Reunification74
as it
determines the conditions for the exercise of the right to family reunification by third-
country nationals residing lawfully in the territory of the Member States. Art 10 requires
from Member States to authorise the entry and residence of his/her first-degree relatives
70 Save the Children 2006, the implementation of the Dublin II Regulation and the Best Interests of Separated Children .Separated
Children in Europe Programme
71 Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of 'Eurodac' for the comparison of
fingerprints for the effective application of the Dublin Convention (adopted 11 December 2000, entered into force 15 December
2005) < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32000R2725:EN:HTML> accessed 12 August 2012
72 Eurodac Regulation (n71) art 11
73 Eurodac Regulation (n71) art 6
74 Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification, (adopted 3 March 2003, entered into
force 3 October 2003) < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003L0086:EN:NOT> accessed 12
August 2012

39
in the direct ascending line and may authorise the entry and residence of his/her legal
guardian or any other member of the family, if the refugee has no relatives in the direct
ascending line or they cannot be traced. One more time the narrow definition of family
make the provision irrelevant and without practical implementation in many cases.
Furthermore there are restricted rights for children over 15 years old who may have to
demonstrate that they are dependent upon their parents and unable to live alone or
support themselves as well as the provision to submit children over 12 years old to an
integration interview. The fact that the directive allows Member States to derogate from
defining children as being under 18, ‘creates a real danger of breaching international
law’75
. (1 CRC, 8 ECHR). The return directive76
sets out common standards and
procedures to be applied in Member States for returning, illegally staying third-country
nationals. The directive prohibits Member States to remove an unaccompanied minor as
long as there is no assurance that he / she can be handed over at the point of departure or
upon arrival to a family member, an equivalent representative, a guardian of the minor
or a competent official of the country of return. It is also proposed that minors shall not
be kept in temporary custody in common prison accommodation and that UAMs shall
only be detained as a measure of last resort and for the shortest appropriate period of
time. As far as possible, UAMs should be given accommodation in institutions provided
with personnel and facilities which take into account the needs of persons of their age.
75 Kristina Touzenis,(n36) 50
76 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying third-country nationals, ( adopted 16 December 2008, entered into force
13 January 2009) < http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32008L0115:EN:NOT> accessed 12 August
2012

40
iii) European Convention on Human Rights and Fundamental Freedoms 77
Some protection can also be found in the ECHR as well as the Chapter of the
Fundamental Rights of the EU through the art 24. The ECHR, even though it does not
contain any direct provision on immigration, provides asylum seekers in Europe with a
minimum standard framework of protection. It does so by applying various articles in
cases where there is no specific national law such as the case of Soering v UK 78
where
the European Court of Human Rights implemented art 3 in order to prevent a failed
asylum seeker from being returned to his country and being subject to inhuman and
degrading treatment. Another example where the European Court provided effective
protection was the Chalal Case79
where the Court found that the return of the applicant
to his country of origin would constitute a breach of Article 3.The Court took into
account the general human rights situation in the country of origin solving the problem
of proving that the risk of ill-treatment is individual. However it is unfortunate that the
Court does not seem to take a consistent approach and there are examples that the
decisions were disappointing such as in the Nsona v. the Netherlands80
case.
77 The European Convention on Human Rights and Fundamental Freedoms, (adopted on 4 November 1950, entered into force on 3
September 1953) 213 U.N.T.S. 222
78 Soering v. the United Kingdom App no 14038/88 (ECtHR, 7July 1989)
79 Chahal v. the United Kingdom App no. 70/1995/576/662 (ECtHR, 11 November 1996)
80 Nsona v. the Netherlands App no 23366/94 (ECtHR, 28 November 1996) In this one, a nine-year-old child to the Netherlands
was refused access, was separated from only known person willing to take care of her and was send back to her country of origin
under conditions well-worth criticizing.

41
The Court made no reference to the best interests of the child, raising serious questions
about the applicability of the principle in the areas of migration and international
protection in the context of the ECHR81
.Finally the case law of the European Court of
Human Rights involving children is relatively scarce and with limited scope extending
in areas such as the family or return to the country of origin. Even though there are
some good examples, the approach that the Court had adopted leaves a wide margin of
appreciation for national authorities.
4) Concluding remarks
The preceding analysis showed that even if some positive measures do exist, there is
still a long way to go as far as the protection of UAMs in EU is concerned. Within EU
there is a culture where paramount importance is given to immigration control rather
than the protection of the child. Even though the aim of the EU Directives and
Regulations is to harmonize policy in this area there is still a lack of consistency from
country to country. The legislative framework, in its greater part, includes references to
children and their rights. However this protection is relatively weak and falls short of
international standards. This is obvious if one considers the implementation of the best
interests’ principle. Although there are references about the best interest principle in
every instrument, in practice very often decisions are made without taking into
consideration the best interest of the child or its own opinion. Furthermore significant
gaps remain with regard to specific provisions such as the family reunification where
the narrow definition of family unit makes the family reunification impossible for many
81 Eva Nykanen, (n25) 338

