Bulgaria bears a “big responsibility” for protecting the European Union’s external borders and should do so “in full respect” of migrants’ human rights, says Europe’s senior minister for migration, Dimitris Avramopoulos.

Bulgarian border police stand near a barbed wire fence on the Bulgarian-Turkish border on July 17, 2014. 

© 2014 Reuters

Speaking in the country’s capital, Sofia, Avramopoulos, the European commissioner for migration, home affairs and citizenship, said Bulgaria had the EU’s support as well as his “personal commitment” as it seeks to police Europe’s outer frontiers.

But can Avramopoulos really be confident that Bulgaria will respect migrants' rights in the way he hopes? Its track record suggests not.

Take the case of 16-year-old ‘Abdullah’ from Afghanistan, who experienced Bulgaria’s “respect” first hand.

“When Bulgarian police saw us, we tried to run away,” he said. “They chased us with dogs and shot at us. There were five police. When they caught us, they started beating us. They kicked me and the others wherever they could reach. They did this for about an hour and threatened us with the dogs. They took my money and mobile.”

Abdullah (not his real name) is one of several migrants and asylum seekers who told Human Rights Watch about summary returns from Bulgaria, and violence both at its borders and inside detention centers in late 2015. These are not new problems; we also documented similar abuses in April and September 2014.

Yet Abdullah’s and hundreds of others’ similar testimonies have fallen on deaf ears at EU headquarters in Brussels. While Bulgaria has the right to protect its borders, it doesn’t have the right to summarily return people to Turkey or physically abuse them. By focusing on border protection, Avramopoulos missed the chance to press Bulgaria on violence against migrants and asylum seekers.

The commission should forcefully remind Bulgaria of EU laws and standards, and urge Bulgarian authorities to investigate these credible reports of abuses and bring them to a halt. Because ignoring Abdullah’s story won’t make the allegations go away, and resorting to violence is no way to manage the refugee crisis.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

 

________________________________________________________

 

WRITTEN SUBMISSIONS ON BEHALF OF THE

INTERVENERS

________________________________________________________

 
 
 
 
 
 
 
 
 
 
  1. Introduction: These submissions are presented on behalf of Amnesty International (AI) and Human Rights Watch (HRW) (“the Interveners”) pursuant to the leave to intervene granted by the President of the Section on 14 October 2019, under Rule 44 § 3 of the Rules of Court. The submissions address: (A) the existence of Italy’s jurisdiction under Article 1 European Convention on Human Rights (“ECHR”), as a result of its decisive influence over Libya’s migration policy and practice; and (B) the conditions for migrants[1] in Libya and the consequences of cooperation activities leading to the containment of migrants in the country, in light of Italy’s responsibilities under Article 3 ECHR.

A. Extraterritorial jurisdiction of States under Article 1 ECHR

I. Overview of ECHR standards

  1. This Court’s longstanding jurisprudence recognises that States’ protection of the rights and freedoms under the ECHR, as per Article 1, may extend to acts performed, or producing effects, outside their territory.[2] While this Court has developed guidance on extraterritorial jurisdiction, its case-law on this issue continues to evolve, taking into account the specificities of each case, thus allowing the Convention to remain practical and effective and not theoretical and illusory.[3] This Court considers that extraterritorial jurisdiction can generally arise by virtue of the presence of a Member State [MS] agent exerting ‘control and authority over an individual’ in a third country or due to the MS’s effective control over an area.[4] This Court also considered that jurisdiction can exist when a MS ‘exercises all or some of the powers’ of a country ‘through [its] consent, invitation or acquiescence’.[5]  
  2. In Ilaşcu and Others and subsequent cases, the Court indicated that jurisdiction can arise when a state operates ‘under the decisive influence’ of a MS.[6] Importantly, in these cases this Court links the concept of ‘decisive influence’ to the existence of a relation of dependency of some degree, to the effect that it considered ‘the fact that the local administration survives as a result of the [MS’s] military and other support’ to entail ‘that State’s responsibility for its policies and actions’.[7] This is irrespective of the active involvement of the influencing State in the alleged human rights violations.[8]. Various factors can be relevant in establishing if decisive influence exists.[9] The Court’s approach to the above cases should be taken as a place of departure to address situations where the relation of dependence is such that a MS does exert decisive influence over a third party’s policy and practice, thus attracting that state’s jurisdiction under the ECHR.
  3. The Interveners respectfully submit that even in the absence of physical occupation of a territory, States may nonetheless control areas of policy of third party entities. This could be argued by reversing the Court’s statement in Catan and others v. Moldova and Russia. Discussing situations where control on an area is established ‘as a consequence of lawful or unlawful military action’, the Court held that ‘Where the fact of such domination over the territory is established, it is not necessary to determine whether the [MS] exercises detailed control over the policies and actions of the subordinate local administration’.[10] Conversely, where such domination is lacking, it could be argued that other forms of control and influence should be sufficient to bring a situation within a State’s jurisdiction for the purpose of Article 1 ECHR. It is significant that this Court found the jurisdiction of MS beyond situations of military occupation, including following developments occurring after the facts of the case.[11] Failure to act to prevent human rights violations in the country where the MS exercises influence was also considered relevant in Mozer.[12]

II. Conduct of the Italian authorities and their relevance under ECHR Article 1 standards

  1. The Italy-Libya relation – legal and diplomatic framework: This Court acknowledged the longstanding cooperation between Italy and Libya on migration matters in Hirsi Jamaa and others v Italy.[13]. From the beginning of 2017, Italy has used the resumption of cooperation with Libya and the funding, political and material support that came with it to outsource migration control to Libya, while maintaining power to decide on its practical aspects. Following the change of policy resulting from Hirsi, between 2013 and 2017, when crossings increased sharply, Italian and other ships operating in the Mediterranean consistently disembarked those rescued in Europe and, most often, in Italy.[14] The Italian Maritime Rescue Coordination Centre (IMRCC) would coordinate SAR operations not only in Italy’s SAR Region but also in the area of the central Mediterranean between the southern limit of its SAR region and Libya’s territorial waters, in line with international law standards (SAR/SOLAS).[15]
  2. Transferring coordination responsibilities to Libya would have been virtually impossible before 2017, as the country had not declared a SAR Region, constituted an MRCC or set up a coast guard function capable to receive and act upon distress communications. Between 2016 and 2017, Italy’s actions created conditions for Libya to build such capacity. On 2 February 2017, Italy signed a bilateral Memorandum of Understanding (MoU) with Libya’s Government of National Accord (GNA)[16] as a framework for joint efforts to stem irregular migration and smuggling,[17] with the clear aim of enabling Libyan authorities to conduct operations at sea and disembark people in Libya, with Italy’s material, technical and political support, coordination and capacity building, though without the physical presence of Italian forces in SAR operations. The combined effect of Italy’s withdrawal from the sea, its obstruction of SAR NGOs and active deferral of responsibility to the Libyan authorities contributed to this goal.
  3. Italy pursued these activities to enable Libya to conduct sea operations leading to the interception and return to Libya of migrants found at sea, and so to create the conditions for at least the appearance of Libya’s ownership of operations at sea with the effect, and arguably the intent, to achieve the same outcome of the pushback practices and policies that this Court found fell afoul of Convention standards in Hirsi, while trying to circumvent Italy’s relevant obligations. The Interveners submit that, in view of the extent and pervasiveness of Italy’s role in Libya’s migration and SAR system, Libya has acted under its decisive influence since at least 2017, to an extent that Italy should be found to have exercised jurisdiction, at least concurrently with Libya, in migration-related operations conducted by Libyan forces. The Interveners have conducted research on the range of acts realised by Italy to pursue this strategy and reported on their human rights implications throughout the post-Hirsi period, from 2013 to 2019.[18]
  4. Italy’s support to Libya enabling it to intercept and ‘pull back’ migrants:

a. Support in declaring Libya’s SAR region and establishing an MRCC in Libya: In early2017, the Italian government requested the Italian Coast Guard (ICG) to initiate activities instrumental to the declaration of Libya’s SAR region and to assist Libya in setting up its MRCC.[19] Relevant activities followed suit,[20] mostly funded by the EU.[21] As a result, Libya notified the creation of its SAR region to the International Maritime Organization (IMO), in July 2017,[22] and in December 2017.[23] IMO confirmed the establishment of the Libyan SAR region in June 2018.[24] As a result, the Libyan authorities assumed responsibility for coordinating SAR operations in the region, including the responsibility to instruct rescue vessels on where to disembark the rescued, also on its territory.

b. Donation of vessels and training of LCGN:[25] In May 2017, Italy provided the LCGN with 4 fast patrol boats[26] and committed to donate 6 more.[27] Italy allocated 2.5 million euros to maintaining the boats and related activities.[28] In parallel, it trained LCGN staff, including those to be employed on those boats, both independently and via the Italy-led naval operation EunavforMed Sophia.[29]

c. Operational assistance in SAR operations and presence on scene: Italy’s cooperation has crucially involved also the physical presence of Italian personnel in Libya, including its territorial waters. On 2 August 2017, in agreement with the Libyan government,[30] Italy launched naval operation ‘Nauras’ in Libyan waters and deployed navy officials on Libyan soil to support the contrast of irregular migration and smuggling.[31] Through an Italian Navy vessel docked in the port of Tripoli,[32] Italy directly supported the coordination of SAR operations, in particular by providing the Libyan naval authorities with the technical capabilities necessary to ensure communication and coordination between LCGN, IMRCC and any state or private ships operating at sea. As highlighted in a ruling by the Court of Ragusa in April 2018,[33] these capabilities were instrumental to enabling the LCGN to locate migrant boats at sea and issuing instructions to any ships in the area, including instructions to stay away from migrant boats as the LCGN would approach them.[34] With its formal intervention in Libyan territory since 2017, with Libya’s consent, and the formal assistance provided in the exercise of migration management and border control, Italy’s conduct should therefore be seen as meeting the conditions for extra territorial jurisdiction established by this Court.

d. Participation in SAR operations conducted by the LCGN: The Interveners’ research indicates that, throughout 2017, LCGN operations were increasingly conducted with Italian authorities’ input, which alerted them of the presence and position of boats in distress, and even directly participated in operations at sea. On 27 September 2017, a LCGN vessel intercepted two migrant boats in international waters, while testing a boat recently repaired by Italian officials. After receiving assistance from the Italian warship Andrea Doria, which was in the area and provided lifejackets, the LCGN ship took all of the approximately 200 people back to Libya.[35]

e. Transfer of responsibility for SAR operations to the LCGN: As of 2017, the IMRCC increasingly sought to transfer responsibilities for the coordination of SAR operations to the LCGN. As of at least May 2017, IMRCC started to transfer information and coordination to the Libyan authorities, in those cases when IMRCC had been informed first and had therefore assumed such responsibility, and to decline to indicate a place of safety for disembarkation to rescue vessels that had conducted operations in the Libyan SAR Region. On 10 May 2017, the IMRCC received a distress call about a boat in trouble and instructed the German rescue NGO Sea-Watch to provide assistance, before transferring the coordination to the LCG, which intervened with one of its speedboats to take over the operation.[36]  IMRCC also began instructing rescue NGOs to wait before conducting certain rescue operations, to facilitate the intervention of the LCGN. On 15 August 2017, a vessel run by NGO Migrant Offshore Aid Station (MOAS) initiated a rescue operation, but IMRCC reportedly requested that the crew wait for the LCGN to intervene before taking people on board. The LCGN failed to intervene and after two hours IMRCC authorised MOAS to take people on board and transfer them to Italy.[37] On 24 November 2017, NGO SOS Méditerranée reported that IMRCC instructed its rescue vessel Aquarius to stand by as the LCGN conducted the interception of three rubber boats in international waters, after which everyone was returned to Libya. The IMRCC’s approach, consolidated over time, must be deemed as an element of the established framework of cooperation and support provided by Italy to Libya, instrumental to achieving the aim of preventing migrants’ arrivals in Italy and ensuring the LCGN’s ownership of operations at sea. This should be read with Italy’s failure to offer a place of safety in its territory following rescues in the Libyan SAR region, including after the transfer of coordination for SAR operations. The decisive influence exercised over Libya through the support described above attracted Italy’s jurisdiction, for the purpose of its ECHR obligations.

f. Activities to hamper the involvement of NGOs in rescues: Italy’s strategy to ensure the undisturbed operation of the LCGN included activities to obstruct the action of NGOs, through policies and practices discouraging their intervention. In 2017, NGOs were continuously slandered by authorities and subjected to baseless criminal investigations. In July 2017 the government drafted a code of conduct for NGOS, substantially restricting SAR activities.[38]

B. Article 3 consequences of Italy’s role in Libyan migration policies and practice

  1. It is a well-established principle under this Court’s jurisprudence that States’ obligations under Article 3 shall be understood to include the internationally recognised principle of non-refoulement.[39] The non-refoulement obligation also applies to indirect or chain refoulement.[40] Procedurally, Article 3 imposes positive obligations on MS, who have a duty to ensure that people under their jurisdiction ‘would not face a real risk of being subjected to treatment contrary to Article 3 in the event of repatriation’.[41] Addressing the situation of Libya in Hirsi, this Court recalled that this obligation ‘is all the more important when...the intermediary country is not a State Party to the Convention’.[42]  It found on the facts that the material conditions for migrants in the country were such that, by transferring the applicants there, ‘the Italian authorities, in full knowledge of the facts, exposed them to treatment proscribed by the Convention’.[43] Since Hirsi, the Interveners have continued to document abuses against migrants by Libyan agents in the country, including guards operating in detention centres managed under the responsibility of the General Directorate for Combating Illegal Migration (DCIM) within the Ministry of Interior, and members of the LCGN, and Libya’s inability or unwillingness to address violations by trafficking and smuggling groups.
  2. Research published by the Interveners between 2013 and 2019[44] documented how the treatment experienced by migrants in Libya, acknowledged in Hirsi, continues unchanged to date, and examined how cooperation by the EU and its member states – Italy in particular – with Libya on migration has been pursued despite the well documented abuse of migrants there. Abuses facing migrants start as early as during operations at sea conducted by the LCGN and extend to the often-automatic detention in centres on land. The Interveners documented episodes where the LCGN engaged in reckless conduct during rescue operations in international waters and used threats and violence against migrants on board boats in distress.[45] The Interveners also documented the systematic use of arbitrary detention, often in inhumane conditions, and the persistence of torture and other ill-treatment, in particular in the form of rapes and beatings, as well as of unlawful killings, sexual exploitation and forced labor.[46] The state of migrants’ rights in Libya is well-known and has been widely documented by international observers. UN bodies called the country’s situation a “human rights crisis” for migrants.[47] The severity of the situation was addressed by the UN Secretary General in his update to the UN Security Council in September 2017,[48] while in September 2018, the UNHCR reiterated its call on all countries “to allow civilians (Libyan nationals, former habitual residents of Libya and third-country nationals) fleeing Libya access to their territories”. UNHCR also urged all countries to suspend forcible returns to any part of Libya, including of anyone rescued at sea.[49] The Interveners consider that Italian authorities pursued cooperation activities with Libya, with the purpose of ensuring as many as possible migrants rescued or intercepted at sea would be returned to Libya while they knew or ought to have known that this would result in exposing people to arbitrary detention, ill-treatment and other serious human rights violations.
  3. Risk of ill-treatment at sea as a result of cooperation with the LCGN: In 2017, the LCGN on multiple occasions harassed, intimidated and threatened NGO rescue boats particularly in mid-2017. The Interveners have spoken to multiple NGOs who perform rescue operations in the Mediterranean about these incidents. For example, on 23 May 2017, crew aboard rescue ship Aquarius witnessed – and videotaped – LCGN approaching migrants on a boat, firing shots into the air. Survivors testified that the officers had demanded phones and money from them and that after hearing the shots, panicked people leapt into the sea.[50]
  4. Monitors on the scene reported that on 26 May 2017 LCGN fired shots at an ICG vessel in international waters, as it was taking rescued migrants to disembark on Lampedusa.[51] Overheard radio communication between a nearby Italian Navy ship and the LCGN made it clear that the LCGN boat had fired the shots because they mistook the ICG vessel for a migrant boat. The crew of NGO rescue vessel Golfo Azzurro reported that the LCGN threatened them in international waters, including by shooting in the air, in order to make them leave the area, on both 7 and 15 August 2017.[52] On 26 September 2017, an LCGN boat approached a vessel run by the NGO Mission Lifeline through a dangerous manoeuvre and fired one shot, before two LCGN officials jumped on board the NGO ship and said they wanted to take those rescued back to Libya. The NGO crew explained that they could not comply with the request because they were bound by the principle of non-refoulement. The Libyan officials threatened that they would sink the ship the next time they found it in “their waters”.[53] The OHCHR also reported similar behaviour from the LCGN.[54] The Interveners also heard similar descriptions of abusive use of force and firearms from individuals who were detained after LCGN intercepted their boats. One woman from a boat with approximately 170 people stopped by the LCGN in international waters explained: “Men on the large Libyan boat threw us a rope …The Libyans shot into the air and threatened us: ‘If you don’t tie it onto the boat then we will shoot at you.’”[55] A detained male reported a similar issue saying that individuals on the LCGN boat that approached them ‘shot into the water next to where we were. They also came very close to our boat and started to make waves to scare us. People got scared and finally started to board their ship’.[56] In April 2017 an LCGN commander told the Interveners that the use of force against migrants during rescue operations was “necessary to control the situation as you cannot communicate with them. Some can swim but others not.”[57]
  5. Collusion with Criminal Gangs: A confidential interim report from the UN Panel of Experts on Libya,[58] leaked to the press, concluded that most smuggling and trafficking groups have links to official security institutions. The report expresses concern ‘over the possible use of state facilities and state funds by armed groups and traffickers to enhance their control of migration routes’. A previous report from the same Panel in June 2017 had already concluded that ‘smugglers, as well as the Department to Counter Illegal Migration and the coastguard are directly involved in [...] grave human rights violations’ against migrants.[59] In June 2018, the UN Security Council imposed sanctions on six Libyans accused of human smuggling and trafficking including the head of a coast guard unit.[60] The Interveners interviewed many migrants who described how smugglers colluded with the LCGN. Interveners’ research reveals that the collusion between smugglers and the LCGN occurs through 3 main methods: LCGN officers escort boats until they reach international waters; boats are marked to show that they belong to a smuggler who has paid for ‘safe passage’; or the name of the “right” smuggler is communicated to LCGN staff conducting interceptions.[61] Many migrants also reported that criminal gangs engaging in trafficking and exploitation had access to detention centres and colluded with guards operating there.[62]
  6. Prolonged arbitrary detention as a result of interception at sea by the LCGN: Migrants without a regular status in Libya are detained based on laws that criminalise undocumented entry, stay and exit, which can be punished by a prison sentence, a fine and ultimately deportation.[63] The law does not indicate maximum terms for migration detention, and there are no formal procedures in place allowing detainees access to a lawyer or any opportunity to challenge the decision to detain them.[64] Coupled with the absence of an effective system to protect asylum-seekers and victims of trafficking, mass, arbitrary and indefinite detention has become the primary migration management system in Libya. When the LCGN –or other Italy-backed Libyan authorities, such as the General Administration for Coastal Security (GACS) under the Ministry of Interior – intercept boats at sea, they bring migrants back to Libya and routinely transfer them to DCIM detention centres. The support received from Italy and the EU massively increased Libya’s operational capacity and since 2016 the LCGN has intercepted tens of thousands of people at sea and returned them to Libya, to be placed in detention centres.[65]
  7. Abuse in detention: Individuals arbitrarily detained in DCIM centres are held in deplorable conditions.[66] As recently as July 2018, the Interveners documented inhumane conditions that included severe overcrowding, unsanitary conditions, poor quality food and water that has led to malnutrition, lack of adequate healthcare, and disturbing accounts of violence by guards, including beatings, whippings, and use of electric shocks. The detention of children in unsuitable conditions and allegations of rape and beatings of children by guards and smugglers were also documented.[67] Research by the Interveners includes testimonies by male and female detainees, held after being intercepted at sea, describing various forms of torture and other ill-treatment.[68] DCIM guards are directly involved in torturing and otherwise ill-treating migrants, very often in order to extort a ransom from them or their families in exchange for their release from indefinite arbitrary detention.  The Interveners submit that to date the conditions and treatment of migrants in Libyan centres has remained substantially the same, and there has been no development that could justify departing from this Court’s assessment in Hirsi.[69]
  8. Italian Knowledge of Abuses: At the time when they began engaging with Libya on migration-related cooperation, Italian authorities were aware of the widespread human rights violations and abuses suffered by migrants in Libya, and that the country lacked capacity to safely carry out SAR operations or to afford adequate protection to migrants in the event of their disembarkation in Libya.[70] Indeed, not only should Italian authorities have been aware of the long list of UN reports detailing such situation,[71] but in multiple circumstances Italian authorities openly acknowledged abuses. For example, in August 2017 Italy’s Deputy Minister for Foreign Affairs, signalling partial disagreement with the government’s decision to cooperate with the LCGN, noted Italian ships should keep collecting migrants, including those intercepted by Libyan authorities, ”because taking them back to Libya, at this moment, means taking them back to hell.”[72] In a letter to AI on 3 November 2017, Ambassador Mariangela Zappia, Diplomatic Counselor to the Italian Prime Minister, declared inter alia: “We are on the front line for the improvement of living conditions in the reception centres for migrants in Libya – whose problems have been well known to us for a long time – in cooperation with the main actors and international agencies.”[73] (emphasis added)
  9. In conclusion no meaningful action has been taken to avoid the predictable and foreseeable result that  decisive support for and cooperation with Libya would expose thousands of people to serious human rights violations, including in violation of Article 3. On the contrary, the MoU between Italy and Libya did not condition support and assistance upon human rights standards and recognition of the right to seek asylum, helping to perpetuate the horrific human rights violations against migrants in Libya.

 

 

ANNEX

TO THE WRITTEN SUBMISSIONS

 

List of relevant publications and statements by the Interveners

in the period between 2013 and 2019

 

 

  1. PUBLICATIONS BY AMNESTY INTERNATIONAL

 

1. Malta: the El Hiblu 1 Case: three teenagers in the dock for daring to oppose their return to suffering in Libya

October 2019

https://www.amnesty.org/en/documents/eur33/1270/2019/en/

 

2. Cut adrift in the Med

September 2019

https://www.amnesty.org/en/latest/campaigns/2019/01/cut-adrift-in-the-med/

 

3. Libya: Abhorrent attack on migrant detention centre must be investigated as a war crime

July 2019

https://www.amnesty.org/en/latest/news/2019/07/libya-investigate-abhorre...

 

4. Italy: refugees and migrants' rights under attack: Amnesty International submission for the UN Universal Periodic Review, 34th session of the UPR Working Group

March 2019

https://www.amnesty.org/en/documents/eur30/0237/2019/en/n/

 

5. Human rights in Libya: Review of 2018

February 2019

https://www.amnesty.org/en/documents/mde19/9919/2019/en/

 

6. Libya: EU’s patchwork policy has failed to protect the human rights of refugees and migrants

November 2018

https://www.amnesty.org/en/documents/mde19/9391/2018/en/

 

7. Between the devil and the deep blue sea: Europe fails refugees and migrants in the central Mediterranean

August 2018

https://www.amnesty.org/en/documents/eur30/8906/2018/en/

 

8. Libya’s dark web of collusion: Abuses against Europe-bound refugees and migrants

December 2017

https://www.amnesty.org/en/documents/mde19/7561/2017/en/

 

9. Europe: a perfect storm: the failure of European policies in the central Mediterranean

July 2017

https://www.amnesty.org/en/documents/eur03/6655/2017/en/

 

10. Italy: losing the moral compass: innuendoes against NGOs which rescue lives in the central Mediterranean

April 2017

https://www.Amnesty.Org/en/documents/eur30/6152/2017/en/

 

11. Hotspot Italy: how EU’s flagship approach leads to violations of refugee and migrant rights

November 2016

https://www.Amnesty.Org/en/documents/eur30/5004/2016/en/

 

12. Refugees and migrants fleeing sexual violence, abuse and exploitation in Libya

July 2016

www.amnesty.org/en/latest/news/2016/07/refugees-and-migrants-fleeing-sex...

