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The Convention

of the Rights of the Child

and the Aliens Act

00006 Summary of the of the Committee

interim report

on the Convention of the Rights of the Child and Swedish Legislation 00660

I 55M lCzoo:

The Convention

of the Rights of the Child

and the Aliens Act

Q0099 Summary of the interim report of the Committee on the Convention of the Rights of the Child and Swedish Legislation 00000

Layout: Marie-Helene Hedlund, UD-Redaktionen Tryckning: Gotab, Stockholm 1996

Preface

On 1 February 1996, the Swedish Government set up a parliamentary committee assigned with the task of conducting a broad of the standing of Swedish legislation and practice in survey relation to the provisions contained in the United Nations Convention on the Rights of the Child. The Committee on the Convention on the Rights of the Child, as came to be called, was instructed to give priority to the situation of children in matters involving the Aliens Act, including involving refusal of entry cases expulsion where children affected. An interim report or are on these matters submitted to the Swedish Government 28 was on June 1996. Since the plight of children involving aliens also be in cases can of interest outside Sweden, pleased to present we are a summary of the interim report in English

Gabriel Romanus Chairman The Committee on the Convention the Rights of the Child on

SOU l996:1I5

The Assignment of the Committee on

the Convention the Rights of

the

on

Child and Swedish Legislation

The United Nations Convention the Rights of the Child on was passed by the General Assembly of the UN November 20, on 1989. In this Convention the rights of the child were formulated for the first time in systematic in internationally binding a way an agreement. The Swedish Parliament its consent to the gave unconditional ratification of the convention June 21, 1990 and on the convention into force September 2 the came on same year. In the light of Swedens commitments, the Swedish Government decided February 1996 to commission parliamentary on a committee to study how the spirit and content of the convention manifested in legislation and practice. The committee was are instructed to give priority to the issue of the status of the child in legislation concerning aliens. In other words, the assignment involved analysing aliens legislation in the light of the Convention the Rights of the Child and the in which applied. on way The Committee the Convention the Rights of the Child on on and Swedish Legislation has used the four main principles of the Convention the basic starting point for its analysis, that is: the as principle of the best interests of the child, the importance of listening to the child, the childs right to life and development, and child’s right to enjoy his her rights without discrimination. every or The question which the committee has asked in each of these areas whether these principles reflected in legislation and practice are additions changes required. or or are

The fundamental principles of the

Committees work

Some additional points of principle form the basis of the Committee’s work. According to article 3 of the Convention the best interests of the child shall be primary consideration. The a Convention gives clear directions regarding when the childs best

Summaty the interim report the Committee on the Convention the Rights 0 the Child and SwedishLegislation

interests shall constitute the decisive factor, for example in decisions regarding custody and adoption. With regard to other decisions which primarily affect the parents but which also affect the child, the principle of putting the childs best interests first must be the guiding the best interests of the child shall be one — primary consideration. This that the childs interests a means shall carry great weight in those situations where they must be

balanced against the overall interests of society.

The main principle underlying the work of the Committee that the Aliens Act and related statutes constitute where an area the best interests of the child have to be balanced against the needs of the community to regulate immigration. Thus, the best interests of the child alone cannot be the decisive factor in such situations. At the time, the Committee emphasizes that same ofcrucial national interest that the Aliens Act and similar legislation applied in compassionate are a manner. Moreover, the Committee of the opinion that long periods of residence for those children and families with children who are subsequently expelled constitute serious threat to childs wella a being. Another important principle according to the Committee that the main responsibility for child lies with his her parents a or and that they are the most qualified to judge what best for ones the child. However, this does not absolve the authorities from their responsibility to consider the best interests of the child when making various decisions which affect them. The Convention the Rights of the Child multilateral on a agreement which places obligation the parties an on states to realize the content and intention of the Convention. But the Convention also states that the states parties shall take into

consideration the role of the parents and the family in the life and

development of the child.