42
children. Finally another gap in the EU legislation is the limited consideration for
UAMs who do not apply for asylum or international protection and thus they left to
survive deprived of basic human rights.
Overall, the problem is found in the EU approach which is is restrictive and securitarian
and does not actually guarantee the protection of human rights of vulnerable groups
such as unaccompanied children.However the solution cannot be found within this
framework. It is sure that as far as there are wars, poverty and violations of human
rights in many countries, even more people-refugees, asylum seekers, and immigrants-
will migrate as a means to survive or to find a better life. Hopefully, there is still time
for improvements. A positive element is that six key EU legal instruments concerning
asylum and immigration law are under revision (the Long-term Residents Directive, the
Reception Conditions Directive, the Qualification Directive, the Asylum Procedures
Directive, the Dublin II Regulation, and the Eurodac regulation). It is important that
politicians will adopt a more humanitarian, child-rights approach, addressing problems
such as UAM detention, expedited removal and risk of exploitation by smugglers and
traffickers and filling the gaps of the existing legislation.

43
CHAPTER 3
The protection of UAMs under the Greek Legislation
1) Introduction
This chapter is the first part of the broader section which examines the situation of
UAMs in Greece. Hereby, an analysis of the existing legal framework regarding the
situation of UAMs is attempted with references in specific provisions of asylum laws.
More specifically the chapter is referred in a number of Presidential Decrees which
integrate the most important European Directives into the national system as well as to
the Greek Action Plan82
and the new law 3907/201183
.At the end of the chapter an
evaluation of the existing legal framework is provided, highlighting the gaps and
proposing possible improvements.
2) Existing legislation
To begin with, there are a number of provisions and national texts that are referred in
the special protection of children and the principle of best interest of the child, as this
82 National Action Plan for the management of migration flows submitted August 2012 in the European Commission
83 Law 3907/2011 on the establishment of an Asylum Service and a First Reception Service, transposition into Greek legislation of
the provisions of Directive 2008/115/EC, Official Gazette of the Hellenic Republic, Volume A’, Number 7, 26 January 2011

44
in article 21 para 1,384
is explicitly referred to childhood’s protection, including not only
nationals but also every child in its territory. Furthermore unaccompanied minors from
third countries are protected by the general provisions on minors. Such provisions are
those contained in the Civil Code as well as the Criminal Code and the Code of
Criminal Procedures. Importantly protection can also be found in the alien’s legislation
dealing with immigration issues. As it was analysed in the first chapter of this thesis, the
most complete legal text regarding the protection of children is the Convention of the
Rights of the Child. Greece had ratified the Convention by virtue of law 2101/199285
and committed to implement its provisions. However until now the only provisions
protected UAMs in Greece can be found in the asylum legislation.
i) Towards an harmonization with the Common European Asylum System
As it was referred in the previous chapter, EU adopted many Directives and Regulations
in order to harmonize the asylum system in Europe and create a Common European
Asylum Policy. However Since 2007 asylum legislation in Greece in general and
provisions for UAMs in particular were limited. In fact the Greek asylum system was
far from compliant with the international and European Union standards. The landscape
changed with the transportation of the main EU asylum directives through Presidential
84 The Constitution of Greece, available on line < http://www.hri.org/MFA/syntagma/>, accessed 20 August 2012
85 law 2101/1992, (Official Gazette of the Hellenic Republic, A’ 192.02.12.1992)