 

13. EU risks fuelling horrific abuse of refugees and migrants in Libya

June 2016

www.amnesty.org/en/latest/news/2016/06/eu-risks-fuelling-horrific-abuse-...

 

14. A safer sea: the impact of increased search and rescue operations in the central Mediterranean

July 2015

https://www.amnesty.org/en/documents/eur03/2059/2015/en/

 

15. ‘Libya is full of cruelty’: Stories of abduction, sexual violence and abuse from migrants and refugees

May 2015

https://www.amnesty.org/en/documents/mde19/1578/2015/en/

 

16. Europe's sinking shame: the failure to save refugees and migrants at sea

April 2015

https://www.Amnesty.Org/en/documents/eur03/1434/2015/en/

 

17. Lives adrift: refugees and migrants in peril in the central Mediterranean

September 2014

https://www.Amnesty.Org/en/documents/eur05/006/2014/en/

 

18. Scapegoats of fear: Rights of refugees, asylum-seekers and migrants abused in Libya

June 2013

https://www.amnesty.org/en/documents/MDE19/007/2013/en/

 

 

B. PUBLICATIONS BY HUMAN RIGHTS WATCH

 

1. EU Governments Face Crucial Decision on Shared Sea Rescue Responsibility

October 3, 2019

https://www.hrw.org/news/2019/10/03/eu-governments-face-crucial-decision...

 

2. Libya: Deadly Attack Highlights Disregard for Civilians

EU Containment Policy Helps Keep Migrants in Harm’s Way

July 3, 2019

https://www.hrw.org/news/2019/07/03/libya-deadly-attack-highlights-disre...

 

3. Italy: End Curbs on Rescue at Sea

Rome Should Not Prosecute NGO Ship Captain

June 26, 2019

https://www.hrw.org/news/2019/06/26/italy-end-curbs-rescue-sea

 

4. Italy: Reject Anti-Rescue Proposals

Criminal Penalties Could Deter Saving Lives at Sea

May 16, 2019

https://www.hrw.org/news/2019/05/16/italy-reject-anti-rescue-proposals

 

5. Libya: Detained Migrants at Risk in Tripoli Clashes

Release and Evacuate Them to Safety

April 25, 2019

https://www.hrw.org/news/2019/04/25/libya-detained-migrants-risk-tripoli...

 

6. Libya: Nightmarish Detention for Migrants, Asylum Seekers

EU and Italy Bear Responsibility, Should Condition Cooperation

January 21, 2019

https://www.hrw.org/news/2019/01/21/libya-nightmarish-detention-migrants...

 

7. No Escape from Hell

EU Policies Contribute to Abuse of Migrants in Libya

January 21, 2019

https://www.hrw.org/report/2019/01/21/no-escape-hell/eu-policies-contrib...

 

8. Libya: Migrants Forced off Ship at Libya Port

Misrata Security Forces Use Force After Rescued People Refuse to Land

November 21, 2018

https://www.hrw.org/news/2018/11/21/libya-migrants-forced-ship-libya-port

 

9. Europe: Save Mediterranean Rescue Ship

Aquarius Has Saved Thousands of Lives

October 3, 2018

https://www.hrw.org/news/2018/10/03/europe-save-mediterranean-rescue-ship

 

10. EU/Italy/Libya: Disputes Over Rescues Put Lives at Risk

Allow European Rescues, Agree on Safe Disembarkation

July 25, 2018

https://www.hrw.org/news/2018/07/25/eu/italy/libya-disputes-over-rescues...

 

11. Italy: Migrant Rescue Ship Impounded

Don’t Criminalize Saving Lives

March 19, 2018

https://www.hrw.org/news/2018/03/19/italy-migrant-rescue-ship-impounded

 

12. Italy: Navy Support for Libya May Endanger Migrants

Help for Libyan Coast Guard Risks Complicity in Abuse

August 2, 2017

https://www.hrw.org/news/2017/08/02/italy-navy-support-libya-may-endange...

 

13. EU: Draft Code for Sea Rescues Threatens Lives

Leaked Document Would Tie Nongovernmental Groups’ Hands

July 12, 2017

https://www.hrw.org/news/2017/07/12/eu-draft-code-sea-rescues-threatens-...

 

14. EU: Boat Migration Demands Shared Responsibility

Rescue and Safe Ports Needed as Libyan Authorities Unable to Guarantee Rights or Protect People

July 4, 2017

https://www.hrw.org/news/2017/07/04/eu-boat-migration-demands-shared-res...

 

15. EU: Shifting Rescue to Libya Risks Lives

Italy Should Direct Safe Rescues

June 19, 2017

https://www.hrw.org/news/2017/06/19/eu-shifting-rescue-libya-risks-lives

 

16. EU: Put Rights Above Politics

Outsourcing Migration Responsibility to Libya Fraught with Risks

February 1, 2017

https://www.hrw.org/news/2017/02/01/eu-put-rights-above-politics

 

17. Libya: End ‘Horrific’ Abuse of Detained Migrants

UN Report Details Widespread Torture, Forced Labor, Sexual Violence

December 14, 2016

https://www.hrw.org/news/2016/12/14/libya-end-horrific-abuse-detained-mi...

 

18. EU Policies Put Refugees At Risk

An Agenda to Restore Protection

November 23, 2016

https://www.hrw.org/news/2016/11/23/eu-policies-put-refugees-risk

 

19. EU/NATO: Europe’s Plan Endangers Foreigners in Libya

Migrants, Asylum Seekers Face Killings, Torture, and Rape

July 6, 2016

https://www.hrw.org/news/2016/07/06/eu/nato-europes-plan-endangers-foreigners-libya

 

20. EU: Migrants Seeking Opportunity or Refugees Seeking Protection?

July 28, 2015

https://www.hrw.org/news/2015/07/28/eu-migrants-seeking-opportunity-or-r...

 

21. The Mediterranean Migration Crisis

Why People Flee, What the EU Should Do

June 19, 2015

https://www.hrw.org/report/2015/06/19/mediterranean-migration-crisis/why-people-flee-what-eu-should-do

 

22. EU: Rights Abuses at Home Drive Mediterranean Crisis

Migrants Detail Horrors That Caused Them to Flee

June 19, 2015

https://www.hrw.org/news/2015/06/19/eu-rights-abuses-home-drive-mediterr...

 

23. EU: Mixed Messages on Boat Migration

Augmented Search and Rescue, but Focus Still on Preventing Departure

April 23, 2015

https://www.hrw.org/news/2015/04/23/eu-mixed-messages-boat-migration

 

24. EU: Mediterranean Deaths Warrant Crisis Response

April 19, 2015

https://www.hrw.org/news/2015/04/19/eu-mediterranean-deaths-warrant-cris...

 

25. EU: Intolerable Inaction Costs Lives at Sea

Set Up Robust, Mediterranean-wide Search and Rescue Operation

April 15, 2015

https://www.hrw.org/news/2015/04/15/eu-intolerable-inaction-costs-lives-sea

 

26. EU: Act to Save Lives at Sea

Justice and Home Affairs Council Meeting in Luxembourg

October 8, 2014

https://www.hrw.org/news/2014/10/08/eu-act-save-lives-sea

 

27. Libya: Whipped, Beaten, and Hung from Trees

Detained Migrants, Asylum Seekers Describe Torture, Other Abuse in Detention

June 22, 2014

https://www.hrw.org/news/2014/06/22/libya-whipped-beaten-and-hung-trees

 

28. EU: Make Saving Lives at Sea Top Priority

Step Up Joint Rescue Operations; Resettle More Syrians

June 5, 2014

https://www.hrw.org/news/2014/06/05/eu-make-saving-lives-sea-top-priority

 

29. EU: Improve Migrant Rescue, Offer Refuge

Summit Needs Rights-Based Approach to Boat Migration, Syria Refugees

October 23, 2013

https://www.hrw.org/news/2013/10/23/eu-improve-migrant-rescue-offer-refuge

 

 

C. JOINT STATEMENTS

European Union/Libya: Act Now to Save Lives, Release, Evacuate Detained Refugees and Migrants, joint statement by Human Rights Watch, Amnesty International, and the European Council on Refugees and Exiles (ECRE), 12 July 2019, https://www.amnesty.org/en/latest/news/2019/07/european-union-libya-act-...

 

[1] The Interveners note that in this document the term ‘migrants’ is understood to include any individual on the move outside of their country of nationality or citizenship, including for reasons such as needing international or other protection.

[2] As summarised in N.D. and N.T. v Spain, nos. 8675/15 8697/15, § 49-51 and cases cited therein.

[3] ECtHR, Guide on Article 1 of the ECHR, 31 August 2019, § 28-29, https://bit.ly/2NMPn2r. and Renucci, Jean-François. Introduction to the ECHR: the rights guaranteed and the protection mechanism. Vol. 1. Council of Europe, 2005, p.6, https://bit.ly/36W3YBl

[4] ECtHR Guide on Article 1, §29 and subsequent.

[5] ECtHR Guide on Article 1, §33.

[6] Ilaşcu and Others v. Moldova and Russia, no. 48787/99 § 392

[7] ECtHR Guide on Article 1, §47, Cyprus v. Turkey, no. 25781/94, §§ 76-77; Catan and ors. v. Moldova and Russia nos. 43370/04 8252/05 18454/06, § 122 and others.

[8] In Mozer v. The Republic of Moldova and Russia, no. 11138/10, §101, the Court accepted that there was ‘no evidence of any direct involvement of Russian agents in the applicant’s detention and treatment’.. no.

[9] Catan and ors., above in full, § 121, on Russia’s various forms of support.

[10] Catan and others., §106.

[11] See summary of political, military and economic developments considered in Catan, as listed by Mozer v Moldova and Russia, no. 11138/10 at §103.

[12] Ivantoc and ors v Moldova and Russia, no. 23687/05, §119: Russia ‘continued to do nothing either to prevent the violations of the Convention allegedly committed...’. Cited by Mozer at §106

[13] Bilateral agreement of 29 December 2007 and the Treaty on Friendship of 30 August 2008, particularly Article 19 - provision for efforts to prevent clandestine immigration in the countries of origin of migratory flows.

[14] AI, Libya’s dark web of collusion: Abuses against Europe-bound refugees and migrants, December 2017, p.42

[15] AI, Lives adrift: Refugees and migrants in peril in the central Mediterranean, September 2014

[16] This was then backed up by the members of the European Council in their Malta Declaration, adopted the following day, https://www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/.

[17] Memorandum d'intesa sulla cooperazione nel campo dello sviluppo, del contrasto all'immigrazione illegale, al traffico di esseri umani, al contrabbando e sul rafforzamento della sicurezza delle frontiere tra lo Stato della Libia e la Repubblica Italiana, 2 February 2017, https://www.asgi.it/wp-content/uploads/2017/02/Libia.pdf

[18] See Annex for a list of the Interveners’ relevant publications between 2013 and 2019. 

[19] AI, Libya’s dark web of collusion, December 2017, p.45. A project agreement between ITG and EU Commission recognized that an efficient LCGN would be instrumental to border control activities to tackle irregular migration. https://www.guardiacostiera.gov.it/stampa/Pages/isf-bv-051.aspx.

[21] In July 2017 the EU Trust Fund for Africa approved a 46.3million euro programme largely focussed on increasing the operational capacity of the LCGN through, inter alia, setting up operational rooms to enable the LCGN to co-ordinate operations, assisting with the establishment of a Libyan MRCC and demarcating and declaring a Libyan SAR zone. See https://bit.ly/33NU1nu and AI, Libya’s Dark Web of Collusion, above, p.45.

[22] The first declaration was then withdrawn due to technical issues. At a press conference in Tripoli on 10 August 2017, Libyan authorities announced the declaration and stated that foreign vessels would not be allowed to enter the zone without prior authorization, in breach of law of the sea principles regarding freedom of navigation in the high seas (UNCLOS Art.87).

[23] During the same month, the ICG wrote to AI, indicating that work towards the establishment of a MRCC in Libya was still at an initial stage. Letter dated 1 December 2017, Ref. 0149176, in file with AI. A presentation by the ICG, dated 28 February 2018, included a timeline for the project, indicating that only from July 2021 “The Libyan SAR Region is under the LCG control”, https://bit.ly/2Kc78am.

[25] Training of LCGN and Navy staff was carried out via EunavforMed Operation Sophia and through Italian programmes. See: https://bit.ly/2JNBRdO and www.facebook.com/EunavforMed/posts/1518004711608771

[26] AI, Libya’s dark web of collusion, pp.34-36.

[27] See relevant press releases by the Italian Ministry of Interior at: https://bit.ly/32E6BV4 and https://bit.ly/33D90Rp.

[28] Law no. 232, 11 December 2016, Article 1 c.621 174 Italian Ministry of Foreign Affairs, Director General for Italians abroad and migration policies, Decree 4110/47 of 28 August 2017, www.asgi.it/wp-content/uploads/2017/11/Allegato_2.pdf

[29] In June 2016, the EU amended the mandate of the operation to include capacity-building and training of the LCGN. As of November 2017, 195 Libyan personnel had undergone training. AI, Libya’s dark web of collusion, p.45.

[30] Italian Chamber of Deputies, Deliberazione del consiglio dei ministri in merito alla partecipazione dell’Italia alla missione internazionale in supporto alla guardia costiera Libica, 28 July 2017, at: https://bit.ly/32iCPVD

[31] Ibid., in Libya’s dark web of collusion the Italian mission aims to provide ‘technical and logistical support and advice to the Libyan navy, including the LCG; protection for Libyan vessels involved in activities against irregular migration; reconnaissance capabilities to determine what operations should be carried out…support to set up a centre for co-ordinating operations’.

[32] Italian Navy vessels rotate in this role. The first to be deployed was ship Tremiti (August-December 2017), followed by Capri (December 2017 - March 2018) and Caprera (March-September 2018).

[33] Tribunale di Ragusa, Ufficio del Giudice per le indagini preliminari, Decreto di rigetto di richiesta di sequestro preventivo, 16 April 2018, https://bit.ly/34CM9p6. The decision was confirmed in May, see: Giornale di Sicilia, Il Tribunale del Riesame di Ragusa conferma il dissequestro dell'Ong Open Arms, 17 May 2018

[34] Media investigations have highlighted how the LCGN has used lines of Italian vessels to communicate, that its emergency lines are not fully functional, and that its officers in charge of answering phone calls often do not speak English. See: https://bit.ly/2rAAAAJ and https://bit.ly/2p981cH.

[35] Italian Ministry of Defence, Difesa – Marina Militare: unità della Guardia Costiera libica effettua prima operazione di salvataggio dopo le verifiche di efficienza, 27 September 2017, https://bit.ly/36Sq4F0, Also, AI, Libya’s dark web of collusion.

[36] HRW, EU: Shifting Rescue to Libya Risks Lives, June 2017, https://bit.ly/32BUYxO

[37] AI, Libya’s dark web of collusion, December 2017, p.48.

[38]AI, Libya’s dark web of collusion, December 2017, p.48

[39] Saadi v. the UK, no. 13229/03 § 56, Hirsi § 123. 

[40] Hirsi, § 146

[41] Hirsi, § 146 citing T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000-III, and M.S.S. v. Belgium and Greece, cited above, § 342), and 147 “It is a matter for the State carrying out the return to ensure that the intermediary country offers sufficient guarantees to prevent the person concerned being removed to his country of origin without an assessment of the risks faced’. This Court has provided detailed guidance on the requirements for State’s assessment of whether return decisions may expose individuals to risks under this Article. See: F.G.  v. Sweden, no. 43611/11, §111.

[42]Hirsi, §§ 146-47

[43] Hirsi § 137

[44] See Annex listing publications from the Interveners

[45] HRW, EU: Shifting rescue to Libya risks lives, June 2017; AI, Libya’s dark web of collusion, December 2017; HRW, Disputes Over Rescues Puts Lives At Risk, July 2018; HRW, No Escape from Hell, January 2019

[46] AI, Libya’s dark web of collusion, pp.26-33, HRW, No Escape from Hell, January 2019

[47] A December 2016 report from the United Nations Office of the High Commissioner for Human Rights and the UN mission in Libya documented widespread malnutrition, forced labor, illness, beatings, sexual abuse, torture, and other abuses in immigration detention centres in Libya: UN Office of the High Commissioner for Human Rights (OHCHR), "Detained and Dehumanised" - Report on Human Rights Abuses Against Migrants in Libya, 13 December 2016, https://bit.ly/2Q6XqKo

[48] UN, Report of the Secretary-General pursuant to Security Council resolution 2312 (2016), 7 September 2017, §42, www.un.org/ga/search/view_doc.asp?symbol=S/2017/761; “The conditions of detention in most facilities are characterized by chronic severe overcrowding, poor hygiene, and a lack of access to basic necessities or adequate medical care. Undernutrition in adults and children is rampant, particularly in facilities outside Tripoli. In some facilities, the conditions of detention in themselves may amount to torture or other ill-treatment.”

[49] UN High Commissioner for Refugees (UNHCR), UNHCR Position on Returns to Libya - Update II, September 2018, available at: https://www.refworld.org/docid/5b8d02314.html

[50] AI, Libya’s dark web of collusion, December 2017, p.35.

[52] AI, Libya’s dark web of collusion, p. 37, citing: among others, Reuters, 15 August 2017, https://reut.rs/2Cni94E

[53]AI, Libya’s dark web of collusion, citing Information shared by Mission Lifeline via email on 5 October 2017. See also Steve Scherer, Rescue ship says Libyan coast guard shot at and boarded it, seeking migrants, Reuters, 26 September 2017, https://reut.rs/2NU7Wlg.

[54] OHCHR, "Detained and Dehumanised", abovepp.19-20

[55] HRW, Disputes over rescues puts lives at risk, July 2018, https://bit.ly/36Sumfn

[57] HRW, EU: Shifting rescue to Libya risks lives, Italy should direct safe rescues, June 2017; https://www.hrw.org/news/2017/06/19/eu-shifting-rescue-libya-risks-lives;

74 HRW, No escape from hell, January 2019, citing: United Nations, “Interim Report of the Panel of Experts Established Pursuant to Resolution 1973 (2011) Concerning Libya.” On file with Human Rights Watch.

[59] UN, Final report of the Panel of Experts on Libya established pursuant to resolution 1973 (2011), 1 June 2017, undocs.org/en/S/2017/466, § 104

[60]https://www.un.org/press/en/2018/sc13371.doc.htm and https://bit.ly/32CH6nh. In 2019 it emerged that, Abd al Rahman al-Milad, head of the Zawiya branch of the LCGN, and, according to the UN report, ’directly involved in the sinking of migrant boats using firearms’, was at meetings with Italian officials in Mineo and Rome in May 2017: https://bit.ly/2Cz0AOU (ITA) https://bit.ly/2X5eces (ENG)

[61] AI, Libya’s dark web of collusion, pp.37-40.

[62] AI, Libya’s dark Wweb of Ccollusion

[63] AI, Libya’s dark web of collusion, p.20, citing Law no. 6 of 1987 Organizing the Exit, Entry and Residence of Foreign Nationals in Libya, 20 June 1987

[64] HRW, No escape from hell, January 2019

[65] The presence of UN agencies at points of disembarkation in Libya has limited benefits, as Libyan authorities continue to perpetrate violations and those disembarked are immediately transferred to detention centres. See e.g. IOM, IOM deplores death of migrant, killed Thursday upon disembarkation in Tripoli, 19 September 2019,

https://www.iom.int/news/iom-deplores-death-migrant-killed-thursday-upon....

[66] AI, Libya’s dark web of collusion, pp.30-33.

[67] HRW visited four DCIM centres in early July 2018. These were Tajoura and Ain Zara centres, both located on the outskirts of Tripoli, Zuwara centre in the town of the same name near the border with Tunisia, and the centre in the area of al-Karareem, near Misrata, a city to the east of Tripoli. They witnessed overcrowding, unsanitary conditions, inadequate health care, HRW, No escape from hell, January 2019.

[68] HRW, No escape from hell, July 2019, includes testimonies from detainees in various detention centres who have endured or witnessed abuses: one woman held in detention after an interception at sea said they “beat you with a pipe ... One man, they beat him so bad and they gave him electric shocks ...a man from Sierra Leone tried to escape but they caught him. They beat him unconscious”; a woman who was seven-months’ pregnant, described a guard beating her with a hose; another confirmed: “There is ill treatment here and beatings ... they beat women and flog women on the hand even if you are pregnant. One man tried to escape. They tied his neck like a dog to his legs so he cannot move his legs. They beat him seriously.” Another intercepted at sea confirmed “they will beat us with wooden sticks or plastic tubes”.

[69] See also: UNSMIL/OHCHR, Desperate and Dangerous: Report on the human rights situation of migrants and refugees in Libya, 20 December 2018, pp.38-47.

[70] AI, Libya’s dark web of collusion, December 2017.

[71] A list is provided in AI, Libya’s Dark web of collusion, December 2017, pp. 56-58.

[72] La Stampa, Giro: “Fare rientrare quelle persone vuol dire condannarle all’inferno”, 6 August 2017, https://www.lastampa.it/cronaca/2017/08/14/news/giro-fare-rientrare-quel...

[73] AI, Libya’s Dark web of collusion, December 2017, p.58. Original letter in file with AI.

 

 

Posted: January 1, 1970, 12:00 am

Video

Croatia Slams Door on Migrants

Abuses Should Rule Out Schengen Accession

 (Budapest) – The European Commission’s October 22, 2019 conclusion that Croatia is ready to join the Schengen Area wilfully brushes over evidence of violent pushbacks of migrants at its borders, Human Rights Watch said today in releasing a video documenting the abuses.

The European Commission’s action sends the message that serious human rights abuses are no obstacle to Schengen accession. The European Commission should investigate the situation instead of rewarding Croatia.

“Croatia’s unlawful and violent summary returns of asylum seekers and migrants should disqualify it from joining the Schengen Area,” said Lydia Gall, senior Eastern Europe and Balkans researcher at Human Rights Watch. “Ignoring Croatia’s abuses of migrants at its borders makes the notion that Schengen membership is contingent on respect for human rights just meaningless talk.”

The Human Rights Watch video features interviews with people shortly after they were summarily returned to Bosnia by Croatian police in August. It includes interviews with other pushback victims and witnesses of pushbacks, including the mayor of Bihac, a Bosnian town across the border from Croatia. It also shows credible secretly recorded footage of Croatian police officers escorting groups of migrants across the border to Bosnia and Herzegovina without following due process.

A migrant who claims he was beaten by Croatian police while attempting to cross the border to Croatia shows his injury at a factory hall turned migrants facility in Bihac, Bosnia-Herzegovina, Wednesday, March 13, 2019.

