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by Lisa Wolfsegger The NGO asylkoordination österreich is a networking organization that stands up for the rights of vulnerable groups. Particular emphasis is laid on child refugees. This blog post draws attention to major shortcomings in the provision and implementation of children’s rights for child refugees. In 2020, 5,522 children applied for asylum in Austria. While 1,467 have entered the country without their parents and are, therefore, unaccompanied, most of them, that is, 4,055, have entered Austria with their parents[1]. All adults and accompanied/unaccompanied minors – have to apply for asylum. This is the only possibility for legal residence in Austria. Other forms of legal entrance are rare. In the asylum process, three points are checked: asylum according the Geneva Refugee Convention (1), subsidiary protection according the European Convention on Human Rights (2) and humanitarian residence permits: §§ 55 and 57 (3). Discrimination of children In Austria, there are two groups of children– children and child refugees. There are systematic shortcomings before, during and after the asylum process concerning minors. The state does not provide children that fled to Austria without their parents with a guardian for extended periods (weeks or even months). During this initial process, no one is responsible for them. As a result, about half of the unaccompanied minors disappear altogether. No one keeps track of the missing children. In 2020, 764 children disappeared in this way[2]. After passing through the initial phase, unaccompanied minors are provided with accommodations with 24/7 care. However, they are disadvantaged compared to Austrian children in the custody of state-provided child-care accommodations, as the state provides fewer resources for their care. Study on accompanied minors In 2019, some colleagues and I jointly published a study with UNICEF[3]. It focused on the situation of accompanied minors, particularly on the rights of accompanied child refugees during the asylum process and on the contribution of existing support services serving their best interest. The focus group were children in families during the asylum process in Austria. As our study shows, most protection is provided through the voluntary commitment of supporters or teachers. Despite this considerable voluntary effort and individual engagement, we found clear deficits in the implementation of the Convention of the Rights of the Child for child refugees. In particular, the state authority providing infrastructure and supporting structures, does not take the best interest of the child and the protection of the children’s rights sufficiently into account. No place for being a child The asylum procedure is stressful, for children and parents alike. Children have to take the role of adults and therefore involuntarily encounter the world of grownups. There is no space for being a child. Leyla (14 years) described her daily life with “three times a week crying, four times a week being happy”. The eight-year-old Rami wished for a kind fairy to grant a legal residency status (“Aufenthaltsstatus”). While other eight-year-olds desire Lego, Rami dreams of a legal residency status – actually a word that an eight-year-old should not even know. Asylum seeking children are explicitly excluded from the law that prescribes minors to be educated until the age of 18 (“Ausbildungspflicht”). Their parents are not allowed to work, and the families often live in cramped housing without any private room for children. The parents’ lack of system knowledge prevents them from giving adequate support to their children. Children often do not know any other place than Austria. Nevertheless, they experience racism and the feeling of being unwanted every day. Although some of them have been born in Austria, this does not entitle them to legal residence. In Austria, children always get the citizenship of their parents, no matter how long they have already lived in the country. This discrimination in the asylum process leads to an enormous physical and psychical burden on them. Legal consequences As part of guardianship, parents are their children’s legal representatives. When parents cannot afford a lawyer, there is no preparation for, or support at, the interview. Accompanied children often become invisible in this legal context. While the authorities recognise unaccompanied minors as autonomous parties, accompanied minors are seen as “appendix” of their parents. The focus on the violation of children's rights and child-specific grounds for persecution disappears. Families with a positive asylum status can receive minimum benefits (“Mindestsicherung”). If they have subsidiary protection or humanitarian status, it depends on the region whether they get any social welfare at all. If the asylum procedure ends with a negative decision, many families fear deportation. In early 2021, the case of Tina received media attention. The 14-year old Tina was born in Austria and lived here for 12 years. In January 2021, she and her family were deported to Georgia. As we will see below, this case is not an unpleasant exception. Deportations of minors are cruel everyday occurrences in Austria. Even though it would be legally possible, authorities refuse to grant humanitarian status to families. Consequently, Austria deported 67 minors in the pandemic year of 2020.[4] Also detention (“Schubhaft”), the cruel imprisonment without crime does not stop at children. In 2020, 13 children were in detention, eleven of them being unaccompanied minors.[5] What do we need? The focus should be on the best interest and the rights of the child. Currently, the best interest of the child hardly matters. According to the law, people receive humanitarian status when the right to a private and family life prevails over the interests of the state. This consideration is in the discretion of the authorities. This humanitarian status is not humanitarian; it simply does not work anymore. In recent years, high legal barriers have been created by the deciding immigration authority, the “Bundesamt für Fremdenwesen und Asyl” (BFA), which is subordinate to the Ministry of Internal Affairs. The BFA is over-financed and uses its large personnel of about 1,000 employees to file legal appeals (“Amtsrevisionen”) against positive decisions by the Federal Administrative Court, which is the second instance. As a result, the criteria for admission and the legal reasoning have become so complex that they beat even specialized lawyers. The entire legal apparatus is inscrutable for all parties involved. What happened before the deportation of 14-year-old Tina? In the case of Tina, the mother applied for a humanitarian status and, therefore, for a re-examination of the best interest of the child in May 2020, that is, nine months prior to the deportation. Thus, the mother did her best to safeguard the best interest of her child. The authority ignored the application, although it was required to deal with it within six months. This was contrary to law! The best interest of the child had been examined 1 ½ years before the deportation. A proper procedure would have included a re-examination before deportation. This did not happen. In the long interval since the last examination, the children had become integrated in Austria and their ties to the country of origin had decreased. Therefore, their adaptation to the country of origin had become more difficult. If the authorities take children’s rights seriously, they have to re-examine to decide if the deportation indeed corresponds to the best interest of the child. We see that the shortcomings in the proceedings for children and asylum are systematic. Children’s rights are consistently ignored; child refugees are not recognized as children Just as in the case of Tina, our study shows the need for a stronger focus on the rights of the child in the asylum process. The current situation is a systematic failure that is politically intended. For many years, asylkoordination österreich has been working to improve conditions in the field of children’s rights for this vulnerable group. Each and every one of the 67 deportations of a minor in 2020 was cruel. Altogether, we need better options for the legalization of undocumented persons in Austria – not only for children. [1] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021 [2] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021 [3] Andrea Fritsche, Katharina Glawischnig, Lisa Wolfsegger: „Dreimal in der Woche weinen, viermal in der Woche glücklich sein“. Zur kinderrechtlichen Situation begleiteter Kinderflüchtlinge und ihrer Familien. UNICEF Österreich / asylkoordination österreich. 260 Seiten. ISBN 978-3-200-0664-1. [4] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021 [5] Source: parliamentary query response from NEOS (AB 4983/AB) – 15.03.2021
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