45
Decrees 220/200786
, 96/200887
and PD 90/200888
(as amended by the PD 81/2009)89
.
Among them, P.D 220/2007 includes the most important provisions for UAMs. It has
transposed the Reception Conditions Directive into the Greek legal system and
recognizes rights such as free medical treatment, adequate material conditions in the
reception centres and education. More importantly the PD includes special provisions
for the care of unaccompanied minors and members of vulnerable groups such as
victims of torture. Articles 18 and 19 apply specifically to minors, highlighting the best
interest principle. Art 19 paragraph 1 stresses the need for effective representation of
UAMs by setting immediately after the entry a temporary guardian. In fact the Public
Prosecutor for minors is informed or if such does not exist, the territorially competent
First Instance Public Prosecutor is informed and acts as a temporary guardian of the
minor, taking the necessary steps for the appointment of a guardian of a minor.
86 Presidential decree 220/2007 on <<adapting the provisions of Council Directive 2003/9/EC of 27 January 2003 into Greek
Legislation, on minimum standards for the reception of asylum seekers in Member States>> Official Gazette of the Hellenic
Republic, Volume first, Number 251, 13 November 2007
87 Presidential decree 96/2008 on << adapting the provisions of Council Directive 2004/83/EC of 29 April 2004 into Greek
Legislation, on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the protection needed >>, Official Gazette of the Hellenic
Republic, Volume first, Number 152, 2008
88 Presidential decree 90/2008 on<< adapting the provisions of Council Directive 2005/85/EC of 1 December 2004 into Greek
Legislation, on minimum standards on procedures in Member States for granting and withdrawing refugee status>>, Official
Gazette of the Hellenic Republic, Volume first, Number 138, 2008
89 Presidential Decree (P.D.) 81/2009 amending Presidential Decree 90/2008, Official Gazette of the Hellenic Republic, Volume
first, Number 99, 30 June 2009.

46
An important advance is that the PD provides more safeguards as the guardianship is
extended to UAMs even before they apply for asylum meaning that the provision covers
both UAMs who apply for asylum and those who do not. However in practice the
system does not work efficiently and in the majority of the cases UAMs do not receive
any assistance. In the same article one can found provisions requiring appropriate
measures for suitable care and accommodation for UAMs as well as the tracing of the
minor’s family. Moreover, article 9 provides access to education for minor asylum
seekers in the same way as the Greek nationals. Last but not least, the PD stresses in
article 8, that applicants undergo medical screening only if it is considered necessary in
order to ascertain that they are not suffering from any dangerous disease. Furthermore
according to articles 12 and 14 applicants can also receive free medical care on
condition that they do not have social security and are financially destitute. Finally,
article 14 explicitly refers that applicants with special needs of vulnerable groups,
including minors, can receive specialized medical care. This can be read in conjunction
with article 18 para.2 whereby minors, victims of torture or other forms of violence,
must be given adequate psychological care and specialized treatment, if needed.
Moving further, the PD 96/2008 includes similar provision with PD 220/2007. It
highlights the best interest principle (art 20 para 3) as well as the right in education (art
27). It also stresses the measures that the State has to take in order to provide suitable
representation (art 30 para 1) as well suitable accommodation for minors (art 30 para 3).
The Asylum Procedures Directive transported in Greece through the PD 90/2008 which
later amended by the PD 81/2009. However the last PD was repealed and the PD

47
90/2008 replaced by the PD 114/201090
.As far as the UAMs is concerned, article 4
para.3 and 4 of the 114/2010 PD sets out the conditions that an unaccompanied child
can lodge an asylum application while art. 12 deals exclusively to applications lodged
by UAMs. It states that authorities, having due regard to the best interest of the child
(para.6) shall take action according to paragraph 1 of article 19 of Presidential Decree
220/2007 in order to appoint a guardian for the minor.91
Furthermore, para. 2,
highlights the priority in the examination of asylum applications lodged by UAMs and
para. 3 stresses the need for specialized officials in order to conduct the interviews.
Moreover, para. 4and 5 give the right to the competent authorities use medical
examinations in order to determine the age of unaccompanied minors under specific
conditions. Finally article 13 recommends that UAMs should be detained only for the
necessary time until they move to suitable accommodation specifically for minors.(para
6,b).There is also more legislation including useful provisions such as, Presidential
Decree 61/199992
, PD 189/199893
,
90 Presidential Decree (P.D) 114/2010 on the establishment of a single procedure for granting the status of refugee or of beneficiary
of subsidiary protection to aliens or to stateless persons in conformity with Council Directive 2005/85/EC, Official Gazette of the
Hellenic Republic, Volume first, Number 195, 22 November 2010
91 Presidential Decree (P.D) 114/2010 n(90) article 12 para 1
92 Presidential Decree 61/1999 on Refugee Status Recognition Procedure, Revocation of the Recognition and Deportation of an
Alien, Entry Permission for the Members of his Family and Mode of Cooperation with the United Nations High Commissioner for
Refugees, Official Gazette No. 63(A) 6 April 1999
93 Presidential Decree No. 189/1998, Conditions and Procedures for the Grant of a Work Permit or Any Other Assistance for
Occupational Rehabilitation to Refugees Recognized by the State, to Asylum Seekers and to Temporary Residents on Humanitarian
Grounds, Official Gazette A'140 on 25 June 1998