Proposals for changes

The review made by the Committee the the on Convention on Rights of the Child and Swedish Legislation shows that Swedish aliens legislation in the main with the Convention. consistent On the other hand, there has been of how laws have some criticism been applied. For this the Committee putting forward reason a

number of proposals and views concerning the application of aliens legislation. The Committee also proposes certain important changes to the law which in in line with the proposals of part are the Committee on Refugee Policy. these proposals are adopted, the Committee of the opinion that Swedish aliens legislation — at least far possible to foresee today will comply with as as — the spirit and content of the Convention.

Introductory provision

The fact that large proportion of those persons who seek asylum a apply for residence permits for other reasons in Sweden are or children reflected only to very small degree in the Aliens Act. a The word concept of "child in the current act in chapter or occurs 6 only, where the rules concerning detention and supervision are dealt with. The stipulation contained in the Convention that the childs situation be taken into consideration has corresponding no text in the Aliens Act. The Committee therefore that the general principle proposes underlying the Convention the Rights of the Child that the on — best interests of the child be a primary consideration when taking steps which affect children be incorporated into the Swedish any — Aliens Act introductory provision. This provision, which as an should be incorporated into chapter paragraph 1 of the Act, one, shall state that when any decisions on the basis of this Act are to be taken, then special attention be paid to the health, development and general well-being of the child. The paragraph in the same Swedish Aliens Act should also contain definition of child a a as below the age of 18, in order to conform to article 1 of any person the Convention.

Strengthening of the first phase of the asylum process

The Committee has proposed that resources and competence should be concentrated dealing with the introductory phase of on the asylum Investigations well the grounds for process. as as decisions have to be improved that the childs situation be so can clearly deduced from the investigative reports. The grounds for decisions should also describe in what the child’s interests way have been taken into consideration.

Summary the interim report the the Convention Committeeon the Rights0 the Child and SwedishLegislation

The Committee that the Swedish Immigration Board proposes be charged with the task of establishing routines for examination of children in families applying for residence permits. The model for examination of unaccompanied children which has been drawn by the office of the United Nations High Commissioner for up Refugees UNHCR should be used starting point. Further, as a the Committee that the Swedish Immigration Board proposes shall to greater extent supplement investigations where children a involved with experts’ the health status of the child. are reports on In this context the Committee emphasizes the importance of consulting staff with knowledge and experience of children when undertaking such investigations.

Children shall be heard in the course of proceedings

As part of the to improve the basic asylum investigative process procedures which involve children and also adjustment to as an article 12 of the Convention the Rights of the Child, the on Committee that the Aliens Act be supplemented with proposes a provision stating that in investigations involving children, the childs statements be taken into account in accordance with the age and maturity of the child, and long such procedure not as as a deemed inap-propriate.

Measures to create confidence

The Committee regards serious matter the credibility as a very gap which has arisen between those issuing certificates concerning i.a. the childs health and the authority granting the permits. The Committee therefore that the Immigration Board be proposes charged with the task of creating meeting places for the exchange of information and experiences between issuers of certificates and authorities. This work should be carried in collaboration with out voluntary organizations.

Furthermore, the Committee that the Government

proposes initiate broad review of the system of medical advisers which has a been called in question and controversial, particularly with

respect to cases involving alien issues. In the present circumstances,

SOU1996:1I5

the Committee stresses how important that the medical adviser asked to evaluate certificate which has been issued by a a doctor, has at least the same level of competence the issuing as doctor when certificates need to be assessed.

The child best interests and residence permits

The assessment of whether not residence permit shall be or a granted on humanitarian grounds should be made taking into account article 3 of the Convention. Factors which, in the view of the Committee, should be taken into account when considering the child’s best interests the childs need of and good are care health, well his her need of relations with as as or parents. Furthermore the childs need of development and connections with Sweden should be considered in deciding what best for the child. The most important factors relating the child’s best to interests whether not the child living with his her are or or parents and the child has to at least reasonably stable access one parent. Assessments made the basis of the child’s best interests on must then be balanced against the overall interests of the community. The provision contained in article 3 should be considered to be complied with the best interests of the child have been taken into account during the and assessment process have carried substantial weight.