© 2019 Darko Bandic/AP Photo

In its assessment, the European Commission acknowledges that denying potential asylum seekers access to the asylum procedure and allegations of use of force by Croatian law enforcement officials remain a challenge. It concludes, however, that the creation of a system to monitor Croatian border guards’ actions and the Croatian government’s promises to investigate allegations are sufficient to conclude that Croatia has done enough “to fulfil its commitment in relation to the protection of human rights.”

The summary return of asylum seekers without consideration of their protection needs is contrary to European Union asylum law, the EU Charter of Fundamental Rights, and the 1951 Refugee Convention.

Human Rights Watch has documented summary collective expulsions from Croatia to Serbia and Bosnia and Herzegovina since 2016. In some instances, Croatian border officials have used force, pummeling people with fists, kicking them, and making them run gauntlets between lines of police officers. Violence has been directed against women and children. Unlike with lawful deportations, migrants are not returned at ports of entry, but rather in remote border areas, including, at times, forced to cross freezing streams.

The United Nations High Commissioner for Refugees (UNHCR), the Council of Europe’s Human Rights Commissioner, and other nongovernmental organizations have echoed Human Rights Watch concerns. Although President Kolinda Grabar-Kitarovic in July acknowledged that authorities engage in pushbacks, Croatian authorities have repeatedly denied the allegations, including to Human Rights Watch, and in some cases have accused aid groups and victims of fabricating facts to make Croatian police look bad.

Croatian authorities have not taken credible steps to halt the practice and to hold those responsible to account, Human Rights Watch said. In a meeting with Human Rights Watch in May, the Interior Ministry state secretary, Terezija Gras, said the Croatian police would investigate any complaints filed by migrants about police mistreatment but could not say how many complaints the authorities had received. Nor could she explain how a migrant pushed back from Croatia to Bosnia and Herzegovina would be able to a file a complaint with the authorities in Croatia.

To join the Schengen area – where 22 EU member states and 4 non-EU countries have effectively abolished border and passport controls – member states have to fulfil certain criteria set out in EU law, including respect for the right to seek asylum. The EU Schengen Borders Code Article 4 says that member states should act in compliance with EU law and “obligations related to access to international protection, in particular the principle of non-refoulement [banning the return to a country where they would face torture, cruel, inhuman and degrading treatment or other irreparable harm] and fundamental rights.” Pushbacks effectively preventing people from accessing the Croatian asylum procedure violate Article 4.

Before using the European Commission’s report to approve Croatia’s full access to Schengen, the European Council should call for a reassessment of Croatia’s compliance with the EU Schengen Borders Code. It should press Croatia to demonstrate concrete progress by putting in place an independent and effective monitoring mechanism and require evidence of thorough investigations of summary returns of migrants and asylum seekers at its borders and allegations of Croatian guards using violence against them. The Commission should also initiate legal enforcement action against Croatia for violating EU laws, Human Rights Watch said.  

“Letting Croatia join Schengen when migrants and asylum seekers continue to be brutally pushed back would be an EU green light for abuses,” Gall said. “The European Commission should not just accept Croatia’s empty promises, but ensure that Schengen criteria are truly met, which is clearly not happening now.”

Posted: January 1, 1970, 12:00 am

A Greek national flag flutters atop the parliament building in Athens, Greece, January 28, 2019.

© 2019 REUTERS/Alkis Konstantinidis

(Athens) – Greece’s parliament should scrap provisions in a new bill that threaten to limit asylum seekers’ access to protection, Human Rights Watch said today. The draft law, to be debated in parliament this week, would reduce safeguards for asylum seekers from countries like Afghanistan, Syria, and Iraq in an effort to block the arrival of migrants and refugees in Greece, per a 2016 European Union (EU) migration deal with Turkey.

“The bill is a naked attempt to block access to protection and increase deportations in the face of the recent increase in arrivals,” said Eva Cossé, Greece researcher at Human Rights Watch. “The Greek government should instead prioritize resolving the humanitarian crisis that the deeply flawed deal with Turkey has caused for asylum seekers, and ensure a fair and efficient asylum procedure.”

The bill would make it easier to detain asylum seekers for longer periods. It would scrap important protections for vulnerable people, including unaccompanied children, and it would introduce numerous procedural changes that impede access to a fair asylum process and compromise the right of appeal.

The bill also introduces stricter rules for receiving asylum seekers, delays access to the right to work, narrows the definition of family, and imposes more burdens on torture victims in being recognized as such.

The complex 237-page bill on “international protection and other provisions” was introduced on October 21, 2019 after a rushed six-day public consultation period.

On October 24, the United Nations refugee agency, UNHCR, said the draft law “will endanger people who need international protection,” noting the risk that people could be returned to a country where their life or freedom would be threatened. The Greek National Commission for Human Rights and numerous nongovernmental organizations (NGOs) have expressed concerns about the proposals and the accelerated way they were submitted.

The European Commission, which financially supports migration management in Greece, should openly press the Greek government to ensure that any changes in the law will include safeguards required by EU standards. The commission should promote a meaningful responsibility-sharing system among EU member states to ensure fair and efficient asylum procedures.

The bill comes at a time of increased arrivals to the Greek islands. Since the beginning of 2019, 53,462 asylum seekers have reached islands in the Aegean Sea from Turkey, compared to 42,010 during the same period in 2018. The situation on the Greek islands, where 34,400 women, men, and children are trapped in abysmal conditions, has reached a crisis point. Under a containment policy in place since the March 2016 EU-Turkey agreement, Greek authorities confine asylum seekers on the Aegean islands until their asylum claims are adjudicated, which can take months or even years.

Facilities are severely overcrowded, with significant shortages of basic shelter and unsanitary, unhygienic conditions. At-risk groups such as people with disabilities are often unable to access basic services, such as water, sanitation, and hygiene facilities. Long lines for poor quality food, mismanagement, and lack of information contribute to a chaotic and volatile atmosphere.

“The response to the situation on the Greek Islands should be to ensure a properly equipped asylum system with meaningful responsibility-sharing,” Cossé said. “Greece should abandon the concept that limiting protection for those who escaped conflict and persecution is the way to deal with this situation.”

For details of problematic provisions in the bill, please see below.

Officials from the EU border agency Frontex on a boat between Lesbos, Greece and Dikili, Turkey, deporting migrants on April 4, 2016.

© 2016 Getty

Human Rights Watch highlights the following key concerns:

More Detention

The bill increases the maximum duration of detention of asylum seekers from three months to 18 months. It allows for detaining people who were not detained when they initially applied for asylum. And it scraps the automatic review of administrative detention decisions by a judge, affecting the right of asylum seekers to an effective remedy.

Under international standards, asylum seekers should not, as a rule, be detained. Although EU law allows for immigration-related detention of up to 18 months, it also allows member states to adopt more favorable provisions. EU law also stresses that a person should not be detained solely because they are seeking international protection, and requires states to provide judicial review of the lawfulness of detention.

Fewer Protections for Children

The bill allows the asylum claims of unaccompanied children to be processed under “accelerated” border procedures. The use of such accelerated procedures in national asylum systems has caused concerns about rushed and poor-quality decisionmaking, especially in complex cases. This regression from the current law, which provides for processing asylum claims from unaccompanied children under the regular procedure, would be contrary to the best-interest-of-the-child principle. It would also infringe on EU law, which requires giving asylum claims by unaccompanied children appropriate treatment that respects protections for children.

In addition, the bill perpetuates the detention of unaccompanied children under the so-called “protective custody” regime, even though the European Court of Human Rights (ECtHR) has repeatedly determined that such detention violates children’s rights. Children should never be detained for migration purposes. Detention can cause serious, long-term harm to children’s development, including anxiety, depression, post-traumatic stress, and memory loss.

Human Rights Watch has documented that children detained in Greece are forced to live in unsanitary conditions, often alongside adults they do not know, and that the police have been abusive at times and ill-treated them.

Unfair Procedures

The bill introduces numerous changes to the asylum procedure that would make it harder to receive a fair evaluation and to appeal negative decisions. These include:

  • Asylum seekers currently guaranteed access to the regular asylum procedure because they belong to certain vulnerable groups protected under the law would be subjected to the accelerated border procedure in certain cases. People diagnosed with post-traumatic stress (PTSD), including survivors of shipwrecks, would no longer qualify as vulnerable asylum seekers.
     
  • The draft law would allow the authorities to forgo an individualized examination of an asylum applicant’s relationship to a third country when that country is designated as generally safe and included in a national list of safe third countries. The draft law would also lower the standard of protection a third country would have to provide to make an asylum seeker’s claim inadmissible in Greece.
     
  • Under current law, a “first country of asylum” is a country that the asylum seeker has passed through which would provide the applicant “effective protection,” a term that has been defined and analyzed in the context of applying the safe-third-country concept. Under the draft law this would be ratcheted down a notch to merely “adequate protection,” which is not further defined or analyzed. The vagueness and apparent downgrading of the sufficiency of protection in order for a first country of asylum to be considered safe raises concerns about rushed and poor-quality decision making.
     
  • The bill creates a list of so-called safe countries of origin, with nationals of those countries subjected to an accelerated border procedure that presumes they don’t need international protection. But countries that appear calm on the surface may, in fact, be powder kegs ready to explode, as can be seen over the years in places as diverse as Rwanda, Syria, and Ukraine. Once a country is listed as a “safe country of origin,” a government is not likely to act quickly to remove that country from the list, even as piles of dead bodies quickly mount or as the first waves of refugees make their way to neighboring countries. [In this context, it should be remembered that the European Commission recommended including Turkey on a list of safe countries of origin in 2015.
     
  • Police officers and members of the armed forces would conduct first instance admissibility interviews in cases of mass arrivals and massive lodging of asylum applications. Such a provision would be a serious setback that would jeopardize the independence of the asylum process. In 2007, when the asylum procedure was entirely in the hands of the Greek police, the approval rate stood at 0.04 percent. At that time, Human Rights Watch attributed the minuscule approval rate to “an institutional culture that takes a presumptively negative view of asylum seekers,” and added that,“Police interviewers do not have sufficient specialized training or independence to conduct proper interviews.”
     
  • The bill puts a disproportionate burden on asylum seekers. It includes complex and demanding procedures, which an asylum seeker cannot be expected to follow, exacerbated by the gaps in legal aid. If an asylum seeker does not comply with some specific procedural requirements, their application may be deemed to have been tacitly withdrawn and can be rejected without being substantively examined. In some cases, an appeal can be difficult with a very short seven-day filing limit, and requirements to provide full grounds for appeal, even in the absence of being able to get legal counsel during this period. There is also no guarantee that filing an appeal will suspend deportation until it is heard.That would undermine the right to appeal as the effective remedy as required by international and European law.
Posted: January 1, 1970, 12:00 am

Migrants and asylum seekers in camp Vucjak where 2,500 people are now living in inhumane conditions without water, electricity, and medical care, Bihac, Bosnia and Herzegovina, October 2019. 

© 2019 Private

Over a year after Human Rights Watch first criticized Bosnia’s failure to protect the basic rights of migrants and asylum seekers, the International Organization for Migration (IOM) is warning of a fast-developing humanitarian emergency in a makeshift camp near the border with Croatia. Over 20,000 migrants and asylum seekers have arrived in Bosnia since January 2019, but violent and unlawful pushbacks from Croatia have created a bottleneck on the border, leaving many stranded in unsafe conditions.

The Vučjak tent camp was already overcrowded with 700 migrants living without running water, electricity, or medical care. But on October 16, police transferred around 1,700 more people to the camp from Bihać, the largest town in the area.

Built on a landfill near a field of active landmines left over from the war, conditions at Vučjak were already so deplorable that IOM has refused to operate there since Bihać city administration set up the camp in June 2019. Earlier this month the United Nations Special Rapporteur for Human Rights of Migrants called the camp unlivable for humans, which the UN office in Bosnia also echoed this week, calling for the immediate relocation of all migrants to adequate accommodation. Part of the problem, Šuhret Fazlić, the mayor of Bihać, told Human Rights Watch recently, is the failure of central authorities to provide shelter that meets acceptable humanitarian standards for the roughly 6,000 migrants in his town. The Council of Europe Human Rights Commissioner urged the government to provide help to local authorities to handle the crisis in a manner compliant with human rights standards.

Fazlić is now threatening to cut services that the city has been providing to the camp, including water and sanitation. Meanwhile, the Red Cross, the only organization still operating in Vučjak, has announced it may need to halt operations due to the deteriorating situation in the camp. Bosnian authorities should act quickly to move migrants and asylum seekers from Vučjak to a place with safe and sanitary living conditions.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Building owned by the Marseille Church, where about 320 migrants currently live, including families and about 170 unaccompanied migrant children, Marseille, France, October 2019. 

© 2019 Collectif 59 Saint-Just

In Marseille, France, unaccompanied migrant children whom child protection authorities failed to provide a living place for have been squatting in an unoccupied building owned by the Catholic church. Now, even though it’s the Bouches-du-Rhône department that has failed to protect them, the authorities are prosecuting the children for illegal occupation of this building.

This perverse situation illustrates the French authorities’ shortcomings in protecting these children. About 170 unaccompanied children live in the building, according to the Collectif 59 St-Just and Réseau éducation sans frontières (Education Without Borders), groups working with youth.

The squat is overcrowded and infested with bed bugs, and is wholly inappropriate for children. But because the child protection system didn’t find them a place to live as it should have, the children view the squat as their only solution.|

Some of the youth being brought to court have been legally recognized as children and should be taken into care by child protection services. Others are in the process of having their age assessed, which sometimes takes weeks, and should be placed in shelters. According to local groups, as of yesterday, 36 children who had received a placement order from a judge, and should legally have been taken into care, were still living in the squat.

Age assessment in France has not always been fair, and Human Rights Watch has documented inappropriate age assessment procedures in Paris and the Hautes-Alpes. However, in Marseille, even some who were recognized as children after these procedures are left in the streets.

On October 11, in a case brought before Marseille’s administrative court on behalf of a migrant child, the court acknowledged that the squat’s living conditions are not acceptable for unaccompanied migrant children. It ordered the department to provide appropriate accommodation, as well as to take the child into care.

Even though the authorities’ failings have forced the children to live in precarious conditions, it is the children, because of the eviction proceedings, who have had to appear before a court. This is wrong. It’s past time for authorities to assume responsibility for these children, including those awaiting an age assessment, and find them a safe place to live and give them the care to which they are entitled.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

A Syrian man reads inside his tent at a makeshift camp outside Moria on the northeastern Aegean island of Lesbos, Greece, May 5, 2018.

© 2019 AP Photo/Petros Giannakouris

The Greek islands are under the spotlight again, as a new wave of tragic events has hit asylum seekers trapped there. On 29 September, a big fire broke out in Moria - the notorious camp on the island of Lesbos - killing one woman, and injuring at least nine more people, including a baby, the health ministry reported.

On 24 September, a truck killed a five-year-old Afghan boy who was playing just outside Moria.

The number of asylum seekers crossing the Aegean from Turkey is also increasing.

With camps already overcrowded, conditions are horrific for asylum seekers and migrants trapped there. According to the government's most recent figures, 26,753 women, men and children live in camps designed for about 6,300.

The number has almost doubled since June.

But while the numbers have increased, neither the horrible conditions nor the flawed policies that cause them are new. Underinvestment, a poorly functioning asylum system, and a deliberate policy choice to confine asylum seekers to islands has left thousands trapped there for months or years in inhuman and degrading conditions.

Forcing migrants and asylum seekers to remain on the islands was ostensibly to expedite their return to Turkey under the March 2016 EU-Turkey deal.

But on 11 September, Gerald Knaus, head of a research organisation whose ideas inspired the EU-Turkey deal, wrote that: "The situation on Greek islands is unacceptable, the asylum system on the verge of collapse. This is a moment of truth."

This is indeed a moment of truth.

And the real challenge is not the number of arrivals by sea on the Greek Islands, but the unjustified suffering of thousands of people.

The crisis narrative leads only to security-driven responses that put asylum seekers' rights and dignity second.

The reality is that very few of those stuck on the islands have been returned to Turkey or to their countries of origin. Most can't be returned as Turkey is not a safe country for them.

And while Greek authorities have transferred some people to the mainland, they have refused to change the containment policy, even after a high court ruling.

Meanwhile, many people are sleeping in tents in makeshift camps around government-run facilities, or just out in the open.

They face severe unsanitary, unhygienic conditions, and don't have access to most basic services such as water and food. Medical care, trauma counselling, and mental health support are inadequate. Physical and gender-based violence are quite common.

Almost 1,300 unaccompanied migrant and asylum-seeking children are living in this insecure environment. Along with thousands of other school-age children, they are out of school, effectively denied education.

This has been going on for four years now.

Deliberate chaos

Aid groups say that about 7,000 people have received the green light to move to the mainland but transfers are extremely slow due to the lack of organisation, and of available accommodation.

But even when they are able to move, it won't solve the problem. The lack of a permanent relocation system for asylum seekers to other European countries as well as the long delays in processing family reunification requests only makes the situation worse.

The chaos on the Greek islands is not the evidence of Europe's inability to manage migration - but of its deliberate unwillingness to do so.

The Greek government needs to improve how it meets its legal obligation toward asylum seekers, including improving reception conditions and procedures.

It needs a long-term strategy that takes into account both the benefits of refugee integration and the needs of local host communities.

And European leaders need to take on their share of responsibility with a permanent system for receiving asylum seekers, processing their asylum applications and speeding family reunification to alleviate the burden on Greece.

Last week's discussion on the 'central Mediterranean route' in Malta should offer inspiration to Greece and EU leaders.

What Greece needs is for its new government to have the courage to say what everyone knows needs to happen, namely that the large-scale returns to Turkey are off the table, that the island containment policy is unsustainable and that the asylum system needs to be properly resourced.

And Greece also needs its fellow EU member states to work together to create a meaningful responsibility-sharing system to treat people with dignity and provide them with fair and efficient asylum procedures.

Author: Human Rights Watch, Human Rights Watch
Posted: January 1, 1970, 12:00 am

Italy's Giovanna Epis is pushed in a wheelchair during the women's marathon at the World Athletics Championships, in Doha, Qatar, September 29, 2019.

© 2019 Grigory Sysoev / Sputnik via AP

Nearly half the athletes participating in the women’s marathon at the IAAF World Athletics Championships in Doha on Sunday pulled out of the race in what The Telegraph described as “shocking scenes of multiple athletes collapsing in distress.” Despite starting the race at midnight, runners were battling 30 Celsius temperatures and humidity levels above 80 percent.

“The humidity kills you,” said one runner who did manage to cross the finish line.

In response, the IAAF said they had done everything possible to minimize heat-related risks, including recruiting leading medical experts to monitor weather conditions, more medical staff on site, and increasing the number of refreshment points along the course. Organizers also proudly proclaimed no athlete succumbed to heat stroke following the race.  

Watching this unfold, it is impossible not to reflect on the thousands of migrant construction workers in Qatar who do grueling work in similar weather conditions for up to 12 hours a day for six, and sometimes even seven, days a week, with woefully less protections in place.

Two years ago, Human Rights Watch released a report on the failure of the government to implement adequate heat regulations to protect the lives of workers toiling away outdoors. The report also documented the government’s lack of transparency on migrant worker deaths.

Today, despite repeated warnings of potentially fatal heat-related illnesses and precise recommendations on how to improve working conditions for migrant workers, heat protection regulations for workers in Qatar still only prohibit outdoor work at midday hours during the hottest summer months of the year. Authorities are also still refusing to report how many migrant workers died since 2012 and to seriously investigate why.

Will images of elite runners tumbling to the ground in exhaustion and being wheeled off course by medical teams spur athletes, journalists, event organizers, and international spectators to pressure Qatar to finally make migrant workers’ lives a priority? It should. Could that prompt Qatar to do so before the next and by far the biggest sports event in the world takes place in Doha in three years – the 2022 FIFA World Cup? After all, it is migrant workers who continue to shoulder the burden of building and delivering the mega event – and they are doing so, day after day, in the same oppressive heat that brought down the runners.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Migrants applying for asylum in the United States go through a processing area at a new tent courtroom at the Migration Protection Protocols Immigration Hearing Facility, September 17, 2019, in Laredo, Texas. 

© 2019 AP Photo/Eric Gay

(Ciudad Juarez, Mexico) –The Trump administration has drastically expanded its “Remain in Mexico” program while undercutting the rights of asylum seekers at the United States southern border, Human Rights Watch said today. Under the Migrant Protection Protocols (MPP) – known as the “Remain in Mexico” program – asylum seekers in the US are returned to cities in Mexico where there is a shortage of shelter and high crime rates while awaiting asylum hearings in US immigration court.

Human Rights Watch found that asylum seekers face new or increased barriers to obtaining and communicating with legal counsel; increased closure of MPP court hearings to the public; and threats of kidnapping, extortion, and other violence while in Mexico.

“The inherently inhumane ‘Remain in Mexico’ program is getting more abusive by the day,” said Ariana Sawyer, assistant US Program researcher at Human Rights Watch. “The program’s rapid growth in recent months has put even more people and families in danger in Mexico while they await an increasingly unfair legal process in the US.”

The United States will begin sending all Central American asylum-seeking families to Mexico beginning the week of September 29, 2019 as part of the most recent expansion of the "Remain in Mexico" program, the Department of Homeland Security acting secretary, Kevin McAleenan, announced on September 23.

Human Rights Watch concluded in a July 2019 report that the MPP program has had serious rights consequences for asylum seekers, including high – if not insurmountable – barriers to due process on their asylum claims in the United States and threats and physical violence in Mexico. Human Rights Watch recently spoke to seven asylum seekers, as well as 26 attorneys, migrant shelter operators, Mexican government officials, immigration court workers, journalists, and advocates. Human Rights Watch also observed court hearings for 71 asylum seekers in August and analyzed court filings, declarations, photographs, and media reports.

“The [MPP] rules, which are never published, are constantly changing without advance notice,” said John Moore, an asylum attorney. “And so far, every change has had the effect of further restricting the already limited access we attorneys have with our clients.”

Beyond the expanded program, which began in January, the US State Department has also begun funding a “voluntary return” program carried out by the United Nations-affiliated International Organization for Migration (IOM). The organization facilitates the transportation of asylum seekers forced to wait in Mexico back to their country of origin but does not notify US immigration judges. This most likely results in negative judgments against asylum seekers for not appearing in court, possibly resulting in a ban of up to 10 years on entering the US again, when they could have withdrawn their cases without penalty.

Since July, the number of people being placed in the MPP program has almost tripled, from 15,079 as of June 24, to 40,033 as of September 7, according to the Mexican National Institute of Migration. The Trump administration has increased the number of asylum seekers it places in the program at ports of entry near San Diego and Calexico, California and El Paso, Texas, where the program had already been in place. The administration has also expanded the program to Laredo and Brownsville, Texas, even as the overall number of border apprehensions has declined.

As of early August, more than 26,000 additional asylum seekers were waiting in Mexican border cities on unofficial lists to be processed by US Customs and Border Protection as part the US practice of “metering,” or of limiting the number of people who can apply for asylum each day by turning them back from ports of entry in violation of international law.

In total, more than 66,000 asylum seekers are now in Mexico, forced to wait months or years for their cases to be decided in the US. Some have given up waiting and have attempted to cross illicitly in more remote and dangerous parts of the border, at times with deadly results.