48
PD 131/200694
, Law 3386/200595
and Law 1996/199196
.
ii) The Greek Action Plan
Despite the existence of Precedential Decrees, the asylum system in Greece remained
dysfunctional in practice and had received sharp criticism not only from the European
Commission but also from UNHRC and other organizations. In order to improve its
asylum system Greece on August 2010 submitted a National Action Plan for the
management of migration flows in the European Commission. The Greek Plan
composes into a single strategic framework the initiatives of the Greek Government on
issues of first reception, access to asylum procedures, detention centers and returns. It
also includes initiatives to protect vulnerable groups, in cooperation with the Ministry of
Health. The Greek Plan foresee changes in both the legislative and practical level
regarding the way Greece is confronting the asylum and immigration issues. Within this
framework the PD 114/2010 was adopted in order to determine the transition process
for asylum in Greece. Among others, the new Decree 114/2010 paved the way to
94 Presidential Decree 131/2006 on Harmonization of Greek legislation to Directive 2003/86/EC on the right to family
reunification, Official Gazette No. 143(A), 2006
95Codification of Legislation on the Entry, Residence and Social Integration of Third Country Nationals on Greek Territory, Law
3386/2005 (Government Gazette-GG A 212), as amended by Laws 3448/2006 (GG A 57),3536/2007 (GG A 42), 3613/2007 (GG A
263), 3731/2008 (GG A 263), 3772/2009 (GG A 112) and 3801/2009 (GG Ȱ 163)
96 Law 1996/1991, Convention determining the State Responsible for Examining an Application for Asylum Lodged in one of the
Member States of the European Communities (OG A 196).It was constituted according to the Dublin Convention, posing the first
country of E.U to have been entered by a third-country national as responsible for examining the respective asylum application.

49
reconstruct and improve the functioning of the Appeals Committee and decentralized
bodies in the first instance examination of asylum applications in 14 police departments
in the country. In January 2011, a new law (3907/2011) was adopted on the
establishment of a new asylum service, the setting up of screening centres and the
transposition of the so-called EU return directive. The European Asylum Support Office
(EASO) 97
is assisting Greece in implementing the Action Plan, in particular through the
deployment of asylum support teams. The first deployment of an EU asylum support
team has already taken place in Greece. On 1 April 2011, the EASO Executive Director
and the Greek Minister of Citizen Protection signed an Operating Plan which foresees
the deployment of 23 teams to Greece (around 40–50 experts from EU Member States)
over a two-year period. They will provide assistance on areas including training,
screening, backlog management and general management of asylum and reception
facilities, expertise on vulnerable groups and IT expertise. The new Law provides for
the creation of an independent Office of Asylum as well as a new initial reception
service which will enhance access to asylum procedures through identification and
referral at border points. Initial reception centres would inform third country nationals
of their legal rights as well as their right to request asylum. They can have their claim
registered at the centre and be referred for examination by the regionally competent
97 Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum
Support Office, L132/11 [EASO Regulation].EASO was established in order to “help to improve the implementation of the
Common European Asylum System, to strengthen practical cooperation among Member States on asylum and to provide and/or
coordinate the provision of operational support to Member States subject to particular pressure on their asylum and reception
systems”

50
authority. The new asylum service would be responsible for registering asylum claims
of those who have not undergone first reception procedures. There are plenty of the
provisions of the 3907/2011 Law that are referred to UAMs. First and foremost UAMs,
as vulnerable groups 98
should be separated during the procedures of first reception and
be referred to the competent body of social support or protection99
. Their special
treatment during the procedures is also obvious in the article 13(para 3d). Of major
importance is the article 20 which highlight, the best interest principle, the protection of
family life and the respect in the principle of non-refoulement. Furthermore, as far as
the return of the UAMs is concerned, article 25 states that decision for return an
unaccompanied child should always be for its best interest and appropriate assistance
should be provided by appropriate bodies. It also stresses that the child should be
returned only if there is a member of his or her family, a nominated guardian or
adequate reception facilities in the State of return100
. However although this provision
is positive step, there are doubts whether return to adequate reception facilities is for
the child’s best interest and whether this principle is taken under consideration in
practice. Moving further, there provisions dealing with specific rights of UAMs during
the period pending for return. More specifically, article 29 promotes family unity (a)
and takes into account the special needs of vulnerable groups (d). Moreover, it provides
access on education for minors and access to emergency health care and treatment under
specific law.
98 Law 3907/2011 n(83) art 18 para i
99 Law 3907/2011 n(83) art 11 para 2a
100 Law 3907/2011 n(83) art 25 para 2