Unaccompanied children

The Committee would like to emphasize the fact that unaccompanied children first and foremost children. Their status are as asylum-seekers takes second place. Thus, the ban discrimination on contained in article 2 of the Convention into force comes as soon as a child arrives in Sweden. An unaccompanied child should, in the opinion of the Committee, in principal be expelled never directly to first asylum country so-called safe third—country. a or a Moreover, the Committee holds the view that the child’s reasons for seeking asylum should be given priority in investigative work and that efforts to find the parents should only be initiated after

Summary the interim report the Committeeon the Convention the Rights 0 the Child and Swedish Legislation

quite clear that the child does not have such need of protection that grounds for asylum exist. The Committee also holds the view that unaccompanied children, irrespective of should always age, be placed family similar, home-like The in a or a environment. Committee would also like to draw attention to the international development work for unaccompanied children initiated by the UNHCR.

The situation of children in hiding

The Committee would first like to stress that the fact that children in hiding in Sweden and beyond the reach of the community are constitutes extremely serious dilemma. Public measures must an focus reducing the number of people who into hiding and on go on limiting the harm inflicted children. The proposals put forward on by the Committee with view to improving investigative work a and the grounds for decisions also aimed at creating better understanding of the decisions that made. In the long-term, the are Committee believes that this could reduce the number of people going into hiding. The Committee thinks that important to invest in reception facilities in the home country. The resources Immigration Board should in this context develop cooperation with the voluntary organizations that also work internationally. The Committee of the opinion that the fact that possible to have applications for residence permits reconsidered unlimited an number of times problems. would also like to point creates new out that the circumstances which cited in application new are a new for residence permit shall be examined on the same basis as the a circumstances cited in the original application. Consideration of the childs best interests must also great weight in this carry case. The Aliens Appeals Board has proposed that application for a new residence permit be considered only the condition that a may on the applicant accessible for enforcement of the decision. In the opinion of the Committee this proposal should be regarded as a preventive Such limitation contribute reduction measure. a can to a in the number of children in hiding and reduce long stays in Sweden before expulsion orders enforced. are

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Medical for children in hiding

care The Committee ascertains that present legislation all assures children in Sweden of the right medical the to emergency care. provisions in articles 2 and 24 of the Convention to be are complied with, then children seeking asylum should be granted the same right to health and medical Swedish children. care as Therefore the Committee of the view that the Health and Medical Services Act and other laws and statutes regulating the right to health and medical should be changed in order to care comply with the provisions contained in the Convention.

Revoking residence permits

In this context, the Committee would like emphasize that to seldom the child who has supplied incorrect information. Rather the child who affected by something for which his her or parents are responsible. However, the Committee would like to stress that in where the question of revoking residence cases a permit has arisen, the interests of the child be considered and must his her best interests must considerable weight in the final or carry decision. The Committee to changes to the sees no reason propose Aliens Act in this inevitable that legislation leaves area. room to revoke permanent residence permit that based incorrect a on information from the applicant.

The childs right to his her parents

or The basic standpoint of the Committee that the Conventions express principle of the child’s right to his her parents or paramount. In the assessment process, when application for an a residence permit for reunification from either the parents the or child being considered, well in situations where the family are as as threatened with being split the principle of the child’s best up, interests should great weight. Problems frequently carry occur when investigators trying to establish correct family relationships are when applications for reunifications being examined. The are Committee holds the view that the Swedish Immigration Board

Summary the interim report the Committeeon the Convention

the Rights 00/‘the Child and SwedishLegislation

should seek unconventional methods and be flexible more more about the documents referred to by the applicant. In paternity investigations when the child and/or the alleged father domiciled in Sweden, the Committee that the are proposes possibility of granting temporary residence permit be introduced a to enable the authorities to complete their investigations. A residence permit of this kind should also include the temporary childs guardian. The Committee also that the social proposes welfare authorities’ obligation to determine paternity be extended include children born in Sweden to foreign applying for to women residence permits where the alleged father also living in Sweden.