As problematic as the MPP program is, seeking asylum will likely soon become even more limited. On September 11, the Supreme Court temporarily allowed the Trump administration to carry out an asylum ban against anyone entering the country by land after July 16 who transited through a third country without applying for asylum there. This could affect at least 46,000 asylum seekers, placed in the MPP program or on a metering list after mid-July, according to calculations based on data from the Mexican National Institute of Migration. Asylum seekers may still be eligible for other forms of protection, but they carry much higher eligibility standards and do not provide the same level of relief.

Human Rights Watch contacted the Department of Homeland Security and the US Justice Department’s Executive Office for Immigration Review with its findings and questions regarding the policy changes and developments but have not to date received a response. The US government should immediately cease returning asylum seekers to Mexico and instead ensure them meaningful access to full and fair asylum proceedings in US immigration courts, Human Rights Watch said. Congress should urgently act to cease funding the MPP program. The US should manage asylum-seeker arrivals through a genuine humanitarian response that includes fair determinations of an asylum seeker’s eligibility to remain in the US. The US should simultaneously pursue longer-term efforts to address the root causes of forced displacement in Central America.

“The Trump administration seems intent on making the bad situation for asylum seekers even worse by further depriving them of due process rights,” Sawyer said. “The US Congress should step in and put an end to these mean-spirited attempts to undermine and destroy the US asylum system.”

New Concerns over the MPP Program

Increased Barriers to Legal Representation

Everyone in the MPP has the right to an attorney at their own cost, but it has been nearly impossible for asylum seekers forced to remain in Mexico to get legal representation. Only about 1.3 percent of  participants have legal representation, according to the Transactional Records Access Clearinghouse at Syracuse University, a research center that examined US immigration court records through June 2019. In recent months, the US government has raised new barriers to obtaining representation and accessing counsel.

When the Department of Homeland Security created the program, it issued guidance that:

in order to facilitate access to counsel for aliens subject to return to Mexico under the MPP who will be transported to their immigration court hearings, [agents] will depart from the [port of entry] with the alien at a time sufficient to ensure arrival at the immigration court not later than one hour before his or her scheduled hearing time in order to afford the alien the opportunity to meet in-person with his or her legal representative.

However, according to several attorneys Human Rights Watch interviewed in El Paso, Texas, and as Human Rights Watch observed on August 12 to 15 in El Paso Immigration Court, the Department of Homeland Security and the Executive Office for Immigration Review (EOIR), which manages the immigration court, have effectively barred attorneys from meeting with clients for the full hour before their client’s hearing begins. Rather than having free access to their clients, attorneys are now required to wait in the building lobby on a different level than the immigration court until the court administrator notifies security guards that attorneys may enter.

As Human Rights Watch has previously noted, one hour is insufficient for adequate attorney consultation and preparation. Still, several attorneys said that this time in court was crucial. Immigration court is often the only place where asylum seekers forced to wait in Mexico can meet with attorneys since lawyers capable of representing them typically work in the US. Attorneys cannot easily travel to Mexico because of security and logistical issues. For MPP participants without attorneys, there are now also new barriers to getting basic information and assistance about the asylum application process.

Human Rights Watch observed in May a coordinated effort by local nongovernmental organizations and attorneys in El Paso to perform know-your-rights presentations for asylum seekers without an attorney and to serve as “Friend of the Court,” at the judge’s discretion. The Executive Office for Immigration Review has recognized in the context of unaccompanied minors that a Friend of the Court “has a useful role to play in assisting the court and enhancing a respondent’s comprehension of proceedings.”

The agency’s memos also say that, “Immigration Judges and court administrators remain encouraged to facilitate pro bono representation” because pro bono attorneys provide “respondents with welcome legal assistance and the judge with efficiencies that can only be realized when the respondent is represented.”

To that end, immigration courts are encouraged to support “legal orientations and group rights presentations” by nonprofit organizations and attorneys.

One of the attorneys involved in coordinating the various outreach programs at the El Paso Immigration Court said, however, that on June 24 the agency began barring all contact between third parties and asylum seekers without legal representation in both the courtroom and the lobby outside. This effectively ended all know-your-rights presentations and pro bono case screenings, though no new memo was issued. Armed guards now prevent attorneys in the US from interacting with MPP participants unless the attorneys have already filed official notices that they are representing specific participants.

On July 8, the agency also began barring attorneys from serving as “Friend of the Court,” several attorneys told Human Rights Watch. No new memo has been issued on “Friend of the Court” either.

In a July 16 email to an attorney obtained by Human Rights Watch, an agency spokesman, Rob Barnes, said that the agency shut down “Friend of the Court” and know-your-rights presentations to protect asylum seekers from misinformation after it “became aware that persons from organizations not officially recognized by EOIR...were entering EOIR space in El Paso.

However, most of the attorneys and organizations now barred from performing know-your-rights presentations or serving as “Friend of the Court” in El Paso are listed on a form given to asylum seekers by the court of legal service providers, according to a copy of the form given to Human Rights Watch and attorneys and organizations coordinating those services.

Closure of Immigration Court Hearings to the Public

When Human Rights Watch observed court hearings in El Paso on May 8 to 10, the number of asylum seekers who had been placed in the MPP program and scheduled to appear in court was between 20 and 24 each day, with one judge hearing all of these cases in a single mass hearing. At the time, those numbers were considered high, and there was chaos and confusion as judges navigated a system that was never designed to provide hearings for people being kept outside the US.

When Human Rights Watch returned to observe hearings just over three months later, four judges were hearing a total of about 250 cases a day, an average of over 60 cases for each judge. Asylum seekers in the program, who would previously have been allowed into the US to pursue their claims at immigration courts dispersed around the country, have been primarily funneled through courts in just two border cities, causing tremendous pressures on these courts and errors in the system. Some asylum seekers who appeared in court found their cases were not in the system or received conflicting instructions about where or when to appear.

One US immigration official said the MPP program had “broken the courts,” Reuters reported.

The Executive Office for Immigration Review has stated that immigration court hearings are generally supposed to be open to the public. The regulations indicate that immigration judges may make exceptions and limit or close hearings if physical facilities are inadequate; if there is a need to protect witnesses, parties, or the public interest; if an abused spouse or abused child is to appear; or if information under seal is to be presented.

In recent weeks, however, journalists, attorneys, and other public observers have been barred from these courtrooms in El Paso by court administrators, security guards, and in at least one case, by a Department of Homeland Security attorney, who said that a courtroom was too full to allow a Human Rights Watch researcher entry.

Would-be observers are now frequently told by the court administrator or security guards that there is “no room,” and that dockets are all “too full.”

El Paso Immigration Court Administrator Rodney Buckmire told Human Rights Watch that hundreds of people receive hearings each day because asylum seekers “deserve their day in court,” but the chaos and errors in mass hearings, the lack of access to attorneys and legal advice, and the lack of transparency make clear that the MPP program is severely undermining due process.

During the week of September 9, the Trump administration began conducting hearings for asylum seekers returned to Mexico in makeshift tent courts in Laredo and Brownsville, where judges are expected to preside via videoconference. At a September 11 news conference, DHS would not commit to allowing observers for those hearings, citing “heightened security measures” since the courts are located near the border. Both attorneys and journalists have since been denied entry to these port courts.

Asylum Seekers Describe Risk of Kidnapping, Other Crimes

As the MPP has expanded, increasing numbers of asylum seekers have been placed at risk of kidnapping and other crimes in Mexico.

Two of the northern Mexican states to which asylum seekers were initially being returned under the program, Baja California and Chihuahua, are among those with the most homicides and other crimes in the country. Recent media reports have documented ongoing harm to asylum seekers there, including rape, kidnapping, sexual exploitation, assault, and other violent crimes.

The program has also been expanded to Nuevo Laredo and Matamoros, both in the Mexican state of Tamaulipas, which is on the US State Department’s “do not travel” list. The media and aid workers have also reported that migrants there have experienced physical violence, sexual assault, kidnapping, and other abuses. There have been multiple reports in 2019 alone of migrants being kidnapped as they attempt to reach the border by bus.

Jennifer Harbury, a human rights attorney and activist doing volunteer work with asylum-seekers on both sides of the border, collected sworn declarations that they had been victims of abuse from three asylum seekers who had been placed in the MPP program and bused by Mexican immigration authorities to Monterrey, Mexico, two and a half hours from the border. Human Rights Watch examined these declarations, in which asylum seekers reported robbery, extortion, and kidnapping, including by Mexican police.

Expansion to Mexican Cities with Even Fewer Protections

Harbury, who recently interviewed hundreds of migrants in Mexico, described asylum seekers sent to Nuevo Laredo as “fish in a barrel” because of their vulnerability to criminal organizations. She said that many of the asylum seekers she interviewed said they had been kidnapped or subjected to an armed assault at least once since they reached the border.

Because Mexican officials are in many cases reportedly themselves involved in crimes against migrants, and because nearly 98 percent of crimes in Mexico go unsolved, crimes committed against migrants routinely go unpunished.

In Matamoros, asylum seekers have no meaningful shelter access, said attorneys with Lawyers for Good Government (L4GG) who were last there from August 22 to 26. Instead, more than 500 asylum seekers were placed in an encampment in a plaza near the port of entry to the US, where they were sleeping out in the open, despite temperatures of over 100 degrees Fahrenheit. Henriette Vinet-Martin, a lawyer with the group, said she saw a “nursing mother sleeping on cardboard with her baby” and that attorneys also spoke to a woman in the MPP program there who said she had recently miscarried in a US hospital while in Customs and Border Protection custody. The attorneys said some asylum seekers had tents, but many did not.

Vinet-Martin and Claire Noone, another lawyer there as part of the L4GG project, said they found children with disabilities who had been placed in the MPP program, including two children with Down Syndrome, one of them eight months old.

Human Rights Watch also found that Customs and Border Protection continues to return asylum seekers with disabilities or other chronic health conditions to Mexico, despite the Department of Homeland Security’s initial guidance that no one with “known physical/mental health issues” would be placed in the program. In Ciudad Juárez, Human Rights Watch documented six such cases, four of them children. In one case, a 14-year-old boy had been placed in the program along with his mother and little brother, who both have intellectual disabilities, although the boy said they have family in the US. He appeared to be confused and distraught by his situation.

The Mexican government has taken some steps to protect migrants in Ciudad Juárez, including opening a large government-operated shelter. The shelter, which Human Rights Watch visited on August 22, has a capacity of 3,000 migrants and is well-stocked with food, blankets, sleeping pads, personal hygiene kits, and more. At the time of the visit, the shelter held 555 migrants, including 230 children, primarily asylum seekers in the MPP program.

One Mexican government official said the government will soon open two more shelters – one in Tijuana with a capacity of 3,000 and another in Mexicali with a capacity of 1,500.

Problems Affecting the ‘Assisted Voluntary Return’ Program

In October 2018, the International Organization for Migration began operating a $1.65 million US State Department-funded “Assisted Voluntary Return” program to assist migrants who have decided or felt compelled to return home. The return program originally targeted Central Americans traveling in large groups through the interior of Mexico. However, in July, the program began setting up offices in Ciudad Juárez, Tijuana, and Mexicali focusing on asylum seekers forced to wait in those cities after being placed in the MPP program. Alex Rigol Ploettner, who heads the International Organization for Migration office in Ciudad Juárez, said that the organization also provides material support such as bunk beds and personal hygiene kits to shelters, which the organization asks to refer interested asylum seekers to the Assisted Voluntary Return program. Four shelter operators in Ciudad Juárez confirmed these activities.

As of late August, Rigol Ploettner said approximately 500 asylum seekers in the MPP program had been referred to Assisted Voluntary Return. Of those 500, he said, about 95 percent were found to be eligible for the program.

He said the organization warns asylum seekers that returning to their home country may cause them to receive deportation orders from the US in absentia, meaning they will most likely face a ban on entering the US of up to 10 years.

The organization does not inform US immigration courts that they have returned asylum seekers, nor are asylum seekers assisted in withdrawing their petition for asylum, which would avoid future penalties in the US.

“For now, as the IOM, we don’t have a direct mechanism for withdrawal,” Rigol Ploettner said.  Human Rights Watch is deeply concerned about the failure to notify the asylum courts when people who are on US immigration court dockets return home and the negative legal consequences for asylum seekers. These concerns are heightened by the environment in which the Assisted Voluntary Return Program is operating. Asylum seekers in the MPP are in such a vulnerable situation that it cannot be assumed that decisions to return home are based on informed consent.

Posted: January 1, 1970, 12:00 am

September 23, 2019

Via Federal e-Rulemaking Portal

Acting Secretary Kevin K. McAleenan 
Department of Homeland Security
Washington, DC 20229

RE: Request for Comment on Designating Aliens for Expedited Removal, 84 Fed. Reg. 35409 (Jul. 23, 2019)
Docket No. DHS-2019-0036-0001

Dear Acting Secretary McAleenan,

Human Rights Watch writes in response to Docket No. DHS-2019-0036-0001, the Department of Homeland Security (DHS) request for comments on Designating Aliens for Expedited Removal, 84 Fed. Reg. 35409 (Jul. 23, 2019) (hereinafter, the Rule). This immediately effective notice broadly expanded the scope of expedited removal to include individuals apprehended after residing in the United States for up to two years and/or in the interior of the United States. The new rule will likely result in serious harm to immigrants and their families.

The Universal Declaration of Human Rights provides that “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.” Universal Declaration of Human Rights, adopted December 10, 1948, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948). The United States committed to the central guarantees of the 1951 Refugee Convention by its accession to the Refugee Convention’s 1967 Protocol. Convention Relating to the Status of Refugees, 189 U.N.T.S. 150, entered into force April 22, 1954; U.N. Protocol Relating to the Status of Refugees, 606 U.N.T.S. 268, entered into force October 4, 1967. The US government passed the Refugee Act of 1980 in order to bring the country’s laws into compliance with the Refugee Convention and Protocol, by incorporating into US law the convention’s definition of a “refugee” and the principle of nonrefoulement, which prohibits the return of refugees to countries where they would face persecution. Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat 102 (1980).

The US, as a party to the Convention against Torture, is also obligated not to return someone to a country “where there are substantial grounds for believing that [they] would be in danger of being subjected to torture.” Convention against Torture, art. 3(1).

Human Rights Watch has found that under expedited removal, as previously applied at the border, US immigration officials have failed to properly identify asylum seekers and have therefore violated its international human rights obligations. Human Rights Watch “You Don’t Have Rights Here”: US Border Screening and Returns of Central Americans to Risk of Serious Harm” (Oct. 2014).

A 2005 study commissioned by Congress similarly documented numerous “serious problems” in the expedited removal process “which put some asylum seekers at risk of improper return.” U.S. Comm’n on Int’l Religious Freedom, Report on Asylum Seekers in Expedited Removal: Volume I: Findings & Recommendations 4-5, 10 (2005) (“2005 USCIRF Study”). A 2016 follow-up study “revealed continuing and new concerns about [Customs and Border Protection (“CBP”)] officers’ interviewing practices and the reliability of the records they create, including . . . certain CBP officers’ outright skepticism, if not hostility, toward asylum claims; and inadequate quality assurance procedures.” U.S. Comm’n on Int’l Religious Freedom, Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal 2 (2016) (“2016 USCIRF Study”).

The broad expansion of expedited removal into the entire country will expose thousands more people living in the US to these same flawed procedures.

For the following reasons, Human Rights Watch requests that DHS immediately halt implementation of the expansion of expedited removal and take steps to ameliorate the well-documented problems in the expedited removal process as it existed prior to the Rule.

1.   DHS should not expand the scope of expedited removal because its officers regularly fail to identify asylum seekers and interfere with the right of individuals in expedited removal to pursue asylum claims.

US Customs and Border Protection (CBP) officers are required to screen people in expedited removal for fear of return to their country and, if the noncitizen expresses fear, refer them for a credible or reasonable fear interview by asylum officers with the US Citizenship and Immigration Services (USCIS). 

Despite this requirement, Human Rights Watch spoke with deportees who reported that they were not informed of the availability of protection or that they were not referred to an asylum officer for a credible fear interview after they told a Border Patrol agent they were afraid to return to their country. Human Rights Watch, “You Don’t Have Rights Here” at 26.

All of the people we interviewed for this report expressed a fear of returning to Honduras, but fewer than half were referred by US Border Patrol for a credible or reasonable fear interview. Id. at 6.

Some would-be asylum seekers reported that Border Patrol officers harassed, threatened, and attempted to dissuade them from applying for asylum. One man told Human Rights Watch, “The officers don’t pay attention to you. If you say you are afraid they say they ‘can’t do anything…All they said to me was that if I came back they would give me six months in prison.” Id. at 27.

In another investigation, parents separated from their children told Human Rights Watch immigration officials induced them to waive their rights, including to seek asylum, telling them it was the only way, or the fastest way to be reunited with their children. Human Rights Watch, “Separated Families Report Trauma, Lies, Coercion” (July 26, 2018). See also, Human Rights Watch, In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells (Feb. 2018) at 30 (several women told Human Rights Watch that immigration officials pressured them to accept return to their home countries).

Asylum seekers who were not referred for a credible fear interview told Human Rights Watch that interviews by CBP are brief and focused on explaining additional consequences of deportation, such as bars to return for set periods of time, rather than exploring their fear of return. Some asylum seekers told Human Rights Watch that when they tried to tell US officials about their fear of returning, they were denied further exploration of that claim, and were put in touch with consular officers from their country of origin. This practice runs counter to international protection standards, which recognize the problematic relationship asylum seekers may have with officials from their home countries. Human Rights Watch, “You Don’t Have Rights Here” at 29.

Human Rights Watch has also received and analyzed governmental records, obtained under the Freedom of Information Act, that demonstrate asylum officers within the US Citizenship and Immigration Services (USCIS) have repeatedly provided internal reports on Customs and Border Protection’s (CBP) problematic practices. Human Rights Watch, “US FOIA Suit on Border Guards’ Rights Abuses” (March 26, 2018). Although these records were heavily redacted and Human Rights Watch filed suit to obtain production of more responsive documents, the documents it has obtained provide details about multiple cases of intimidation, verbal, and even physical abuse by CBP officers.

One email from an asylum officer indicated that an asylum seeker was intimidated by CBP into withdrawing his case: “What is especially disturbing about this is that … the record indicates that he has been subjected to harassment, intimidation, and physical mistreatment by CBP upon his recent entry into the US, and [ ] this mistreatment. . . affected his decision to dissolve his case.” Ibid.

Other organizations have similarly found CBP routinely fails to identify asylum seekers. See e.g., Borderland Immigration Council, Discretion to Deny: Family Separation, Prolonged Detention, and Deterrence of Asylum Seekers at the Hands of Immigration Authorities Along the U.S.-Mexico Border 12 (2017) (“In 12% of the cases documented for this report, individuals expressing fear of violence upon return to their country of origin were not processed for credible fear screenings and instead, were placed into removal proceedings.”); DHS Office of the Inspector General, Special Review—Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy (Sept. 27, 2018) (describing CBP practices amounting to failure to properly refer asylum seekers for CFIs in order to “regulat[e] the flow of asylum-seekers at ports of entry”); Amnesty International, Facing Walls: USA and Mexico’s Violations of the Rights of Asylum-Seekers (2017) (describing CBP agents’ coercion of and threats to asylum seekers, including making them recant their claims of fear on video, claiming that they cannot seek asylum without a ticket from officials in Mexico, and claiming that there is no more asylum for individuals from certain countries); American Immigration Council, Deportations in the Dark: Lack of Process and Information in the Removal of Mexican Migrants, 1, 2, 5, 7-8 (Sept. 2017) (reporting that 55.7% of a survey of 600 deported Mexican migrants were not asked if they feared return to Mexico and describing numerous incidents of CBP interference with asylum claims); American Immigration Council, Still No Action Taken: Complaints Against Border Patrol Agents Continue to Go Unanswered, 9 (Aug. 2017) (reporting CBP’s failure to act in response to complaints of misconduct, including complaints that agents ignored claims of fear or persecution); Human Rights First, Crossing the Line: U.S. Border Agents Illegally Reject Asylum Seekers (May 2017) (documenting CBP abuses towards asylum seekers, including ignoring asylum claims, stating that the United States no longer provides asylum, providing other false information, mocking and intimidating asylum seekers, imposing procedures to deter asylum seekers from pursuing their claims, and coercing asylum seekers into giving up their claims); 2016 USCIRF Study at 20-32 (documenting examples of failure to properly screen for fear of return in CBP primary inspection interviews); American Civil Liberties Union, American Exile: Rapid Deportations That Bypass the Courtroom, 4 (Dec. 2014) (reporting that 55% of 89 interviewed individuals who received summary removal orders, including expedited removal orders, were not asked about fear of persecution in language they could understand and 40% of those asked about fear were deported without a CFI despite expressing fear of return); 2005 USCIRF Study at 53-54 (finding that in 15% of observed cases, when a noncitizen expressed a fear of return to an immigration officer during the inspections process, the officer failed to refer the individual to an asylum officer for a credible fear interview). 

US government data itself indicates that credible fear referrals by CBP for nationals of Honduras, Mexico, El Salvador, and Guatemala have been extremely low. An analysis of data obtained from CBP by Human Rights Watch under the Freedom of Information Act found that between October 2010 and September 2012, only 1.9 percent of Hondurans were flagged for credible fear assessments by CBP. Similarly, only 0.1 percent of Mexicans, 0.8 percent of Guatemalans, and 5.5 percent of Salvadorans in expedited or reinstatement of removal were referred to a credible or reasonable fear interview by CBP. However, 21 percent of migrants from countries other than these, who underwent the same proceedings in the same years, were flagged for credible fear interviews by CBP. Human Rights Watch, “You Don’t Have Rights Here” at 21-24.

Should DHS continue to implement the Rule, the well-documented failure of immigration officers to fulfill their basic obligations to asylum seekers facing expedited removal is likely to continue as well. The Rule itself suggests, now that DHS has expanded the scope of expedited removal, that tens of thousands more individuals each year could be forced through this flawed system that routinely deprives individuals of their right to have their claims examined in a credible fear interview with an asylum officer. See 84 Fed. Reg. at 35411.

In order to safeguard asylum seekers’ right to seek protection from persecution and torture, DHS should halt implementation of the Rule.

2.   DHS should not expand the scope of expedited removal because its officers routinely record inaccurate or false information on expedited removal forms and coerce noncitizens into signing forms they do not understands. 

The content of the paperwork that DHS officers complete during expedited removal proceedings has a profound impact on the individuals subject to expedited removal—for many, it will result in their immediate deportation; for others, the content of forms filled out during initial interviews will impact assessments of their credibility in subsequent proceedings. Yet this paperwork is often replete with errors.

Human Rights Watch has spoken with deportees and detainees who reported they resisted signing forms offered by Border Patrol, or were coerced into signing something they did not understand. As noted above, Human Rights Watch has also received documents in which USCIS asylum officers have recorded complaints of DHS officers coercing asylum seekers to sign forms and including inaccurate information in such paperwork.

Mateo S., who had fled death threats from a gang, said he tried to not sign papers agreeing to his deportation:

I was detained for six days in the cold rooms. They just asked me my name, where I came from, and they told me I was punished for five years and I had to sign the deportation. I didn’t want to sign. When the moment of the interview came I said I wouldn’t sign. The officer insulted me. They started waking me up every couple of hours and moving me from cell to cell. It was hard…. The officer filled out all the paperwork and told me to sign, I told him I wouldn’t sign and I hoped the US government would admit me. He ripped up all the paper and threw it almost at my face. He told me I was deported anyway. He said he “had the law in his hand and he was going to sign for me.” I told him he was violating my right to life and he said, “You don’t have rights here.” Human Rights Watch, “You Don’t Have Rights Here” at 28.