51
Last but not least, article 32 sets out the conditions under which the minors can be
detained. In fact, minors shall only be detained as a measure of last resort and for the
shortest period of time (para 1). Regarding UAMs paragraph 4 recommends that they
should be provided with accommodation and staff that take into account their special
needs as well as para.5 highlights once more the importance of the best interest
principle with specific regard to minors who are pending removal.
3) CONCLUSION
Despite the sought of Greek Government to improve the asylum system in general and
the situation of UAMs in particular, there is still a long way for Greece to reach the
international and European standards. While the legislative framework is in place, in
practice it is hardly implemented. The last few years under the pressure of EU for
harmonizing its asylum policies, Greece has made some progress and adopted some
positive measures such as the new law 3397/2011 but the lack of the financial means
to set up, equip, train and operate the system continue to pose significant challenges to
its implementation. Greek law has a major flaw as it does not explicitly prohibit
detention of UAMs, breaching this way the international legislation. Finally, changes
might be needed as far as the provisions for guardianship is concerned as the current
legislation does not provide children with the appropriate assistance. In the next chapter
an analysis of the existing situation in practice, based in reports, interviews and case
law, will provide a more comprehensive view over this matter.

52
CHAPTER 4
Unaccompanied children in Greece: a store of human souls
1) Introduction
On 21 of September 2010, UNHRC spokesperson Adrian Edwards said that asylum
situation in Greece is a ‘humanitarian crisis’101
. Since then few improvements have been
performed. Greece‘s plan to implement a new far-reaching reform on its asylum system
has already started to be implemented, though with slow pace and without the results
expected.
In this chapter, the current situation regarding unaccompanied children in Greece will
be analyzed. The development of a comprehensive understanding over this issue is
attempted through many reports of NGOs, refuge organizations in Greece and UNCHR
as well as case law concerning Greece. The research is enriched by interviews of people
who work in this field, such as lawyers in NGOs, social workers, port officials and
academics. The chapter is referred to the entry procedures and the access to asylum for
UAMs as well as to the reception arrangements and integration measures. More
specifically it will provide an analysis of the situation regarding guardianship,
accommodation, age assessment, detention, family tracing and family reunification as
well as access to social protection, namely accommodation, healthcare, education and
101 “UNHCR Says Asylum Situation in Greece ‘A Humanitarian Crisis,” UNHCR Briefing Notes, September 21, 2010,
http://www.unhcr.org/4c98a0ac9.html (accessed March 22, 2010).

53
employment. Moreover, the chapter will refer to the return practices followed by the
Greek government and to the problematic issues Greece faces with regard to the Dublin
Regulation system. Besides, an approach to the problem of racist violence against third-
world nationals which has currently being driven to extremes will be attempted. Finally
the chapter will draw to a conclusion proving that the situation in Greece urgently needs
reforms highlighting at the same time the problems in the existing system.
2) Access to asylum
i) Points of entry
To begin with, access to asylum includes both access to the territory and access to
asylum procedure. As far as the access to the Greek territory is concerned it has to be
noted that Greece, due to its geographical position, is one of the main entry points to
Europe for third country nationals. Every day hundreds of illegal immigrants, both
asylum seekers and migrants, try to cross the borders either by land in the Evros region
or by sea through the Aegean Sea. Among them a significant percentage consists of
unaccompanied children. The route is very dangerous and very often fatal for illegal
immigrants. Unfortunately a significant number of immigrants have drowned in the
Aegean Sea waters and among them many children102
.
102 1 ‘Dozens dead after Turkey migrant boat sinks’BBC (London,6 September 2012) < http://www.bbc.co.uk/news/world-europe-
19506379> accessed 9 September 2012
2 Human Rights Watch, ‘EU:Step up Rescues to Save Lives, Migrant Deaths off Turkey, Italy Coasts Should Trigger Action’ (7
September 2012) < http://www.hrw.org/news/2012/09/07/eu-step-sea-rescues-save-lives> accessed 9 September 201

