Separated children seeking asylum - with focus on the evidentiary assessment within Swedish refugee law.

University essay from Lunds universitet/Juridiska institutionen

Author: Stina Lempert; [2003]

Keywords: Folkrätt; Law and Political Science;

Abstract: Separated children are children under 18, who are outside their country of origin and have been separated from their parents, or other previous legal/customary primary caregiver. Although the reasons for these children's separation from their primary caregiver may vary, the phenomenon is not a recent occurrence. As for refugees in general, the number of asylum applications from separated children has varied in accordance with the size and number of conflicts around the world. The procedure for separated children and asylum also varies from one country to another and there seem to be no completely satisfactory procedure for requesting asylum and assistance to separated children. Since the asylum procedure, as legal procedures in general, appears to be created for adults, problems arise when dealing with a child applicant. As a consequence of a child's minority, s/he may need someone who can represent him/her during the procedure. Moreover, a child may have problems with meeting with those criteria that have to be fulfilled, in order for a claimant to be recognised as a refugee. In addition, existing prejudice opinions regarding a child's ability to provide reliable information may prevent an adjudicator from taking a child witness with sufficient gravity. As the testimony of a separated child in general is the main evidence to support the refugee claim, this may create great difficulties. The aim of this thesis is to analyse the situation of separated children in the Swedish asylum procedure, with special attention given to the evidentiary assessment. Separated children in an international context are used as a basis for comparison&semic references are also made to the evidentiary assessment in cases of adult asylum seekers. A comparison is also made with the practice of evidentiary assessment in child cases within family and criminal law. As to the prejudice opinions regarding children being less capable than adults in providing reliable information, the question of credibility comes into focus. In order for a testimony to be reliable, it has to be ascertained that the narrative has solidity when confronted with other evidence. According to the MB, a decision of the credibility of the applicant should not solely be based on the age of the applicant. Neither is a child to be looked upon as more or less credible compared to an adult. Regardless of the type of the case, it appears to be extremely difficult to find a testimony reliable if the witness is considered to lack credibility. Analysed decisions made by the MB shows that child applicants sometimes are considered as not credible witnesses. The decisions also show that lack of confidence in an applicant, owing to uncertainty in parts of the narrative, may affect all parts of information coming from that applicant. This despite the fact that the disputed parts of information may have no relevance whatsoever, regarding the applicant's right to refugee status. The Swedish refugee definition is in accordance with the 1951 Convention relating to the Status of Refugees. Hence to obtain asylum in Sweden, the applicant has to show that s/he owes a well-founded fear of persecution for reasons of race, nationality, membership of a particular social group, or religious or political opinion in his/her country of nationality. The applicant also has to be unable or, owing to such fear, unwilling to avail him of the protection of that country. This applies irrespective of whether persecution is at the hands of the authorities of the country or these cannot be expected to offer protection against persecution by individuals. A stateless person who for the same reason is outside the country of his former habitual residence and who is unable or, owing to such fear, is unwilling to return to that country, shall also be deemed a refugee. The Aliens Act chapter 3 § 2. Since there are no specific regulations on refugee status concerning children, this definition applies to children in the same way as to adults, regardless age. Whenever making a determination on refugee status the problem of proof is great. A child that is accompanied by his/her parents is in the majority of states granted refugee status if one of the parents is considered a refugee. As a consequence the test of well-founded fear normally does not become a problem in such cases. When dealing with separated children however, the test may become a great problem as a child often is considered to be unaware of his/her surrounding situation. If the child applicant is unaware of his/her surroundings - how may that child owe a well-founded fear, owing to those surroundings? It is obvious that not all children are aware of their own situation, or why their parents/family fears for their lives. In these situations it is for the caseworker handling the case, and the adjudicator, to make an investigation on the applicant's situation and thereby obtain sufficient basis for a decision. The UNHCR Handbook specifically points out that the question of whether a separated child may qualify for refugee status must be determined in the first instance according to the degree of his/her mental development and maturity. This guidance has been criticised on the grounds that there is no necessary connection between a person's level of maturity and the existence of a well-founded fear of persecution, as anyone can be persecuted, regardless age. Furthermore, although a child might not clearly understand the grounds for his/her fear, s/he is as capable of feeling fear as an adult. Still, the age and maturity of a child appears to be of great importance, not only within refugee law, but also within family and criminal law. Even when a child is considered mature enough to owe a well-founded fear of persecution, the child might have problems verbalising that fear. A child may also have a different way of expressing his/her fears than an adult&semic s/he may also apprehend his/her situation different from an adult. Swedish case law on statutory care confirms that a child's apprehension of his/her situation may be of great diversity from that of an adult apprehension. In a case of statutory care concerning a 7-year-old child, the Swedish County Court defined violence from a child perspective and came to the conclusion that the prerequisite criteria of assault were fulfilled. The child's apprehension of his/her situation was decisive in this case. For Swedish case law in administrative cases to be consistent, an analogy should be made between above mentioned case law and the decisions in the asylum procedure. A child perspective could hence be decisive when determining what actions may constitute persecution. Furthermore, as the term well-founded fear is considered to include a subjective element within Swedish refugee law, the personality of the child should be taken into great consideration, when determining whether the individual child owes a well-founded fear. Moreover, it is important that child specific forms of persecution are recognised. One problem that may arise when trying to assert if a child is subjected to child specific forms of persecution in his/her country of origin is that, in general, such persecution is exercised by non-governmental actors, i.e. private individuals in the society. For a successful claim, the applicant has to show that the persecutor holds the intent to persecute, that the persecution is linked to one of the reasons prerequisite and that the government in the country of origin is unwilling, or unable to protect the child from the persecution. If the child is unable to provide sufficient evidence in such cases, it is up to the caseworker and adjudicator to fill in possible gaps. The reason for the persecution feared by the applicant has to be for one of the reasons mentioned above, i.e. race, nationality, membership of a particular social group, or religious or political opinion. A question that arises is whether a child qua child, may be recognised as a member of a particular social group. There are indications that such interpretation can be made and even should be made. If a child owes a well-founded fear for persecution because s/he is a child and the state is unable or unwilling to protect the child from the persecution, that child could be recognised as a refugee. Minors that are forcibly recruited into international sex trade or armed militias, because they are minors/children, may consequently be recognised as refugees, provided that no effective state protection exists. They are discriminated for reasons of their membership to a particular social group and thereby prevented from enjoying their inherent, basic human rights and freedoms, all in accordance with case law on the area. My analysis indicates that children have great problems in proving that they are persecuted for one of the reasons stated. For instance, although the MB has an ambition to establish a child applicant's political opinion and activity, these seem in general not to substantiate sufficient ground for a positive claim for asylum. Furthermore, in some of the analysed decisions the reason for the persecution feared was a family member's political opinion. The fact that the persecutor may have believed the whole family to hold the same political opinion is not mentioned in any of these decisions. Despite the fact that this may have been the actual reason for the persecution feared. In other words, even though the MB appears to acknowledge children as capable holders of political opinions, they may in reality not be accepting children as political actors. In addition, girls suffering from FGM are not given refugee status&semic they are instead recognised as aliens in need of protection. This practice clearly reduces many female child applicants' ability to obtain refugee status. In conclusion, there are several factors that have to be taken into consideration when dealing with a separated child seeking asylum. The person interrogating the child has to be free from prejudice opinions regarding children. If the child is unaware of the reasons for his/her fear, it is for the adjudicator to make a thorough investigation. If the child is unable to verbalise his/her fears, psychiatric expertise on children may be necessary during investigation. Additionally, a wider interpretation of the prerequisite criterion of refugee status may be necessary as to include children.

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