The records also include instances recorded by asylum officers in which CBP officers are said to have refused to record an asylum seeker’s fear: “I told them I was very fearful and please not to be deported, they started laughing”; as well as instances in which CBP officers allegedly fabricated the response to a question that it never asked: “Q: when border protection asked you if you were afraid to go back to El Salvador, you said no; why did you say no? A: I did not say no, those questions were not asked from me.” Human Rights Watch, “US: FOIA Suit on Border Guards’ Rights Abuses.”

Edwin H., from Honduras, who was separated from his son in 2018, told Human Rights Watch, “An official gave me the results of my interview [an initial credible fear interview, the first stage in pursuing an asylum claim]. He pointed to a box and told me to mark it and sign the form. I said I wasn’t going to sign it because I didn’t know what I was signing. He got angry. ‘You have to sign. You don’t want to have your son back?’ Under that pressure, I signed. I didn’t understand it because it was all in English.” Human Rights Watch examined the document he signed, in which he waived the right to see an immigration judge to explain the reasons why he feared returning to his home country. Human Rights Watch, “Separated Families Report Trauma, Lies, Coercion.”

Others have made similar findings, including DHS officers’ failure to provide people in expedited removal proceedings with the opportunity to review and respond to information in the paperwork, use of coercion to force people to sign forms they do not understand, and requiring individuals to sign paperwork despite interpretation failures that impact their ability to understand the proceedings. See, e.g., Borderland Immigration Council, Discretion to Deny at 13 (noting that “[i]ndividuals are forced to sign legal documents in English without translation” and “that CBP affidavits are often inconsistent with asylum-seekers’ own accounts”); 2016 USCIRF Study at 2, 20-22 (discussing “continuing and new concerns about CBP officers’ interviewing practices and the reliability of the records they create”); American Civil Liberties Union, American Exile at 34-36 (describing noncitizens who were required to sign forms in languages they do not understand); 2005 USCRIF Study at 74 (explaining that statements recorded by CBP officers “are often inaccurate and are almost always unverifiable”); id. at 55 (“Study observations indicate that paper files created by the inspector are not always reliable indicators” of whether a credible fear interview was merited.); id. at 53 (noting that expedited removal forms were routinely inaccurate); United States v. Sanchez-Figuero, No. 3:19-cr-00025-MMD-WGC, slip op. at 2, 9 (D. Nev. July 25, 2019) (dismissing unlawful reentry indictment where defendant, who had not slept for 36 hours at the time of apprehension, “was not informed of the charge against him and never received a meaningful opportunity to review the sworn statement”); United States v. Raya-Vaca, 771 F.3d 1195, 1205-06, 1210-11 (9th Cir. 2014) (holding that immigration officer’s failure during expedited removal process to advise the defendant of the charge of removability and to permit him to review the sworn statement prepared by the officer violated his due process rights to notice and an opportunity to respond).

Forcing tens of thousands more individuals, many of whom will have lived in the United States for significant periods of time and developed substantial ties, through this flawed and fast-tracked system is not appropriate. To avoid subjecting more individuals with claims to relief—or who never should have been subject to expedited removal even under the Rule’s broad scope—to a system replete with coercion, factual errors, and inadequate translation, DHS should halt implementation of the Rule.

3.   There are well-documented failures in the credible fear process.

Furthermore, even those individuals who receive credible fear interviews after DHS inspection in expedited removal face significant barriers to fair adjudication of their claims. As multiple reports indicate, individuals who must establish a credible fear—rather than immediately being placed in immigration court proceedings to pursue their asylum claims—may not receive adequate consideration of their claims.

Instead, they face erroneous denials of credible fear, denials of access to counsel, and inadequacies in interpretation. See, e.g., U.S. Dep’t of Homeland Sec. Advisory Comm. on Family Residential Ctrs., Report of the DHS Advisory Committee on Family Residential Centers 96-100 (2016) (discussing inadequate or nonexistent interpretation services during credible fear interviews and immigration judge reviews of negative credible fear determinations); Borderland Immigration Council, Discretion to Deny at 13 (describing interpretation failures during CFIs); 2016 USCIRF Study at 28 (describing case of a detained Ethiopian asylum seeker who was denied an interpreter); American Civil Liberties Union, American Exile at 34 (“Most of the individuals interviewed . . . stated that they were given forms to sign in English, which most did not speak or read, and often were not interviewed by an immigration officer who fluently spoke their language or through an interpreter.”); Interior Immigration Enforcement Legislation: Hearing Before the H. Judiciary Subcomm. on Immigration & Border Sec. 5 (Feb. 11, 2015) (statement of Eleanor Acer, Dir., Refugee Protection, Human Rights First) (“In some cases, interviews are sometimes rushed, essential information is not identified due to lack of follow up questions, and/or other mistakes are made that block genuine asylum seekers from even applying for asylum and having a real chance to submit evidence and have their case fully considered”).

Rather than placing additional strain on the CFI system, DHS should halt implementation of the Rule.

4.   DHS officers have wrongfully removed numerous individuals through expedited removal.

As a result of the widespread flaws in the expedited removal process, numerous individuals have been wrongfully removed from the United States. This includes multiple reported instances of deportations of U.S. citizens. See, e.g., Lyttle v. United States, 867 F. Supp. 2d 1256, 1272-73 (M.D. Ga. 2012); De la Paz v. Johnson, No. 1:14-CV-016 (S.D. Tex. habeas petition filed Jan. 24, 2014); Ian James, Wrongly Deported, American Citizen Sues INS for $8 Million, L.A. Times (Sept. 3, 2000) (recounting expedited removal of U.S. citizen Sharon McKnight). Similarly, due to the rushed system of expedited removal, DHS fails to identify immigrants who should not be subject to the process because, for example, they have lived in the United States for many years or they have credible fear of persecution. See, e.g., American Exile at 63 (describing erroneous expedited removal of Mexican citizen who had lived in the United States for 14 years); id. at 38 (recounting case of a Guatemalan citizen and mother of four U.S. citizen children who was removed under an expedited removal order even though she told the CBP officers that she was afraid to be deported to Guatemala, where her father had been murdered and her mother had been the target of extortion by gangs); id. at 39 (describing 22-year-old woman who fled domestic violence removed to El Salvador without being provided a credible fear interview); United States v. Mejia-Avila, No. 2:14-CR-0177-WFN-1, 2016 WL 1423845, at *1 (E.D. Wash. Apr. 5, 2016) (dismissing indictment where defendant was not subject to expedited removal because the record was “clear” that he had lived in the United States for more than two years).

These errors are likely to increase under the Rule. Proving two years of continuous physical presence, while detained and alone, will be unfeasible for many people detained under the Rule under the short timeframe provided for expedited removal proceedings. Long-time residents and citizens of the United States have been improperly deported, including to countries where those individuals face persecution or torture, and they will continue to face that risk of improper deportation. To prevent these foreseeable harms, DHS should halt implementation of the Rule.

* * * *

We request that DHS consider these recommendations, halt expansion of the scope of expedited removal, and act immediately to address the long-standing problems with implementation of the pre-July 23, 2019 expedited removal system. Please do not hesitate to contact us if you have questions regarding our comments. Thank you for your consideration.

Sincerely,

Nicole Austin-Hillery
Executive Director
US Program
Human Rights Watch

Posted: January 1, 1970, 12:00 am

Migrants are crowded together on deck of the rescue ship "Eleonore" as it seaches for a safe port in the Mediterranean. The "Eleonore" took in the migrants on August 26, 2019 off the Libyan coast, as their boat was sinking.

© 2019 Johannes Filous/picture-alliance/dpa/AP Images

Italy’s new coalition government, fragile as it may be, presents a chance for the country to move away from migration policies that put lives at risk and back to those grounded in respect for human rights, including the right to life.

The new Five Star Movement-Democratic Party government should seek to undo the damage done by anti-immigrant and anti-rescue decrees introduced by outgoing Interior Minister Matteo Salvini. The decrees should be revoked, not simply tweaked, as the coalition has suggested, and the government can rebuild policies from a clean slate.

The first decree, from late 2018, effectively abolished humanitarian visas that allow people who experienced extreme hardship and abuse to remain in Italy, leading to an increase in the number of people without legal status, according to a study. It also downgraded the care asylum seekers receive and increased the amount of time people can be detained pending deportation.

The second decree, which became law in early August, formalized the outgoing government’s “closed ports” policy, which barred rescue ships from entering Italian territorial waters. Ships that violated the decree could face fines of up to €1 million and seizure of the ship. This has left rescued people stranded on boats for weeks and deterred life-saving rescue efforts.

Just as the new coalition partners were finalizing their pact, authorities have seized the ships of two rescue NGOs, and one is facing a €300,000 fine for rescuing people at sea and making sure they were disembarked in a safe place.

Salvini didn’t push through these shameful policies on his own. The Five Star Movement was a willing, at times enthusiastic, partner. When it governed under the previous legislature, the Democratic Party took steps to undermine NGO rescues and led the way on greater cooperation with Libyan authorities despite the overwhelming evidence of brutality against migrants and asylum seekers there. Both parties should break with the past and set Italy on a new rights-based course.

Italy is right to call for and expect more European cooperation in the Central Mediterranean, and European Union governments should agree on a serious relocation mechanism. Italy can and should lead the way to more humane polices, on land and at sea.

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Unaccompanied children arriving in France’s Alpine region undergo flawed age assessment procedures that deny many access to needed protection.

Posted: January 1, 1970, 12:00 am

Summary

Joshua F. left his home in Cameroon with his younger sister in 2016, when he was 13, after their parents died in an accident. His father’s family took the house and his father’s workshop, turning the two children out. They left Douala and travelled to Yaoundé, where they lived on the streets for a time until a man offered Joshua a carpentry job in northern Cameroon. In fact, the man took them to Chad and forced them to work long hours without pay in his home.

Joshua and his sister were then abducted and taken to Libya. There, he told Human Rights Watch, they were held by smugglers. “I was the victim of slavery,” he said, describing long days of forced labour in fields and on construction sites. The men who held him and his sister beat them and demanded that they contact their family to arrange a ransom payment. After he repeatedly told the men they had nobody they could call, one of the men killed his sister in front of him.

After he had been in Libya for about a year, once he had worked long enough that the men considered his ransom paid, they took him to the beach to join a large group boarding a Zodiac, a large inflatable boat. The men forced as many as possible onto the boat, at one point firing guns at the water near the group. After several days at sea, a ship rescued the group and took them to Italy.

Joshua had sustained injuries from the forced labour and beatings he endured in Libya, and when he arrived in Italy, he asked reception center staff to see a doctor. But he never received medical care while he was in Italy. He was also not able to attend school.

After six months, he decided to leave Italy. He travelled to Claviere, a village in the Alps on the French-Italian border, and tried to enter France on five successive nights. On his first four attempts, border police sent him back to Italy after he told them his age and tried to explain his situation, even though by law they should have accepted his declared age and, under the procedures the border police director described to Human Rights Watch, should have referred him to child protection authorities.

On his fifth attempt, police let him continue into France. They did not contact child welfare services; instead, he and another boy walked all night to reach the town of Briançon. Volunteers at a shelter there gave him first aid and arranged for his transport to the departmental capital, Gap, where unaccompanied children undergo age assessments to determine whether they will be taken into care.

In Gap, he received a negative age assessment for reasons he still does not understand. “There were things written there I did not say,” he told us. With the aid of lawyers, he asked the juvenile judge to review the negative age assessment and was expecting a ruling in mid-September 2019.

Like Joshua, many children decide to leave Italy and travel to France because they have not received access to education or adequate health care in Italy. The perception of hostility on the part of the Italian government and the general public is also a significant factor in unaccompanied children’s decisions to leave Italy.

Unaccompanied migrant children who travel from Italy to France’s Hautes-Alpes Department may, in violation of French law and child rights protection norms, be summarily returned to Italy by French authorities. To avoid apprehension and summary return by border police, many children cross the border at night, hiking high into the mountains far off established trails.

Video

France: Immigrant Children Being Denied Protection

Unaccompanied children arriving in France’s Alpine region undergo flawed age assessment procedures that deny many access to needed protection.

Even in the height of the summer, in July and August, it is cold in the mountains, and it is easy to get lost in the dark. Children described walking seven to ten hours to reach Briançon, less than 15 km via the most direct route by road. Many were exhausted by the time they reached Briançon, and some had suffered injuries from falls on rocky slopes or while crossing frigid mountain streams. In the winter months, the crossing can be perilous: many of the children interviewed by Human Rights Watch in January and February were recovering from frostbite, and some required hospitalization.

Once they enter France, many are refused formal recognition as children after flawed age assessments. In cases reviewed by Human Rights Watch, many children received negative age assessments because, in the judgement of the examiner, they failed to provide clear accounts of their journeys—in reality, meaning that they made minor mistakes with dates, confused the names of places they travelled through, or did not want to discuss particularly difficult experiences with an adult they had just met. Work in home countries or while in transit to Europe may be taken as an indication that the child is older than claimed, even though many children work at very young ages around the world. Life goals that examiners deem unrealistic, such as overly optimistic assessments of career prospects, may also be factors in negative age assessments.

French regulations require these evaluations to be multidisciplinary in nature, meaning that they should consider children’s educational background, psychological factors, and other aspects of their lives, and call for them to be conducted in a manner “characterized by neutrality and compassion.” In fact, some children described questioning by examiners they said were indifferent or hostile. Children did not always understand the interpreters assigned to them, and some said that their interpreters criticized their responses. Many children felt they had not been heard during their interviews, a conclusion reinforced when they saw the reports prepared by the examiner. Echoing Joshua’s remarks, many other children told us the reports contained significant inaccuracies and included statements they had not made.

Many of the children who arrive on their own in France, whether in the Hautes-Alpes or elsewhere, have suffered serious abuses in their home countries, endured torture, forced labour, and other ill-treatment in Libya, and undergone terrifying sea crossings on overcrowded boats on their way to Europe. Many show symptoms of post-traumatic stress disorder, doctors who work with migrant children in the Hautes-Alpes told Human Rights Watch. But the age examination process does not appear to take into account these circumstances and the well-documented effects of PTSD on memory, concentration, and the expression of emotion.

An immediate consequence of a negative age assessment is eviction from the emergency shelter for unaccompanied children, even for individuals who seek review before a judge. Some find shelter with families who volunteer space in their homes. Others are housed in shelters for adults.

Some children ultimately succeed in having negative age assessments overturned on review, but delays in formal recognition as a child may affect their eligibility for regular immigration status upon adulthood.

Police have also harassed aid workers, volunteers, and activists who take part in search-and-rescue operations in the mountains. For example, members of these search-and-rescue teams told Human Rights Watch police regularly subject them to document checks—procedures that are lawful in France but open to abuse. In some cases, volunteers and activists describe receiving traffic infractions or being subjected to intrusive searches or protracted questioning in circumstances that suggest that the purpose of these acts by police was to target them for their lawful humanitarian activities rather than to ensure road safety or establish identity. Humanitarian assistance is protected under French law, and the European Union Agency for Fundamental Rights (FRA) has called for EU guidance to clarify that humanitarian assistance to migrants should not be a crime. Nevertheless, French authorities have brought criminal charges against aid workers, often under provisions that criminalize the facilitation of irregular entry.

The practices identified in this report violate unaccompanied children’s human rights, as well as the human rights of aid workers, volunteers, and activists who assist migrant children and adults.

Case of police pushbacks of unaccompanied children to Italy reviewed by Human Rights Watch appear to be a matter of individual police officer’s whim and do not comply with French law or international human rights norms on treatment of unaccompanied children and deny them the protection and care in France they are entitled to as children.

Age assessment procedures in the Hautes-Alpes are arbitrary and fail to respect children’s right to a fair process, drawing adverse inferences from factors such as travelling alone or working while in transit, minor errors with dates, and reluctance to discuss traumatic events in detail. In addition, because formal recognition as a child is an essential first step to enter the child protection system and receive other rights and services, including access to housing, health, and education and regularization of legal status, the age assessment procedures employed in the Hautes-Alpes lead to denial of children’s right to protection and assistance.

France shares the same obligations as all other EU member states to afford unaccompanied children who arrive at its borders special safeguards that protect their human rights as set out in international and EU law. This report evaluates French authorities’ actions in relation to those obligations, while recognizing that France is not alone in the European Union in failing to meet them consistently. The fact that unaccompanied children arriving in France may have had their rights violated by authorities in another EU country does not mitigate France’s duty to ensure that its policies and practices with respect to unaccompanied migrant children comply with international and regional norms and EU law.

Police harassment of aid workers, volunteers, and activists interferes with their ability to provide potentially life-saving assistance to children and adults in need. Prosecutions for providing humanitarian assistance potentially violate a range of rights, including that of freedom of association.

To address the shortcomings identified in this report, French police and immigration authorities should end summary returns of unaccompanied migrant children to Italy and instead ensure they are immediately transferred to the child welfare system for appropriate protection and care.

French authorities should reform age assessment procedures in line with international standards to ensure that children are not arbitrarily denied formal recognition and the protection to which they are entitled.

Authorities should also prevent and ensure accountability for police harassment of humanitarian workers.

Recommendations

To the Ministry of the Interior and the Ministry of Justice

  • Investigate accounts of police pushbacks of unaccompanied children at the French-Italian border and reported intimidation of volunteers and activists.
  • Repeal the decree allowing prefectures to process the personal data of those who receive negative age assessments for the purpose of expulsion from French territory, potentially before they have had the opportunity to seek review.
  • Ensure that aid and assistance to migrants are not criminalized, in line with the July 2018 decision of the Constitutional Council (Conseil constitutionnel).
  • Together with the Ministry of Social Affairs, ensure that departments have sufficient resources to carry out their child protection functions.

To the Ministry of Social Affairs (Ministère des solidarités et de la santé)

  • Prepare guidance on how to conduct multidisciplinary age assessments that afford the benefit of the doubt in cases where there is a reasonable possibility that the person assessed may be a child and disseminate that guidance to departmental child protection authorities.
  • Together with the Ministry of the Interior and the Ministry of Justice, ensure that departments have sufficient resources to carry out their child protection functions.

To the Hautes-Alpes Prefecture and the French Border Police (Police aux frontières)

  • Direct border police to accept an individual’s declared age if there is a reasonable possibility that the person is a child. In such cases, border police should transfer those individuals to the care of child protection authorities. In no case should an individual be returned to Italy if there is a reasonable possibility that the person is a child.
  • Ensure that all individuals refused entry into France, including those who are apprehended after irregular entry, are notified of their rights in a language they understand, as required by article L.213-2 of the Code on Reception and Residency of Foreigners and Asylum Law (Code de l’entrée et du séjour des étrangers et du droit d’asile).
  • Verification of birth certificates and other identity documents obtained abroad should, consistent with article 47 of the Civil Code, be presumed valid in the absence of substantiated reason to believe they are not.
  • Instruct police officers to refrain from conducting abusive identity checks targeting humanitarian activists and volunteers, and to ensure that all stops are grounded in a reasonable suspicion of wrongdoing.
  • Investigate and, if appropriate, sanction conduct by the border police that does not comply with the Code on Reception and Residency of Foreigners and Asylum Law and with policing standards.

To the Hautes-Alpes Directorate of Prevention Policy and Social Action (Direction des Politiques de Prévention et de l’Action Sociale)

  • Ensure that all those who are awaiting an evaluation receive emergency shelter for the minimum period of five days or until the evaluation is completed, as required by article R.221-11 of the Code on Social Action and Families (Code de l’action sociale et des familles). The period of emergency shelter should be extended to cover any period of appeal of an adverse age determination.
  • Issue and implement clear guidance to staff that age assessments should follow the November 17, 2016, order of the Ministry of Justice. All interviews should be conducted with particular expertise and care, in a manner “characterized by neutrality and compassion.” Birth certificates and other civil documents obtained abroad should be presumed valid in the absence of substantiated reason to believe they are not.
  • Provide for screening for post-traumatic stress disorder (PTSD) by trained psychiatrists prior to age assessment evaluations. Those found to have symptoms that could indicate PTSD should receive counseling prior to assessment. In addition, specific protocols should be developed with input from experts in PTSD to determine when, how, and by whom children with PTSD should be assessed.
  • Ensure the availability of interpreters who speak the languages and their variants most commonly spoken by unaccompanied children who undergo age assessments in the Hautes-Alpes. 

To the juvenile court (Tribunal des Enfants)

  • Juvenile court judges should apply the presumption of validity of birth registration and other identity documents issued abroad, in line with article 47 of the Civil Code.
  • Juvenile court judges should exercise their responsibility to ensure effective review of departmental age assessments.

 

To the public prosecutor (procureur)

  • Appoint a legal representative (administrateur ad hoc) without delay whenever a person claiming to be an unaccompanied child seeks to submit an asylum claim to the French Office for the Protection of Refugees and Stateless Persons (Office français de protection des réfugies et apatrides, OFPRA).

To the Government and the Parliament

  • Abolish the arbitrary legal status of the 10 km border zone; admit unaccompanied children arriving at the border to French territory to allow their protection needs, vulnerabilities, views, and best interests to be properly assessed and to inform any decision about their future.
  • Amend article 622-1 of the Code on Reception and Residency of Foreigners and Asylum Law to clarify that humanitarian assistance, including the provision of food, water, clothing, medical care, and transport is not a criminal offence, in line with the Constitutional Council’s July 2018 ruling that fraternity (fraternité) is a constitutionally protected principle.
  • Amend the Code on Social Action and Families and other legislation, as appropriate, to reflect the following, in line with international standards:
    • Any age assessment should be a matter of last resort, to be used only where there are serious doubts about an individual’s declared age and where other approaches, including efforts to gather documentary evidence, have failed to establish an individual’s age.
    • Authorities should offer clear reasons in writing as to why an individual’s age is doubted before beginning an age assessment.
    • The environment, questions asked, and assessment of responses should take into account the reality that children cannot be expected to provide the same level of precision as might be expected of an adult, and also reflect the fact that the trauma many children have experienced can affect memory and demeanor.
    • Authorities should not draw adverse inferences from work undertaken by children, the fact that some children have spent time on the streets, decisions by children to travel to Europe on their own. Such experiences are unfortunately common around the world and should not be taken as calling into question a child’s declared age.
    • Age assessment should afford the benefit of the doubt such that if there is a possibility that an individual is a child, he or she is treated as such.
  • Amend the Code on Social Action and Families and other legislation, as appropriate, to ensure that the finding of one department (an administrative division of France) that an individual is under the age of 18 cannot be challenged by another department.
  • Amend articles L.313-11 and L.313-15 of the Code on Reception and Residency of Foreigners and Asylum Law and article 21-12 of the Civil Code to ensure that children are not penalized by delays in the age assessment process. For the purpose of eligibility for residence permits and nationality upon reaching adulthood, children should be regarded as having been taken into care by the child welfare system (Service de l’aide sociale à l’enfance, ASE) as of the day they sought to be recognized as children at the Hautes-Alpes Directorate of Prevention Policy and Social Action or at similar evaluation centers, regardless of how long the age assessment process takes.