Criminality and residence permits

When the authorities investigating how person’s of life are a way should affect his her right to be granted residence permit or or a be allowed to remain in Sweden, the Committee of the opinion that in those where children affected by the decision, only cases are when serious crimes such drugs offences crimes against life as or and health involved should the interests of the child take are second place. In those where with children in cases a person Sweden has been expelled and banned from re-entering the country, the Committee that the Government initiate a proposes review of the rules in order to make contact between parents and

children possible.

Collision between the Care of Young Persons Act

and the Aliens Act

As first comment this section, the Committee would like to a on that the protection afforded children by the Care of Young stress Persons Act also valid for children of foreign origin domiciled in Sweden. The work of the social welfare authorities must focus on the reunification of children with their parents. The Committee that clause be added to the Aliens Act which would proposes a allow children and their guardians to be granted a temporary residence permit in those where the child has been taken into cases under the terms of the Care of Young Persons Act. The social care

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welfare authorities should primarily focus examining whether on or not treatment can be completed within a limited period of time in Sweden. the treatment under the terms of the Care necessary of Young Persons Act estimated to be of long duration, then the authorities should turn their attention to helping the family return to their home country. For such the Committee finds purposes, important that the social welfare authorities establish cooperation with the Swedish Immigration Board, the social authorities in the home country and voluntary organizations in Sweden and the home country with view to drawing joint plan for continued a up a and repatriation. Taking child into under the Care of care a care Young Persons Act should not automatically imply obstacle to an enforcement. Instead an individual examination must be made. During the of this examination, the social welfare authorities course must be questioned, and their opinion given due weight. The Committee intends to report later how this shall be on process regulated in connection with the Committees further study of the Social Services Act and the Care of Young Persons Act.

Children in detention

The Committee of the opinion that the main guideline, also in the of children in detention, should be of preventive nature. case a According to the Convention, custody only be used may as a measure of last resort and for the shortest appropriate period of time. Every effort should be made to prevent such situations arising that make necessary to detain children. Detaining children shall in principle only be permissible in those where cases such action absolutely essential in order to be able to an ensure enforcement of final refusal-of-entry expulsion order, and a or then the authorities should carefully consider the even same purpose cannot be achieved by placing the child under supervision. The Committee proposes that the rules concerned with detention in the Aliens Act be changed in order to conform better to article 37b of the Convention. The Committee also stresses the importance of the facilities used to accommodate children in detention. They should be suitable for keeping children in detention, and staff with knowledge

Summary the interim report the Committeeon the Convention Swedish Legislation the Rights0 the Child and

and experience of working with children should be available. Such facilities should resemble ordinary housing within the framework of normal immigrant and refugee accommodation. No personnel in uniform should be permitted. Furthermore, the Committee of the opinion that the possibilities of developing support services for families with children in detention should be examined in cooperation with voluntary organizations.

Children and enforcement

When expulsion order to be enforced, effort must be an every made to prevent the order from being enforced in dramatic a Panic-stricken parents who resist enforcement create manner. can catastrophic situation for the child. One decisive factor for how a expeditiously the order carried out inter alia, the amount of time the family spends in Sweden. The longer the period before the final decision expulsion made, the disturbing the on more idea of repatriation becomes. The Committee also of the opinion that people who to be expelled need support and time are themselves for repatriation. This should be arranged in to prepare such that when the Immigration Boards decision a way on expulsion has been made, social support should be focused on adjustment to that decision.

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