54
It is remarkable that in almost every report children stressed that crossing the borders
between Turkey and Greece was the most difficult part of their journey and many of
them appeared to be traumatized by this experience103
.
ii) Asylum procedures and Refugee Status Determination
In relation to the access to the asylum procedure, once UAMs arrive, the authorities
have to identify if the child is actually under 18 and if they are actually unaccompanied.
In any case once an unaccompanied child is identified the authorities should ensure as
soon as possible a temporal guardian. After their apprehension UAMs should be
informed about their right to seek asylum in a language that they understand and be
interviewed about their situation. According to the new law 3907/2011 there should be
initial reception centers in the borders which would be responsible for screening and
identifying vulnerable groups such as UAMs, providing appropriate accommodation for
their needs .In practice, due to the lack of initial reception centres, once a child enters in
Greece illegally (without legal documents), the border authorities just record the basic
data such as name, father’s name, country of origin and age104
. Minors are rarely
informed about their right to seek asylum as well as in their rights in general. There are
no specialized reception centres in the borders to receive these children and no
specialized staff to examine their claims for protection. Finally, there is no interpreter
103 UNHCR, ‘Voices of Afghan Children- A study on Asylum- seeking children in Sweden’,(Stockholm, June 2010) 36
104 Human Rights Watch, ‘Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece’ (2008) 19

55
except some compatriots, who unofficially help with translation.
Regarding guardianship, the system is dysfunctional as the Prosecutor, even if he/she is
informed about the children, rarely takes care of the child’s best interest. In most cases
asylum seekers who cross the borders are imprisoned or detained in detention centres
under police supervision, for illegal entry to the country and a deportation order is
issued for those who do not ask for asylum105
. Asylum seekers are entitled to lodge their
application at any time during their stay in the country but in fact UAMs in Greece face
significant difficulties as the refugee status determination (RSD) system in Greece lacks
the necessary procedural safeguards106
, required by international law, to ensure the
correct identification of those in need of international protection, and to prevent
violation of the principle of non refoulement. Therefore access to asylum procedure is
not guaranteed for asylum seekers as the lack of interpreters, information and legal aid
in conjunction with the lack of essential procedural guarantees107
, result in a completely
inoperative system and discourages people in need of international protection to seek for
asylum in Greece. The treatment of UAMs does not seem to be different from the other
illegal entries. The fact that police and coast guard authorities in Greece, in principle,
are not trained to deal with vulnerable cases, such as unaccompanied minors, creates
105 Human Rights Watch (n104) 53
106 a fair and efficient asylum procedure would require the prompt receipt and registration of claims by the responsible authorities,
the provision of adequate interpretation and legal services, a comprehensive interview of the asylum-applicant, an assessment,
comprising both legal and country of origin information and the issuance of decisions which are fully reasoned
107 such as the lack of qualified interpretation during interviews, poor quality of interviews and interview records and poor
quality of decisions as well as extremely low recognition rates

56
a number of difficulties for the authorities and the unaccompanied minor is most likely
treated as an adult108
. In addition to this, the lack of interpreters and specialized staff
responsible for the interview as well as the difficulty for the appointment of a guardian
form serious obstacles for UAMs109
. Another problem that UAMs are facing during the
asylum procedures is the failure of the asylum system to provide free legal assistance.
Only a few NGOs provide for a free legal advice and representation of asylum
seekers110
. Last but not least, the fact that almost no positive decision was adopted in the
first instance degree as far as the asylum application of UAMs is concerned is a matter
of concern111
.
This dysfunctional system results in a situation where applicants continue living in
insecurity and uncertainty without being able to exercise their rights for long periods
and there are also decisions112
that reaffirm these deficiencies. More specifically, the
108 European Migration Network, ‘Policies on Reception, Return and Integration arrangements for, and numbers of,
Unaccompanied Minors– an EU comparative study produced by the European Migration Network’ MEMO/10/169, May 2010 52
109 National legislation stresses the obligation for the appointment of a guardian in order to represent the child in the interview and
provides for specialized staff to contact the interviews (PD 90/2008 art 12). Moreover there is the provision that asylum application
of UAMs should be examined in priority and that UAMs will be informed about their rights.
110 1 Most legal aid services are provided by three NGOs and a network of pro bono lawyers, and primarily in Athens: The Greek
Council for Refugees, the Ecumenical Refugee Program, the Hellenic Red Cross, and the Group of Lawyers for the Rights of
Refugees and Migrants.
2 Article 11 of the PD 90/2008 provides for the right to consult a lawyer at their own expense
111 European Migration Network, ‘GREECE National Report on Unaccompanied Minors (EN Version)’, 4 December 2009 20
112 4055/2008 and 4056/2008. Both decisions are in Greek, available in hard copy

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