To the Italian Ministry of the Interior’s Department for Civil Liberties and Immigration (Dipartimento per la Libertà civili e l’Immigrazione)

  • Ensure that all Italian reception centers, including those for unaccompanied migrant children, provide children with access to education, health care, and psychosocial support and identify durable solutions on an individual basis for each unaccompanied child to help establish normality and long-term stability, in line with the European Commission’s 2017 communication on the protection of children in migration and the European Asylum Support Office’s 2018 guidance on reception conditions for unaccompanied children.

To the European Commission

  • Assess whether France and Italy are in breach of the Asylum Procedures Directive, the Reception Directive, and the Dublin III Regulation. In particular, the European Commission should examine whether France’s age assessment methods adequately afford the benefit of the doubt where results are inconclusive and should evaluate reception conditions and safeguards for children in Italy. The Commission should do the same evaluation where concerns arise at other EU internal borders.
  • Propose revision of the Facilitation Directive to require sanctions for the smuggling of persons only “when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit,” as provided in the UN Smuggling Protocol. The revised Facilitation Directive should explicitly provide that EU Member States should not impose sanctions for the facilitation of irregular entry or transit in cases where the aim is to provide humanitarian assistance.
  • Until the Facilitation Directive is revised, develop guidance to ensure its implementation complies with international standards, in particular to clarify that the provision of humanitarian assistance without financial or other material benefit should not be a criminal offense.

Methodology

This report is based on research in the French Department of Hautes-Alpes between January and July 2019. Three Human Rights Watch researchers interviewed fifty-nine boys, one girl, and one adult man who had recently turned 18. Sixty identified themselves as children under the age of 18, and one was an 18-year-old who arrived in France at the age of 16. Twenty-one were from the Republic of Guinea (often referred to as Guinea-Conakry to distinguish it from Guinea-Bissau and Equatorial Guinea), ten from Côte d’Ivoire, nine from Mali, six from Gambia, four from Nigeria, three from Senegal, two from Burkina Faso, and one each from Benin, Cameroon, Ghana, Guinea-Bissau, Liberia, and Niger. Fifty-eight travelled through Libya and Italy before arriving in France. Two travelled through Morocco and Spain, and one flew directly to France.

Two of those we interviewed were formally recognized as children following an age assessment by the Departmental Council; 33 had received negative age assessments from the Departmental Council by the time of our interview. Seven of those who received negative age assessments eventually received formal recognition as children after a juvenile court judge (juge des enfants) reviewed their cases, and one was recognized as a child by a family court judge (juge des tutelles). The 18-year-old man had received a French residence permit (carte de séjour) 11 months after he was formally recognized as a child by the juvenile court judge and the week before Human Rights Watch interviewed him.

Human Rights Watch researchers conducted interviews in French, English, Italian, or in one case in Portuguese, depending on the preference of the person being interviewed. The researchers explained to all interviewees the nature and purpose of our research, including our intent to publish a report with the information gathered. They informed each potential interviewee that they were under no obligation to speak with us, that Human Rights Watch does not provide humanitarian services or legal assistance, and that they could stop the interview at any time or decline to answer specific questions with no adverse consequences. The researchers obtained oral consent for each interview. Interviewees did not receive material compensation for speaking with Human Rights Watch.

In addition, Human Rights Watch reviewed 36 evaluations conducted by the Directorate of Prevention Policy and Social Action (Direction des Politiques de Prévention et de l’Action Sociale) of the Department of Hautes-Alpes, 13 juvenile court judgments, and 2 guardianship orders from the family court.

Human Rights Watch also interviewed lawyers, health care providers, staff of humanitarian agencies, volunteers who assist migrant children, and volunteers and activists who conduct search-and-rescue missions in the mountains near the French-Italian border.

Human Rights Watch met with and shared the findings of this research with the Hautes-Alpes prefecture and the border police director for the Hautes-Alpes and Alpes de Haute-Provence. We made three requests for a meeting with the Hautes-Alpes Directorate of Prevention Policy and Social Action and two additional requests for responses to our preliminary findings.[1] In response to our first request for a meeting asking to hear from the department how it identifies children, provides them with accommodation, and ensures their education, the department replied:

We take care of our responsibilities to shelter, evaluate with reference to the legal instruments, follow the cases of recognized minors, with regard to the schooling, apprenticeships, or internships with businesses . . .

In our opinion, there is nothing to be “heard” [from us], the migratory flow has declined in the Hautes-Alpes and our activities have not stopped.[2]

The department eventually offered general responses to several of the points we raised but refused to answer our specific questions.[3]

Human Rights Watch also provided Italian authorities with a summary of children’s accounts of reception conditions in Italy and requested their response to these accounts.[4] In reply, Italian authorities described the reception system for unaccompanied children and offered some responses to the questions we posed, as discussed more fully in the next chapter.[5] .

All names of children used in this report are pseudonyms. Human Rights Watch has also withheld the names and other identifying information of humanitarian workers who requested that we not publish this information.

In line with international standards, the term “child” refers to a person under the age of 18.[6] As the United Nations Committee on the Rights of the Child and other international authorities do, we use the term “unaccompanied children” in this report to refer to children “who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.”[7] “Separated children” are those who are “separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives,”[8] meaning that they may be accompanied by other adult relatives.

I. Unaccompanied Children Arriving in the Hautes-Alpes

As with Joshua F., whose case is described at the beginning of this report, many unaccompanied children told Human Rights Watch they came to the Hautes-Alpes after leaving their home countries on their own, with siblings or friends of their own age, or in the company of adults to escape harm at the hands of abusive families, targeted violence from criminal groups, and armed groups.

Nearly all described dangers they faced on their journey, notably the 58 who told us they transited through Libya, where arbitrary detention by authorities, militias, smugglers, and traffickers, torture and other ill-treatment, and forced labor of migrant adults and children are commonly reported. Some said they saw friends or family killed in their home countries, and one boy told us smugglers killed his sister when they were in Libya. Others watched people drown in the Mediterranean when their boats tossed or capsized on heavy seas. The risks on the journey, particularly in Libya and on the Mediterranean crossing, are severe enough that the UN Children’s Fund (UNICEF) and the International Organization for Migration (IOM) describe the Central Mediterranean route as “singularly dangerous,” one of the world’s riskiest migration routes.[9]

Most of the children interviewed for this report spent six months to a year or more in Italy before deciding to make their way to France. Many cited the lack of access to education and health care as the primary reasons for their decisions to leave Italy. Some children said that discriminatory attitudes expressed by government officials and members of the general public factored into their decisions to leave Italy and travel to France. In addition, children from French-speaking countries frequently said that language and a sense of historic ties between their home countries and France were additional motivations to leave Italy for France.

Most children told Human Rights Watch they attempted to cross the border between Italy and France by traversing the mountains near Claviere, on the Italian side, and Montgenèvre, in France. They crossed through the mountains to avoid apprehension and summary return to Italy, and they chose this route because they heard that it was less dangerous than other mountain routes.

It is true that the route between Claviere and Montgenèvre is comparatively safer than other routes through the Alps, but unpredictable weather, the distance involved, and the need to navigate unfamiliar, steep mountain terrain at night create significant risks. Temperatures can plummet at night, and paths can be covered in snow until early June. Youths told us that to avoid apprehension, they went as high as possible, hiding whenever they saw lights in the distance or heard snowmobiles. Siaka A., a 16-year-old Ivoirian boy, told us that he and the others he was travelling with jumped into snowbanks whenever they saw or heard people.[10] Louis M., a 16-year-old boy from Mali, said, “There was a lot of snow. It was up to my knees. We had to stop every so often because of the snow.”[11] As a result, many children arrive in Briançon suffering from frostbite, other injuries, and the effects of exhaustion.

In 2018, one-third of the migrants staying in the shelter in Briançon identified themselves as children, shelter volunteers told us.[12] Most are West African; the most common countries of origin are Guinea, Côte d’Ivoire, and Mali.[13]

Reasons for Leaving Their Homes

The children we interviewed described leaving their homes and travelling on their own for a variety of reasons. Many of the children Human Rights Watch spoke with said they had fled abusive family situations, particularly at the hands of stepparents or extended family members after the death of a parent. Others said they had been subjected to labor exploitation. Some said they were targeted by armed groups or by members of the community because of their or their families’ religion, perceived political views, or for other reasons. And some described circumstances that suggested they were trafficked.

Many of the experiences children described are potential grounds for asylum or other protection from return under international law.[14] French law affords unaccompanied children immediate protection and the possibility of regular immigration status upon adulthood for those who are formally recognized as children and placed under the care of the child welfare system, without requiring them to go through the separate asylum process. For this reason, most unaccompanied children in France do not seek asylum, although they are not precluded from doing so.[15]

Abusive Families

Children frequently mentioned family abuse and neglect as the principal reason why they left their home countries.

In particular, children who moved to a relative’s house after the death of a parent said that they faced physical abuse from their new caregivers, typically extended family members. For example, Kebba S., a 16-year-old boy with a Gambian father and Senegalese mother said, “When my father died, I left with my mom for Senegal, to stay with my uncle. My uncle wasn’t gentle with me. Another uncle, who loves me a lot and who is in Gabon, helped me leave.”[16] Other boys, including Malick I., described physical abuse from extended family in similar circumstances.[17]

In addition to physical abuse, some children described situations of labour exploitation in their new homes, as with Louis M., a 16-year-old from Mali, who told us that his uncle forced him to work in the fields after his father and mother died. The work was very difficult, he said, adding, “I was in a very, very bad state.”[18] Ramatoulaye M., a 16-year-old from Côte d’Ivoire, said that his relatives sent him to work on the streets of Abidjan after his parents separated and remarried.[19]

Others, such as 16-year-old Yatma K., from Guinea, said that their new caregivers did not allow them to attend school.[20]

Several children told us they were simply unwelcome after the remarriage or death of a parent. Samuel A., a 16-year-old from Nigeria, said, “My stepmother did not want me around. My father told me it was time for me to take care of myself.”[21] Boubacar Y., a 15-year-old from Guinea, gave a similar account.[22] And a 16-year-old Guinean boy, Ismael K., told us that after his father died, his father’s second wife did not want him in the house.[23]

Other children described violence at the hands of one parent after a divorce or separation.[24]

Some children said that their religion or a parent’s religion was a source of tension in their family. Malik R., a 16-year-old from Senegal, explained that his mother is Christian and his father Muslim. “When I was 12, I chose my mother’s religion. My father hasn’t accepted that.”[25] Fabrice M., a 17-year-old Guinean boy, told us that he was raised Catholic, his mother’s religion; after his father died, his father’s family pressured him to convert to Islam, beating him and at one point burning him with an iron rod when he refused.[26] Sixteen-year-old Joshua F., from Cameroon, whose father was Muslim and mother Christian, said that after his parents died in an accident, “My father’s side, they did not like me. . . . They sold my father’s house and carpentry shop where I worked. I was on the street with my little sister.”[27]

In Joshua’s case, although he attributed his relatives’ actions to disagreement over religion, they may have been motivated simply by the desire to take his father’s property. Other children mentioned that their relatives wanted property that a deceased parent had owned. For example, Ousmane A., a 17-year-old, left Guinea with his brother after his half-brothers assaulted him and broke his kneecap during an inheritance dispute.[28] Adama M., a 17-year-old from Côte d’Ivoire, said that after his father died, his uncles turned him and his mother out of their house in Abidjan.[29]

Others left because they had no family to care for them, such as Abdullah S., a Liberian 16-year-old.[30] Another 16-year-old, Louis M., from Mali, said, “My father and mother are dead; there is no life for me there.”[31] Assane B., a 15-year-old, said that he had been living on the streets in Guinea.[32]

These accounts of family abuse and neglect as significant motivations for migration are consistent with other research on unaccompanied children who travel to western Europe. For instance, a June 2017 report by UNICEF and REACH found that of 720 unaccompanied and separated children (97 percent of whom were boys) interviewed in Italy in 2016 and 2017, nearly one-third—and almost half of Gambian children—left because of violence or problems at home or with their families.[33]

Armed Conflict and Violence

Some children told Human Rights Watch they were targeted by armed groups or gangs.

For instance, Aliou M., 16, said he left Niger because of attacks by Boko Haram, an extremist armed group whose name in Hausa means “Western education is forbidden.” “Boko Haram placed a bomb at the mosque where my father and mother were praying, and they died. Boko Haram came twice to the house. They beat me at the mosque,” he said, showing us a scar.[34]

Siaka A., a 16-year-old from Côte d’Ivoire, told us that he was singled out by a local gang. “My big brother was in a gang . . . . There was a misunderstanding, so he left. On a Monday night, [the gang] came to get my brother at home, but he wasn’t there. They wanted to hurt us. They cut off my fingertip with a machete,” he said, showing us that one of his fingers was missing the tip.[35]

In some instances, children told Human Rights Watch they or their families were targeted because of their religion, ethnicity, political opinion, or similar grounds. For example,

Ismaila D., a 16-year-old-boy from Guinea, told us that he left because he believes members of his ethnic group are targets of state-sponsored violence. [36]

Musa G., 18 at the time of our interview, told us he fled Guinea-Bissau in 2012 with an uncle after his father, a member of the armed forces, was killed during an attempted coup.[37]

Fode A., a 16-year-old boy from Guinea, told us that he left after his family died of Ebola. Because he was the only survivor, the community blamed him for the tragedy:

My father died when I was a baby, it was my mother who did everything. But at the end of 2013, Ebola touched my whole family. Mom and her brothers died while they were trying to do everything [to take care of us]. I had to leave school because my friends said I had Ebola. They told me they were going to kill me. They said I was the one who brought Ebola [to the community].[38]

Trafficking

In some cases, children told us they had not set out from their homes with the idea of coming to Europe. Some said they were taken outside their home countries against their will. Others said they said that they were misled about where they would be going or what work they would be doing. In such cases, they described circumstances that appear to amount to trafficking.[39]

For instance, Joshua F., a 16-year-old boy from Cameroon, told us that he left Douala with his younger sister and travelled to Yaoundé but never intended to leave his home country. He explained:

A boss offered me a carpentry job in northern Cameroon. I left with my 12-year-old sister. But he kidnapped us and took us to Chad. He turned us over to someone else to work with that person. We did the housework; he didn’t pay us. My sister worked a lot.

I wasn’t the one who decided to leave Cameroon. The gentleman told me there was a job in northern Cameroon. I would not have agreed to go to Chad.[40]

After some months in Chad, a group of armed men abducted him and his sister and took them to Libya.[41]

Others had not intended to cross from Libya to Europe. For instance, Kebba S., a 16-year-old boy from Gambia, escaped from a detention center in Tripoli with about nine other men and boys and were hiding in a field when they were approached by a man who offered to arrange their transport to Tunisia if they paid him. A total of about 50 people boarded an inflatable rubber boat. “There was a compass [for us to use] to head toward Tunisia. Then it started to rain. The compass didn’t work anymore,” he said. After two or three days at sea, a large vessel rescued their boat and took them to Catania, in Italy.[42]

Ill-Treatment in Libya

Nearly all of the 58 children we interviewed who said they had transited through Libya interviewed by Human Rights Watch described being held for ransom and detained in degrading and abusive conditions, forced to work, and subjected to beatings and other abuses while they were in Libya.

Although children usually referred to the places where they were held as “prisons,” most said they were not detained by government agents; the rest did not know who detained them. In one such account, Anthony L., a 15-year-old from Ghana, told us:

In Libya, I was sleeping in a camp in the desert, in Sabha [about 780 km south of Tripoli]. It was like a prison. There was no government, no officials. I was held by bandits. I stayed there for one week. It was very bad.

There were a lot of people, 700 people. They keep you in a room with no food. They beat you. They beat me to get money. They beat me for four days.

In the room, there was no space, you could not lay down. It was very hot. You could only stand, and you could not sleep.[43]

In another such account, Moses P., a 16-year-old boy from Gambia, said of the three months he was detained in western Libya, “It was very difficult, there were beatings and cuts with blades. In prison, I suffered so much. Beatings every day.” He showed us scars on his body that he said were from his time in detention.[44] Gabriel F., a 17-year-old Nigerian boy, said that in the place he was held in Tripoli, his captors “were taking girls to sleep with them.”[45]

Overcrowding, unsanitary conditions, and inadequate and often bad food were the norm in the places where children were held, we heard. “There were 10 to 15 people in each room, it was hot, so hot. There was only a small window,” Sékou M., a 16-year-old from Mali, told us.[46] Louis M., another 16-year-old boy from Mali, gave a similar account of the place he was held for a month in Libya: “In the prison, there was no window, there were many people. I did not eat much, only rolls.”[47] Oussenyou A., a 16-year-old boy from Guinea who said he spent a year in Sabratha, about 80 km east of Tripoli on the Mediterranean coast, told us, “We didn’t eat every day in Libya. Even the water wasn’t good. It was very difficult.”[48]

Children described being forced to work in fields or on construction sites if they were unable to arrange ransom payments from relatives. Joshua F., a 16-year-old from Cameroon, told us that after he and his younger sister were abducted in Chad, they were taken to Libya—he did not remember precisely where—and held by armed men. He said:

I was a victim of slavery. I was working in the fields [and] in construction sites. I managed to escape [from the first place he was held] but was caught and put in another prison. The [men] mistreated us and told us to call our parents to ask for money. But I do not have parents, so one day, a [man] killed my little sister in front of me. In the other prison, I worked in olive fields to pay the prison. The prison took the money.[49]

In a similar account, Siaka A., a 16-year-old from Côte d’Ivoire, told us that because he had nobody to call to arrange payment, “I was sold to someone to work. They did not give me money. I worked for two months cutting the grass for the sheep.”[50]

Many children said they endured physical abuse while they worked. Aliou M., a 16-year-old from Niger who told us he worked without pay in Libya for 10 months, said he regularly endured beatings from the man he worked for. “He hit me a lot, with a motorcycle cable, with sticks,” he told us.[51]

One boy told us he was repeatedly sexually assaulted for more than a year by a man who took the boy to his home.[52]

As with Joshua, the 16-year-old Cameroonian boy who saw his sister killed in front of him, other children told us that siblings or other relatives died from accidents or ill-health while they were in Libya. “I was separated from my big brother in Libya and later learned that he had died,” said Ousmane A., a 17-year-old from Guinea. He did not know the circumstances of his brother’s death.[53]

In other cases, children were separated from family members when they were detained in Libya and still did not know at the time of our interview what had happened to their relatives. Ajuma L., a 16-year-old from Gambia, said that he had not seen his brother since their detention in Libya in 2018.[54]

While it appears that the children interviewed in this research experienced abuses in smuggler captivity, children detained in official government detention centers in the western part of the country face similar conditions and treatment. Human Rights Watch and others have documented abuses against children in these official centers, including detention alongside unrelated adults, forced labor, beatings by guards, lack of access to healthcare, lack of adequate nourishment, and lack of access to education.[55]

Despite the well-documented abuse of migrants in Libya, the European Union maintains migration cooperation with the Government of National Accord, one of the two authorities contesting territorial and political control in Libya. The EU—and France—provides support to the Libyan Coast Guard to enable it to intercept migrants and asylum seekers at sea after which they take them back to Libya to arbitrary detention, where they face inhuman and degrading conditions and the risk of torture, sexual violence, extortion, and forced labor.[56]

A 2017 study of 19 unaccompanied children aged 16 and 17 who arrived in Italy found that all had suffered physical and psychological abuse at least once before and during their journeys, particularly in Libya; half of those who took part in the study had been sexually abused.[57] Similarly, an assessment by UNICEF’s Libya Country Office in 2016 found that migrant children and adults experienced high levels of sexual violence, extortion, and abduction while in Libya.[58]

The Perilous Sea Crossing

We were on a Zodiac that normally took 70 people, but we were 185 people, we were packaged like sardines. Thank God there were no deaths. It was a big MSF boat, the Aquarius, that saved us.

—17-year-old Ousmane A., from Guinea

The boat was [inflatable,] like a balloon. I started crying. I was feeling very weak. Lots of people were on board. There was a pregnant woman and six or seven babies. The boat started leaking. I was so afraid.

—Gabriel F., a 17-year-old boy from Nigeria

Children described being taken to boats, usually inflatable vessels known as Zodiacs, and forced to board despite their fears that the vessels were already overcrowded. Ismaila D., a 16-year-old boy from Guinea, said that when his group was at the beach, armed men hit them until they boarded.[59] Sixteen-year-old Tahirou B., from Mali, gave a similar description, saying, “A man refused to get on the boat, so someone hit him with a baton.” He added, “It was the first time that I saw the sea, and I didn’t want to get in. But we were being hit, so I climbed in.”[60] Joshua F., a 16-year-old from Cameroon, told us, “There were many Arabs shooting in the water, forcing us into the water and making us get onto the boat. I lost a lot of friends” in the confusion that resulted.[61]

We heard numerous accounts of smugglers disabling or removing engines and leaving full boats to drift. “When the boat was in the sea, the Arabs took the engine. I thought they wanted to kill us. . . . We spent a lot of time on the water. There were people with bullet wounds and knife wounds. There were pregnant women on board,” 16-year-old Ismaila said.[62]

In some cases, children told us the boat ran out of fuel or the engine simply stopped working. Fifteen-year-old Issa B. from Mali made the crossing in 2018, in a boat that held more than 100 people. “We ran out of gas, we couldn’t move,” he said.[63]

And in other cases, children said that smugglers simply departed after handing telephones to migrants or pointing them toward Europe. “The Arabs accompanied us to a certain point and then they boarded jet skis and left,” Joshua F., a 16-year-old from Cameroon, said.[64]

Sidiki A., a 16-year-old boy from Guinea, described his boat’s rescue after five hours on the sea:

People were vomiting because of the waves. The women were crying. I was scared because I did not know where I was going and I do not know how to swim.

Around 8:00 a.m., we saw a helicopter in the sky. A few minutes later, a small boat with two people came very fast. They told us not to move around. Around 10:00 a.m., they came back and gave us life jackets. Then they left. At 11:00 a.m., the big boat arrived and rescued us.[65]

Sékou M., a 16-year-old boy from Mali, told us his brother died when their boat capsized in the Mediterranean.[66] Issa B., the 15-year-old, also from Mali, told us that another boy he was travelling with drowned when they crossed the Mediterranean. “We were in the same boat, but he died. . . . Many people fell out, all died” when the boat went through heavy waves, he told us.[67]

In some cases, children rescued at sea remained on rescue vessels for days or weeks before the vessels were allowed to dock in Italy. Ousseynou K., a 16-year-old from Guinea, said that after he and others were rescued from their boat, they waited on a vessel he described as “a large international boat” before Italian authorities would allow them to disembark.[68]

Neglect and Abuse in Italy

I tried to go to school [in Italy], but the people at the center turned me down. I tried to ask for training in computers; they refused. There was nothing to stay for and nothing to do. We had two choices: eat and sleep, and nothing more. Nothing else.

People insult you on the street: vaffanculo (“fuck off”), negro di merda (“black piece of shit”). . . It’s unbearable for us.

Amadin N., 17, who spent 12 months at a reception center for unaccompanied children in Naples[69]

All of the children we interviewed who had spent time in Italy before coming to France said that they left Italy in large part because of the combination of lack of access to education and health services, inadequate living conditions in the reception centers where they were housed (which they referred to by the Italian word campo, “camp”), and discriminatory attitudes. These were not the only factors that children cited when explaining why they chose to travel to France—in particular, children from French-speaking countries frequently mentioned the shared language and what they saw as a shared history between their countries of origin and France—but it was striking that many of the children we spoke with said they had spent at least six months in Italy before deciding to leave, suggesting that they had not arrived in Europe with the definite idea of France as their destination.

Lack of access to schooling was children’s most frequent complaint about their life in Italy. Nearly all said that they were only able to attend Italian lessons. Children who attended said the lessons were irregular and so short that they could not speak Italian even after a year or more in Italy.

“If I could have had school, that would have made me happy. In the campo, school was two times a week for one hour. It’s not sufficient. I stayed at the campo for six months. I left the campo because I have to finish school and learn a trade,” Sékou M, a 16-year-old boy from Mali, said of his reception center in Foggia, near Bari.[70] In a similar account, Fode A., also 16, from Guinea, said, “We wanted to go to school. But we didn’t go for six months. And even when we went to school [for language lessons], it wasn’t the right way [to learn]—only two times a week.”[71]

Children were particularly conscious that they were not attending classes with Italian students, which many took as an indication that they were not getting the same education that Italian children would receive. “The school was just to know how to write the language. It was inside the campo and there were only black students,” Ajuma L., a 16-year-old Gambian boy, said.[72]

Many children also said they had not received needed medical care in Italy. As one example, Mbaye T., a 15-year-old from Senegal, said he told the staff at his campo in the province of Cuneo, south of Turin, that he had sickle cell anemia but did not receive treatment.[73] We heard from other children who said they did not receive medical care while in Italy. For instance:

  • “In Italy, I asked several times to see a doctor, but I only saw him once and the doctor did not give me any medication,” Louis M., a 16-year-old from Mali, told us, saying that he spent six months in a reception center near Milan.[74]
  • “In the campo, my head hurt and my foot was injured. I never saw a doctor or received medication,” said 15-year-old Issa B., also from Mali, who said he was placed in a reception center in Enna, a town in Sicily near Catania, where he stayed for about six months.[75]
  • “My stomach hurt, I cried, but I was never taken to the hospital. I asked for a doctor. I cried, but I was not looked at. I never saw a doctor” during the six months he was in a reception center in Catania, Joshua F., a 16-year-old from Cameroon, said.[76]

Racist insults and other discriminatory interactions were another factor in some children’s decision to leave Italy, they told Human Rights Watch.[77]

Some children also described overcrowding and unsanitary conditions in their reception centers.[78] Some said their reception centers housed a mix of adults and children.[79]

These accounts are consistent with reports of nongovernmental organizations and Italy’s children’s ombudsman. Italy’s reception system for unaccompanied children is at capacity, with just over 3,700 places available in January 2019 for more than 10,000 unaccompanied children in the country.[80] As a result, unaccompanied children are also held in temporary facilities[81] and at times in reception centers together with adults.[82] Conditions vary widely in facilities across the country, but access to education and health are concerns in many centers.[83] In Sicily, in particular, unaccompanied children are often placed in centers located far from urban areas, with little access to schools and health services, the nongovernmental organization InterSOS reported in April 2019.[84]

The European Asylum Support Office’s 2018 guidance on reception conditions for unaccompanied children calls for unaccompanied children to have access to education, health care, and psychosocial support while they are in the care of EU member states.[85] In addition, the European Commission has called for member states to “establish procedures and processes to help identify durable solutions on an individual basis . . . in order to avoid that children are left for prolonged periods of time in limbo as regards their legal status.”[86]

In 2017, Italy enacted a new law for the protection of unaccompanied migrant children[87] that has been hailed by some human rights groups and UNICEF.[88] Nonetheless, the Association for Legal Studies on Immigration (Associazione per gli Studi Giuridici sull’Immigrazione) has identified significant protection gaps remaining under the new law,[89] and Oxfam has noted significant problems with the law’s implementation, including access to education and information about seeking asylum in Italy or requesting reunification with family members in other EU member states.[90]

Before the law was passed, human rights groups reported that unaccompanied children were not receiving enough food and clothing in some reception centers[91] and that some were placed in centers for adults.[92]

In addition, several children cited Italy’s new immigration law, often known as the “Salvini Decree,” which ended humanitarian protection permits for adult asylum seekers, limited access to shelters for asylum seekers, increased permissible detention periods pending deportation, and made it easier for Italian authorities to revoke refugee status.[93] The new law does not directly affect the situation of unaccompanied children, who are eligible for shelter in dedicated reception centers and, after reaching the age of 18, continue to receive shelter until their asylum claims are heard, [94] but the children who mentioned it took it as a sign that they were not wanted in Italy.

Replying to our request for responses to these accounts, the Italian Ministry of the Interior stated that all unaccompanied children are placed in dedicated shelters, where they have access to education, and that all unaccompanied children are entitled to health care in Italy, including before they receive permits to remain in Italy. The ministry also stated that it issued written standards for reception centers in 2016 and is in the process of revising the standards to reflect the 2018 immigration law. Finally, the ministry told us that it has conducted numerous visits to receptions centers, noting that shortcomings discovered on these visits may give rise to disciplinary measures and in serious cases the closure of the center and legal proceedings.[95]

“Children tell us, ‘In Italy, we have no hope,’” said a volunteer with Tous Migrants in Oulx, the last major town in Italy before the border with France.[96]

 

II. Police Pushbacks

Crossing the border is a matter of luck with the police. It depends on their mood.

—Amadin N., 17, Benin, interviewed in Gap in January 2019

French border police sometimes return unaccompanied children to Italy summarily, without affording them the legal safeguards to which they are entitled under French law.

Human Rights Watch heard nine accounts from children who said they were summarily returned to Italy by French border police, including children who attempted to cross between Bardonnechia and Modane, in the Savoie department, and between Ventimiglia and Menton, in the Alpes-Maritimes department, as well as those who were apprehended in the Hautes-Alpes department. Two of these children told Human Rights Watch that police did not ask their ages before summarily returning them, and seven said the border police returned them to Italy even after they said they were under age 18. All nine crossed the border on subsequent attempts.

We also heard of six cases in which border police accepted children’s stated age. There was no discernible pattern: some of those accepted by police had birth certificates but others did not; some were among the youngest children we interviewed, while others were 17; and even though all looked very young, many of the children who said they were summarily returned also looked very young. Rather, it appeared to be a matter of individual officers’ whim.

When we raised these cases with the Hautes-Alpes prefecture, Jérôme Boni, border police director for the Hautes-Alpes and Alpes de Haute-Provence, told us, “Everybody who claims to be a minor is treated as such. That’s at border posts, if they’re intercepted on a road, on a trail, in the mountains.”[97] But entry refusal documents viewed by Human Rights Watch do not substantiate his description of border police procedures: in October 2018, for instance, two migrants who told border police they were under age 18 received entry refusal documents stating that they had “refused to make a coherent declaration of identity” (“refuse de déclarer une identité cohérente”) and noting that border police judged that they appeared to be adults (“apparence Majeur”).[98] The nongovernmental organization Anafé has also observed refusal documents “bearing the indication ‘adult appearance.’”[99]

French law allows for an expedited process, “refusal of entry” (refus d’entrée), for children and adults who are stopped within 10 km of a land border and found to be in France irregularly. French border police refused entry to 315 persons in 2016, 1,899 in 2017, and 3,787 in 2018, the prefecture told Human Rights Watch. In the first five months of 2019, police refused entry to 781 persons—about the same number as in the first five months of the previous year, when 718 were refused entry.[100] The border police director told us that all refusals of entry were of adults, adding that in 2018, police stopped an additional 635 persons who identified themselves as children, and in the first five months of 2019, 147 who said they were under age 18. None of these individuals claiming to be a child was refused entry, he told us.[101]

In cases of refusal of entry, police must notify the person in writing, in a language the person understands, of the reasons for refusal of entry and the rights to seek asylum and to appeal the refusal. Children should be appointed a guardian and should be treated as “vulnerable” and given “particular attention.”[102] The notice of refusal of entry includes information about the person’s identity, including their date of birth. French police give a copy of the notice to Italian authorities, the border police director told us, adding that Italian authorities in Piedmont do not accept returns of children.[103]

EU regulations do not require Italy to accept such returns of unaccompanied children and in fact prohibit the return of unaccompanied children who seek asylum in France or who have family members in France.[104] Under French law, unaccompanied children who are not subject to refusal of entry should be referred to French child protection authorities. Human Rights Watch’s interviews indicate that French border police and other French law enforcement authorities do not regularly follow the procedures described to us by the border police director.

For instance, 17-year-old Amadin N., from Benin, told us that he was turned back by French border police on his first attempt to enter France. “I showed my papers that said that I was a minor, but the police didn’t want to hear it,” he told Human Rights Watch. The border agents did not offer him a copy of the refus d’entrée (refusal of entry) form, he said.[105]

Ibrahim F., a 17-year-old Gambian boy, one of the two children we spoke with who was summarily returned without being asked his age, told Human Rights Watch that he heard from others in his group that the border police asked two other boys their age and allowed them to continue into France. He did not realize at the time what police were asking the other boys because he did not understand French. Police held him and the rest of the group for two hours before returning them to Italy.[106]

The other boy who told us police did not ask his age before returning him to Italy, 16-year-old Ismaila D., from Guinea, said that when he tried to enter France by road in a group, the police returned all of them without asking ages: “We walked along the road, a lot of us. The French police had a roadblock, so we were returned to Italy. They didn’t ask my age.”[107]

Issa B., a 15-year-old boy from Mali, told us that French border police returned another boy and him after they tried to travel to France by bus:

We took the bus to cross the border at Bardonecchia. The police caught us at the border at Bardonecchia. They took us to an office. That lasted from 8:00 a.m. to 2:00 p.m. The French police called the Italian police. They didn’t come very quickly. The French police asked if I was a minor. I said yes. They told me that if I didn’t have any documents or a passport, I couldn’t enter. They wrote something on a paper, but they didn’t give it to me, they gave it to the Italian police.[108]

In one case, a boy said the French border police entered the wrong year of birth on the refusal of entry document, so it listed him as an adult. Kebba S., a 16-year-old from Gambia, told us that on his first attempt to cross into France:

Yesterday, once I reached [the Italian town of] Oulx, I took the train to Modane [in France]. When I got off the train, the police caught me. They asked what country I was from and my age. Then they filled out a document that I couldn’t enter the country. I gave them my date of birth, 2002, but I saw that when the police officer filled out the document, he put another date of birth, 2000. I refused to sign the document. The police then took me and put me on the train to go back to Italy.[109]

Six children told us they were allowed to continue their journey into France after police stopped them. In most of these cases, border police arranged transport for the children. For instance, when Mbaye T., a 15-year-old boy from Senegal, crossed from Italy into France, he said, “I left for Claviere, and I went through the police post [outside Montgenèvre.] Seeing me, the police officer said he was going to call somebody to take me to Briançon.”[110] Sayo A., a 16-year-old Senegalese boy, told us that border agents arranged for him to be taken to a hospital when he told them that he was having trouble walking:

I arrived alone at the border, at Claviere. It was night, I started to walk on my own through the snow. I walked in the mountains from 1:00 a.m. to 7:00 a.m. At 7:00, I saw the French police station on the border. I went up to the police, my feet hurt too much. They asked my age, I said I was 16. I said that my feet hurt a lot. They called me an ambulance, which took me to the hospital in Briançon.[111]

Similarly, Malick I., a 15-year-old from Gambia, told Human Rights Watch that after he showed the border police a photo of his birth certificate on his phone, they called the health center in Briançon to pick him up.[112] Another boy, Ramatoulaye M., a 16-year-old from Côte d’Ivoire, said that after border police apprehended him in the mountains near Montgenèvre, they called a volunteer to drive him to the shelter.[113]

In other cases, the border police simply allowed children to walk on, as with 17-year-old Habib F., from Senegal, and Fakkeba S., also 17, from Gambia.[114]

In the cases in which police did not summarily return children to Italy, three were 15, and all looked very young. Three, including a 17-year-old, had copies of their birth certificates.[115] One boy’s successful entry seems to have been the result of persistence:

The French police sent me back four times even though I said I was a minor. The fifth time, when we arrived at the French border post, an officer saw us, the same one as the other times. He said the minors could enter but not the adult with us. “The minors have priority,” he said, so the adult was sent back.[116]

When 13 nongovernmental organizations documented police practices on the border between Claviere and Montgenèvre in an October 2018 observation mission, they found substantially the same abuses.[117] “We collected testimonies about modified birth dates, identity papers thrown to the ground or torn by police,” said Agnès Vibert Guigue, a lawyer who took part in the observation.[118] French and Italian nongovernmental organizations have reported similar conduct by French border police operating in and around Menton, the French town in the Alpes-Maritimes department across the border from Ventimiglia, Italy.[119]

Volunteers and activists who take part in mountain searches in the Hautes-Alpes gave similar accounts. “There are refusals [to accept] minor age by the PAF [the French border police], rejection of papers, sometimes destruction of identity documents (including birth certificates). The last instance was yesterday,” one volunteer told Human Rights Watch in late January. “There are also instances of sick minors left on public roads,” he added.[120]

To avoid apprehension by border police and possible summary return, children told us they walked high into the mountains, increasing their risk of frostbite and exhaustion. “We heard that if the police caught us, they would send us back to Italy,” Issa B., a 15-year-old Malian boy said, explaining why the group he travelled with walked high through the mountains.[121] “We walked a long way in the mountains to avoid the police,” said Eva L., a 17-year-old girl from Guinea.[122]

Protection Against Summary Returns

France reintroduced border controls at its land borders with other EU member states in December 2015, after attacks in Paris, and has regularly renewed immigration controls since then.[123] While the reintroduction of these land border controls is in effect, French authorities can conduct immigration checks within 20 km of a land border with another EU member state as well as at international train stations, marine ports, and airports.[124] When border police or other authorities conduct these checks, they verify identity, including name, surname, and date and place of birth. French law provides that individuals who declare that they are under the age of 18 receive the benefit of the doubt, meaning that they are treated as children in the absence of substantiated reasons to believe they are adults.[125]

Those who are found to be in France irregularly may be subject to an expedited procedure, “refusal of entry” (refus d’entrée), if they are stopped by police within 10 km of the border with another EU member state while the reintroduction of land border controls is in effect.[126] In such cases, authorities should issue a written refusal to a person found to be in France irregularly,[127] using a language the individual understands, and should inform the person of the right to seek asylum and the right to appeal the refusal of entry, among other rights.[128] Children may be refused entry, but they should be appointed a guardian.[129] The law also provides that “[p]articular attention is given to vulnerable people, especially minors, unaccompanied or not by an adult.”[130]

A child who is stopped outside of the 10 km border zone is not subject to the “refusal of entry” procedure and is not subject to expulsion or removal.[131] Authorities should treat unaccompanied children stopped outside the 10 km border zone as children in need of protection and should refer them to child protection authorities.[132]

The children interviewed by Human Rights Watch all appeared to have been stopped by police within 10 km of the border with Italy. But in the cases of children who described summary returns to Italy, police did not appear to have afforded the limited procedural protections required by law—police did not always give children written notice of the reasons for refusal, did not appear to take the steps necessary for the appointment of guardians, did not routinely ask children their ages, and in one case recorded a date of birth that was different from what a child claimed. These accounts are at odds with the procedures described to us by the border police director for the Hautes-Alpes and Alpes de Haute-Provence.[133]

Under the EU Asylum Procedures Directive and the EU Dublin III Regulation, unaccompanied children who have applied for asylum in France should not be returned to Italy.[134] Returning unaccompanied children without notifying them of their right to apply for asylum and affording them the opportunity to do so also violates the Asylum Procedures Directive.[135] In addition, unaccompanied children with family members in France have the right to family reunification under the Dublin III Regulation, meaning that those children should also not be returned to Italy.[136]

The accounts we heard from children as well as from volunteers and activists are consistent with the findings of the National Consultative Human Rights Commission (Commission nationale consultative des droits de l’homme, CNCDH), the Inspector General of Places of Deprivation of Liberty (Contrôleur général des lieux de privation de liberté), and the French Defender of Rights (Défenseur des droits). In 2018, the CNCDH found that many unaccompanied children were returned without the procedural protections required by French law, including the appointment of a legal guardian, and also noted reports of police altering birth dates on refusal documents.[137] With respect to these practices in the Alpes-Maritimes department, the Inspector General of Places of Deprivation of Liberty found in 2017 that French police summarily returned unaccompanied children to Italy.[138] Also with regard to practices in the Alpes-Maritimes, the Defender of Rights found that the return of unaccompanied children to Italy without these procedural protections was “contrary to the Convention on the Rights of the Child and does not respect the procedural guarantees set forth in European law and French law.”[139]

III. Arbitrary Age Assessment Procedures

You gather up your courage with both hands to tell your story, and you are told you are lying. It cannot be right.

  — Amadin N., 17, Benin, interviewed in Gap in January 2019

In cases reviewed by Human Rights Watch, unaccompanied migrant children arriving in the Hautes-Alpes were frequently denied formal recognition as children in age assessment procedures that placed undue weight on minor inconsistencies with dates, reasons such as working while in home countries, or officials’ ad hoc assessments of their physical and psychological “maturity”—all factors that either have little or no bearing on their declared age or cannot determine age with precision.

Many of the children interviewed for this report said that they did not understand the interpreters assigned to their age assessment interviews. Many also said they could not answer questions effectively because they did not know the purpose of the questions, felt the official did not want them in France, or were exhausted from their journey and in some cases injured. The few children who had birth certificates or other identity documents told us that their documents were nearly always referred to border police for authentication, despite the presumption in French law that foreign documents are valid in the absence of substantial reason to doubt their legitimacy.

Children receive emergency shelter and access to other social services after an evaluation determines that they are under age 18,[140] meaning that formal recognition as a child is a crucial first step for unaccompanied children to receive protection and care in France. Entry into the child protection system can also lead to access to regular immigration status upon adulthood.[141]

Because many children do not arrive with birth certificates or other identity documents, assessment procedures should enable authorities to establish age through comprehensive interviews by psychologists, social workers, and other professionals.[142] French regulations provide that age assessments should be conducted in a manner “characterized by neutrality and compassion.”[143] Following international standards, age assessments should give the benefit of the doubt when there is a reasonable possibility that the declared age is correct.[144]

In the Hautes-Alpes, the Departmental Council’s Directorate of Prevention Policy and Social Action (Direction des Politiques de Prévention et de l’Action Sociale) conducts these age assessments.[145] Elsewhere in France, some departments delegate this function to nongovernmental organizations.[146]

The Hautes-Alpes prefecture told Human Rights Watch that it had taken 2,503 unaccompanied children into care in 2018 following age assessments.[147] Separately, the Departmental Council’s Directorate of Prevention Policy and Social Action told Human Rights Watch that it undertook “close to” 2,846 age assessments in total in 2017 and 2018, an average of 1,423 each year.[148] The number given by the prefecture of children formally recognized and taken into care is also substantially higher from that reported by the Ministry of Justice, which states that the Hautes-Alpes department recognized 381 unaccompanied children in 2018, of which 351 were then transferred to other departments under the allocation system known as répartition nationale. An additional four unaccompanied children were transferred to the Hautes-Alpes from other departments, according to the Ministry.[149]

Human Rights Watch interviewed 35 children who had undergone age assessments in the Department of Hautes-Alpes. Two were formally recognized as children in these age assessments; the others received negative evaluations. Seven of those who received negative evaluations were eventually recognized formally as children after a juvenile court judge (juge des enfants) reviewed their cases. We reviewed an additional 36 evaluation reports prepared by the Departmental Council to explain the outcome of age assessments, as well as 13 juvenile court judgments that reviewed negative age assessments made by the Departmental Council.

The age assessment evaluation should take the form of a “multidisciplinary” interview that includes questions about the youth’s family background, reasons for leaving the country of origin, and plans for the future.[150] Age assessments conducted in the Hautes-Alpes department cover these topics but, in the cases reviewed by Human Rights Watch, it is not apparent that they fulfil the regulatory requirement that they be multidisciplinary in nature. Children told us they were interviewed by a single official with the assistance of an interpreter. Nothing in the evaluation reports suggests what, if any, diagnostic criteria were employed to assess responses, whether the decisions are the outcome of evaluation by a multidisciplinary team or a single individual, and, if by a single individual, how the Departmental Council ensures that the assessment meets the requirement that it be multidisciplinary in character.

The Departmental Council declined our requests for a meeting to discuss these findings and, in response to our request for comment, wrote:

Although it is particularly concerned with and involved in the reception and shelter of unaccompanied minors on its territory, the departmental institution will not provide detailed answers to the many questions asked in your correspondence. Their reading reveals a clearly biased and unjustly critical approach and interpretation of the procedures put in place by the Department. They seem to argue that the Hautes-Alpes Departmental Council disregards the most fundamental principles in respect of the rights of the young people who are welcomed and evaluated. These allegations, made against an institution whose essential mission is solidarity, are unworthy.[151]

Those who are not found to be under the age of 18 as a result of this interview should receive a “reasoned decision” from departmental authorities.[152] In fact, they ordinarily receive a form letter stating simply that they have not been recognized as a child.[153] The complete evaluation report is not available to them unless they or their lawyer requests it.[154]

They may seek review of adverse age assessments, a procedure before the juvenile court judge that frequently takes months.[155] Alternatively, in a procedure that some lawyers have employed successfully in the Hautes-Alpes, a family court judge (juge des tutelles) can determine that a person is a child in need of protection, a finding that includes a determination of the person’s age.[156]

Although this report focuses on the Hautes-Alpes department, Human Rights Watch has found similarly capricious decision-making in Paris[157] and has heard accounts of arbitrary age assessment practices elsewhere in France.

Poor Interpretation

We heard frequent complaints about the quality of interpretation for all languages, including English. Children said that interpretation by telephone, the usual practice in the Hautes-Alpes, was particularly difficult to understand. Among the accounts we heard:

  • “The translator couldn’t come so he was translating through the phone. I couldn’t hear him well. He didn’t understand my English and I often didn’t understand what he was saying,” Gabriel F., a 17-year-old from Nigeria, told us.[158]
  • “At that time, I didn’t understand anything of French, even if you asked me my name. The translator on the phone tried to speak my language. She said she understood, but she didn’t get anything. She spoke Senegalese Peul and I speak Guinean Peul,” said Sidiki A., a 16-year-old Guinean boy. When he received the decision informing him of the negative age assessment, he saw that it inaccurately reported what he said in the interview. “In the evaluation report, there were a lot of differences. It wasn’t what I said. I didn’t say that,” he told us.[159]
  • Ismaila D., another 16-year-old from Guinea, said, “There was a Peul translator on the phone but it was Senegalese Peul so I didn’t understand very well.”[160]

A lawyer who has represented unaccompanied children after they received negative age assessments told us that in her experience:

Interpretation is by telephone, almost always with the same interpreter whose interpretations are very weak. For example, a young Ivoirian girl who spoke French quite well still asked for interpretation. She said that during the evaluation the translator did not translate her words well. She was annoyed for this reason, and that was held against her.[161]

As part of the age assessment process, officials ask youths to recount their personal history, including their time in transit, in detail. The failure to provide a complete account is frequently held against them, as discussed below. Nevertheless, we heard of some cases in which interpreters appeared to refuse to translate elements of youths’ accounts. For instance, a 17-year-old who was sexually abused over the course of a year in Libya, when he was 13, said that he tried repeatedly to tell the examiner about the sexual abuse he suffered:

I was tired, really tired, and I started crying. I told him what happened to me in Libya. That a man slept with me. But the translator told me it was not important. He also said that he had not a lot of time. I was shocked. The interview lasted approximately 45 minutes.

They rejected my [claim that I was under 18]. When I received the report, I saw that they put things that I didn’t say and that a lot of important things that I said were not in the report. I didn’t understand. I showed the report to [a member of the Réseau Hospitalité] because I was shocked. I think that it’s the translator’s fault.[162]

Stressful, Confusing, Often Intimidating Interviews

Children often said they were unsure of what they were being asked or why and intimidated by seemingly indifferent or hostile evaluators. Some described having trouble focusing on the interview because of injuries they suffered on their journey. Others said they felt uncomfortable answering sensitive questions posed by a stranger who appeared to focus more on the computer screen than on the child across the desk.

Some youths described questions or comments that were improper or that they felt were posed aggressively. A 17-year-old Guinean girl described the examiner who interviewed her in 2018 as “nasty,” saying:

She was putting pressure on me. She was asking me to say things I did not want to say. She said to me, “Tell me the truth. Tell me you’re of age.’ But the truth is that I’m a minor. I told her I could not increase my age. My mother is 34 years old, my father is 36 . . . . I was 16-and-a-half.[163]

Kojo D., a 15-year-old Ghanaian boy who received a negative age assessment three days after his interview, told Human Rights Watch:

The lady asked me why I didn’t go to England because I speak English, but I said that I wanted to stay in France. . . . She said that they don’t need English people here, that it is not our place. I told her that it is unfair because we are all one people and that I want to learn. She was pushing me to say that I am over age.[164]

Children frequently told us that they found important discrepancies between the evaluation and what they had said in the interview. “I saw the report, and I never said the things that were written there,” said Ousmane A., a 17-year-old Guinean boy.[165]

Those who had identity documents were especially aggrieved that authorities seemed to disregard their documents as a matter of course. As one boy said, “What annoys me is that even if I have papers, that’s not good enough. I have a birth certificate with a supplementary judgment (jugement supplétif),” referring to a process of authentication by a court in his home country.[166]

Some children said that injuries or ill-health affected their ability to answer questions fully. For instance, Ousmane, the 17-year-old boy from Guinea, said he had a fractured kneecap from an attack in his home country and told us that he was in so much pain that he could not focus on the questions during his age assessment: “I still had pain in my knee. The department said they could not do anything. During the evaluation interview, I was hurting too much. . . . I could not answer the questions because I was suffering too much.”[167]

French regulations require that age assessment interviews be conducted in a manner “characterized by neutrality and compassion.”[168] International standards call for such interviews to be conducted in a “safe” environment and a “fair manner,” in a way that is sensitive to the child’s age, gender, psychological maturity, and emotional state.[169]

When we asked the department to respond to the accounts we heard, it replied:

With regard to the conduct of interviews, the multidisciplinary evaluation team of the Unaccompanied Minor Unit of the Department of Hautes-Alpes strictly applies the procedures as defined in the framework of Decree 2016-840 of June 16, 2016, and the Order of November 17, 2016. . . .

In addition, and before the interviews, each of the evaluators reminds the young people of their assessment in order to ensure that they understand the process correctly and, if necessary, answer their questions.

Finally, the search for neutrality in the conduct of the interview is a permanent instruction that the team applies without establishing differences between the young people. The environment is “safe” because it is the premises set aside for the activity of the Unaccompanied Minor Unit.[170]

Arbitrary Bases for Decisions

Human Rights Watch reviewed 36 age assessment decisions made by departmental authorities in Hautes-Alpes between July 2017 and June 2019. All but one was a negative assessment, meaning that authorities found that the individual was not a child.

Perceived confusion or lack of coherence in the account, whether with regard to the journey to Europe or schooling or other aspects of life in the home country, was a common ground for rejection in the decisions we reviewed.

Evaluators cited errors with dates, particularly for school attendance,[171] failure to remember the names of towns passed in transit[172] or the precise mode of transport used between specific towns,[173] and similar mistakes as a basis for a negative age assessment. Repetitive or disorganized accounts were also held against children.[174]

Moreover, many of the reports dismissed reasonably detailed accounts as imprecise. In one account criticized for lack of detail, a 15-year-old boy from Mali stated that after his mother died when he was very young, he lived with his grandmother until her death, when he was nine years old. At that point, he started living with his stepmother. He described a typical day in his grandmother’s house activity by activity, beginning with the moment he woke up and greeted her, noting what he usually ate at each meal, and ending with the chores he would help her with before they went to bed. His account of a typical day with his father and stepmother, after his grandmother’s death, was no less specific, noting that he would play with his friends after giving hay to the sheep his family owned. In addition, he described the beatings his stepmother gave him, pointing out the parts of his body where she hit him and showing scars that were still visible on his torso. Summing up this part of his account, the evaluation report concluded: “[He] is able to give benchmarks and details before the age of 9 but not afterward, leading to misunderstandings. The speech is confused, succinct, and not very detailed, which creates confusion.”[175]

In another account, a 15-year-old from Mali told the examiner his mother was unmarried when she gave birth to him and said that he was raised in his grandmother’s household, consisting of about 20 people. He never went to school. Instead, he worked in the fields and did household work. He did not eat meals with the rest of the family and slept in the common area instead of with the other children in the household, and generally did not feel part of the family. Assessing this aspect of the boy’s account, the examiner concluded that he “delivers a story with few details. He gives little information on his way of life and the tasks he did in the fields.”[176]

In a third case, a 16-year-old from Cote d’Ivoire described his house in Abidjan (brick, with electricity and piped water), his apprenticeship to a tailor, and his forced recruitment by two gangs, an account of his life in his home country the examiner judged to have “few details.”[177]

Accounts that are very precise may also be interpreted as an indication of adulthood. For instance, a 16-year-old Malian boy who left school partway through his fourth year, when he was about 11, gave a detailed description of the places he travelled through in Mauritania and Morocco with his uncle but stated that he did not know where they were heading each time they moved on because he had never seen a map of Africa or of the world. Evaluating his account, the examiner wrote that it “contains particularly precise temporal and geographic references. It seems amazing that he claims not to know the geography of Africa, nor of France, as a country where French is spoken.”[178]

Work in the home country or on the journey to Europe may be taken as a sign of adulthood,[179] even though many children work around the world, sometimes at young ages.

Examiners in some cases reached adverse conclusions about children’s age based on an apparent presumption that children’s experiences should conform to formal legal requirements, such as the minimum working age for work or the age of schooling. For example, one examiner judged a Guinean boy’s account that he had begun to learn a trade at the age of 12 not credible “whereas article 142.4 of the Guinean Labour Code states that ‘no one may be an apprentice unless he is at least 14 years old.’”[180]

In another case, an examiner based a negative age assessment in part on the fact that a boy “says he began the first year [of school] at the age of 12 while ordinarily children are educated at the age of 5 in Guinea.”[181] The examiner also concluded that the following aspects of the boy’s account supported a negative age assessment:

  • “Once in Algeria, [the boy] worked, which is ordinarily [an activity] reserved for adults . . . .”[182]
  • “In Italy, [he] was in a camp with minors and adults while according to the law ‘Zampa’ . . . for the protection of unaccompanied minors, it is not possible for them to be in the same camp.”[183]
  • “He decided to leave for France to be protected while he was being cared for in Italy, which makes his purpose not credible.”[184]
  • “When he crossed the border, he was arrested and returned to Italy, which shows that the police recognized his physical maturity.”[185]

As with working, taking the decision to travel alone,[186] to leave Italy,[187] or to cross the mountains between Italy and France alone[188] may be taken as a sign of maturity, even if other aspects of their account are consistent with their claimed age. In one case, the examiner wrote that an Ivoirian boy’s decision to cross the mountains was a sign of maturity because that route “was usually taken by adults, as minors can present themselves at the border post without risk."[189] In fact, as discussed in the previous chapter of this report, border police sometimes summarily return people whom they believe to be adults, without regard to their declared age.

Making their own choices about their religion or their education may also be taken as an indication of adulthood. For instance, a Senegalese boy who said that he chose to follow his mother’s Catholic faith at the age of 12 was judged to show “autonomy and emotional maturity . . . incompatible with his age.”[190] To support this conclusion, the examiner stated that “Senegal is composed 94% of Muslims and traditionally it is the head of the family and so the father who passes on religion [to the children].”[191] In another case, an Ivoirian boy told the examiner that he left a Koranic school against the wishes of his father because he wanted to attend school in French, a decision the examiner concluded was a clear sign of maturity and autonomy.[192]

Deciding to leave an abusive situation may also be taken as an indication of maturity. For example, a 15-year-old Malian boy told the examiner he left his stepmother’s house and spent time living on the streets because she beat him regularly; the report concluded, “It seems that he showed a certain emotional autonomy, especially when he managed to spend several days on the streets alone.”[193]

In another case, a youth received a negative age assessment because he travelled on his own and offered a plan for making a living that the official deemed unrealistic:

[He] recounted his family history clearly and accurately. The reason for his departure is set forth. His migratory journey is also presented in a coherent way with regard to his itinerary as well as its duration. [He] has confirmed his isolation in France and in Europe. His physical appearance may correspond to the date of birth he tells us, but his plan to open a “tele-center” at the age of 15½ and the autonomy he showed during his journey call his minority into question. An administrative refusal is proposed.[194]

In some cases, examiners found that accounts show “autonomy” and “maturity” even in circumstances that suggest the opposite, as with a child who “followed people he did not know to unknown destinations just because he wanted to study.”[195]

Some reports conclude that other aspects of accounts are “unusual,” without stating which, if any, sources the examiners consulted to verify the account. Some of these questioned elements are not implausible, and in any event are not material to the issue of the youth’s age. For instance, the age assessment of a 15-year-old Malian boy stated that his account that he did not sleep in the same room as his uncle, who had lived in Tripoli for many years, was one of several “unusual facts” contributing to a negative evaluation.

Other aspects dismissed as “unusual facts” are instead adverse inferences drawn from accounts deemed to be insufficiently precise. At the same time, the evaluation report does not clarify whether the examiner asked for additional information about these points. The same 15-year-old, for example, told the examiner that his uncle arranged for him to be apprenticed to a Sudanese man to learn to lay tile. The boy also said that the man he was apprenticed to was absent from Tripoli for several months, during which time the boy’s uncle taught him to read and write in French and also had him study verses from the Koran. Discussing these aspects of the boy’s account, the report concludes, “He is unable to give details about his apprenticeship in Libya.” [196]

One boy said he said he was housed in Italy in a reception center that also held adults, a statement the examiner found not credible[197] even though human rights groups in Italy have reported that some centers hold a mix of adults and children.[198]

Examiners sometimes appear to disregard the explanations children offered for leaving their home countries. For instance, evaluating the account of the 16-year-old Ivoirian boy who said decided to flee after gangs forced him to work for them, the examiner wrote that the boy “gave no justification for what led him to go from tailoring to being part of two gangs.”[199]

Hesitation in answering, including when asked about traumatic events such as abuses in Libya or the dangers of crossing the Mediterranean, may be taken as evasiveness.[200] Similarly, requests that interpreters rephrase questions or statements by children that they do not understand the interpreter were also taken as signs of dissimulation in some cases.[201]

On the other hand, responses that indicate confidence or certainty are also held against children. One examiner cited a boy’s “use of a firm tone”[202] as among the reasons for a negative age assessment. Another boy displayed “an assured and confident attitude.”[203] Several reports cited attempts to correct mistakes by translators as an indication of adulthood:

  • In one case, a Malian boy “showed a certain psychological maturity” when, “understanding French, he took over the interpretation when he did not agree with the translation of the names of towns.”[204]
  • When a girl “understood that her responses were not sufficiently developed [by the interpreter], she became annoyed with the translator with a level of aplomb demonstrating a certain maturity.”[205]

As in the girl’s case, irritation or impatience may be taken as a sign of maturity,[206] as, on the other hand, are “nonchalance” and “lack of seriousness.”[207]

Several of the evaluations reviewed by Human Rights Watch cite “emotional distance”[208] and “lack of registration of emotions” when discussing separation from friends or family during the journey,[209] when describing abuses,[210] or throughout the interview[211] as evidence of maturity. In fact, as discussed more fully in the following section, such reactions are indicators of trauma, a reality that was not acknowledged in the evaluation reports Human Rights Watch reviewed.

Advocates suggested that examiners in the Hautes-Alpes do not consider the effects of trauma on children because they lack the specialized training necessary to conduct age assessments in the “multidisciplinary” framework required by regulations.[212] Asked how a multidisciplinary evaluation should be conducted, Yassine Djermoune, a lawyer in Gap, replied:

Evaluations should be conducted by a team that includes psychologists, educators, [and] people who have knowledge of geopolitics because it's important to know where the young person comes from, the reasons that led him to leave his country, the situation of his country. And we are not dealing with that in Gap, we do not know the quality of those who carry out the evaluations, we aren’t dealing with a multidisciplinary team that conducts evaluations—so we do not have psychologists, we have no experts in geopolitics, we do not have specialized educators who intervene, [and] in any case we are not able to assess their quality.[213]

He added, “Evaluations should be carried out in principle in a spirit of benevolence. The law specifies that the minor should receive the benefit of the doubt. In reality, there is no sign of benefit of the doubt. There is never any suggestion of applying the benefit of the doubt. So the slightest inconsistency in the story will be turned against the young person, and the result will be a finding of majority.”[214]

The Consequences of Trauma

Adverse inferences for the reasons described in the previous section do not appear to adequately account for the reality than many children and adults do not necessarily provide well-organized chronological accounts of their life and may often focus on details that seem irrelevant—particularly if they do not understand what is being asked of them or why. It is not clear that officials conducting evaluations appreciate the various ways children may respond to authorities—which can include curtailing responses due to intimidation or confusion and adjusting responses based on perceptions that the official wants a particular answer.

Such challenges may be factors with any child. In addition, unaccompanied migrant children have often experienced threatening, harmful, and potentially traumatic events—including harms in home countries; labor exploitation, arbitrary detention, and ill-treatment in Libya; and terrifying sea voyages.

Doctors with the Réseau Hospitalité who have examined unaccompanied children in Gap see a high incidence of symptoms that are consistent with post-traumatic stress disorder (PTSD) and anxiety, and in some cases, depression. Some children have attempted suicide.[215] These outcomes are not surprising in light of the experiences children recounted to us. They are also consistent with studies of unaccompanied asylum-seeking children elsewhere in Europe.[216]

Post-traumatic stress disorder has significant implications for age assessment evaluations. Adults and children with PTSD frequently report difficulties with memory, concentration, attention, planning, and judgement.[217] As Dr. Françoise Martin-Cola, of the Réseau Hospitalité, explains, “Inconsistencies in the accounts made by young people are often due to post-traumatic stress. They are in a confused state, and they do not retain clear memories of the most difficult experiences.”[218]

Examiners should be aware of these outcomes—particularly the memory difficulties associated with PTSD—in conducting age assessments and evaluating the responses they receive. They should recognize that mistakes with dates and other details are not reliable indicators of dissimulation, should expect many of the people they interview to have difficulties in providing coherent chronological accounts, and should know that avoidance of reminders of trauma, difficulties in concentration, and “numbing” of feelings and emotion or, alternatively, irritability, are associated with trauma.[219]

More generally, the age assessment process should take into account the likelihood that people being examined are experiencing PTSD. Screening for PTSD by qualified psychiatrists, with counseling prior to assessment for those found to have symptoms that could indicate PTSD, would improve examinations and result in a fairer process. In addition, specific protocols should be developed with input from experts in PTSD to determine when, how and by whom children with PTSD should be assessed.

Judicial Delay and Excessive Deference to Departmental Evaluators

The juvenile court can review negative age assessments, a process that takes six to eight months or more. For instance, Amadin N., a 17-year-old from Benin, was formally recognized as a child in June 2019, 10 months after he received a negative age assessment from the Departmental Council and sought review by the juvenile court.[220] Gabriel F., from Nigeria, and Joshua F., from Cameroon, each saw the juvenile judge in April 2019, six months after they sought review, and heard in June that the judge would rule on their cases in September, meaning that they would wait 11 months in all to have their cases reviewed.[221]

Commenting on the length of time required for a ruling from the juvenile court, a lawyer in Gap told Human Rights Watch:

In principle, everyone has the right to have their case dealt with in a reasonable time. When you are told that minors sometimes wait almost a year before seeing their minority recognized, there is clearly a delay that is unreasonable [with these cases.][222]

If the judge reverses the decision of the Departmental Council, the child is taken into the care of the child protection system. Because the effective date of entry into the child protection system is the date of the judge’s ruling, a child’s eligibility for immigration status upon reaching adulthood may be adversely affected, as discussed more fully in the following section. If the child turns 18 before or shortly after the judge’s ruling, the practical consequences of the order are negligible.

Lawyers and volunteers told Human Rights Watch that the juvenile court in Gap has frequently deferred to the decisions of the Departmental Council without considering whether evaluators complied with the procedures set forth in French regulations and in particular whether they adequately took into account the effects of trauma on children’s memory, concentration, and demeanor.[223]

Our own review of case files confirmed that the juvenile court in Gap has accepted departmental evaluations without appearing to consider these factors and without discussion of the principle of giving the benefit of the doubt if there is a reasonable possibility that the person is a child. For instance, in a November 2018 judgment reviewing the negative age assessment of a 16-year-old Senegalese boy, the juvenile court judge stated, “It is not up to the juvenile judge, who is not trained in sociological, ethnological, and psychological analysis, to substitute his own analysis for the evaluation work carried out by the Departmental Council.”[224] The judge noted a doctor’s report that the boy presented symptoms consistent with post-traumatic stress disorder and that, in that light and on the basis of her observations in multiple consultations, the boy’s behavior, physical appearance, and mental state were consistent with that of a child. The judge stated, “Taken alone, these elements, even if they shed useful light on [the boy’s] situation, are not sufficient to demonstrate the minority of the applicant.”[225]

In another case, the juvenile court acknowledged “the suffering and trauma” of children and adults “linked to the long, difficult, often dramatic migratory route.”[226] The court went on to say:

The specialized team of the Hautes-Alpes Departmental Council, having been trained in the analysis of migratory stories to test their credibility, considers that the physical and psychological maturity and lack of coherence of the narrative of [the applicant] demonstrates his majority. It is not up to the juvenile judge, who is not trained in sociological, ethnological, and psychological analysis, to substitute his own analysis for the evaluation carried out by the Departmental Council.[227]

Other judgments by the Gap juvenile court reviewed by Human Rights Watch contain no discussion of the court’s finding that additional evidence offered by the child was “insufficient to establish minority” and repeat in nearly identical wording that the court would not substitute its analysis for that of the departmental council.[228]

Some of the judgments we reviewed cited, as grounds for upholding negative age assessments, specific findings from the Departmental Council’s evaluation that, as discussed above, are unreliable as indicators of age. For instance:

  • Nine judgments relied in part on children’s inability to provide well-organized responses to examiners’ questions about their journeys, with no indication that examiners or judges considered the effects of age, education, and trauma on a child’s ability to provide structured, coherent narratives.[229]
  • Five judgments stated that a child “showed autonomy in taking the decision to leave his or her home country alone,”[230] even though children regularly travel unaccompanied to Europe and elsewhere in the world, as Human Rights Watch and other groups have reported.
  • Five judgments relied on examiners’ assessments of “physical and psychological maturity” (maturité physique et psychique), characteristics that vary widely among adolescents.[231]

One ruling noted with disapproval that a child’s description of his migratory route to the court was more detailed than that given in the original age assessment, without considering the possible effects of the opportunity for rest and reflection, psychological counselling, and the greater understanding of the need for detail and precision that legal assistance can provide.[232]

The juvenile court’s ruling can be appealed, a process that can take an additional year.[233] Eva L., a 17-year-old Guinean girl, told Human Rights Watch that she had appealed the juvenile judge’s decision in her case, “but by the time it’s over I’ll have become an adult.”[234]

An alternative that several lawyers in Gap have pursued successfully is to seek a ruling from the family court judge (juge des tutelles) that a person is a child in need of protection.[235]

The Consequences of Incorrect Age Assessments

Children who are incorrectly judged to be adults may face serious barriers in access to education and health services, even though education is in principle open to all in France,[236] and some forms of health services should be available regardless of a person’s migration status.[237] In addition, because those who are not formally recognized as children are not under the protection of the child welfare system, they are dependent on the overstretched emergency accommodation system for adults or on the generosity of private citizens. This includes those who are seeking review of negative age assessments.

The Réseau Hospitalité has succeeded in persuading local schools to enroll many of the children they work with in Gap.[238] It has also found accommodation for many of these children with private citizens who have agreed to open their homes to children in need. Without these private initiatives, many of these children would be homeless and would likely not be attending school while they waited for the judge to rule on their cases. These private initiatives are laudable, but they do not excuse the state from its responsibility to provide access to education for all and to ensure that children are not homeless while they exercise their right to review of negative age assessments.

Lack of recognition as a child has significant consequences for legal status. Children are not required to obtain a visa or residence permit (titre de séjour), regardless of their manner of entry to or length of stay in France,[239] while adults—and those who are not formally recognized as children—may be detained and deported if they cannot produce evidence of lawful status. A recent decree provides for the systematic transfer of personal data of all those who receive negative age assessments to the prefectures, administrative authorities under the Ministry of the Interior, which may then arrange for their removal from France—potentially before they have had an opportunity to seek review by the juvenile court.[240]

Negative age assessments and delays in review may also affect future immigration status even if formal recognition is ultimately extended because the timing of being taken into care by the child welfare system affects eligibility for residence permits and French nationality. A child who is taken into care before the age of 15 can request French nationality at age 18,[241] and a child who enters the child protection system before age 16 is eligible at age 18 for a residence permit to continue studies or to work.[242] Those who are taken into care after reaching the age of 16 may be able to obtain a student or work permit, but the process is more complicated.[243] Those who turn 18 during the age assessment process are ineligible for these permits.

Children’s Right to a Fair Process

As with adults, children have the right to a fair hearing when their rights are adjudicated,[244] including in any age assessment procedures—which can determine whether an individual enjoys the rights afforded to children. French authorities may assess age where there are serious doubts that a person is a child, but age assessment procedures that are arbitrary infringe on children’s right to a fair hearing and can also result in violation of children’s right to an identity.[245]

As a general matter, the child’s best interests should be “a guiding principle for determining the priority of protection needs and the chronology of measures to be applied in respect of unaccompanied and separated children.”[246]

Age assessment should be a last resort, used only where there are serious doubts about an individual’s declared age and where other approaches, including efforts to gather documentary evidence, have failed to establish an individual’s age.[247] In such cases, authorities should clearly and formally offer reasons why an individual’s age is doubted before commencing age assessment procedures. With respect to documents, the Committee on the Rights of Migrant Workers and the Committee on the Rights of the Child state, “Documents that are available should be considered genuine unless there is proof to the contrary . . . .”[248]

When age assessment procedures are used, they should be multidisciplinary in nature. Age assessment should be a comprehensive process that “should not only take into account the physical appearance of the individual, but also his or her psychological maturity.”[249] UNHCR notes that “the guiding principle is whether an individual demonstrates an ‘immaturity’ and vulnerability that may require more sensitive treatment.”[250]

To facilitate comprehensive assessments, one expert has recommended the establishment of “multi-agency teams based in regional age assessment centres. The multi-agency team would include social workers, paediatricians, psychologists, teachers and others able to contribute to the assessment process.”[251] The European Asylum Support Office recommends that two assessors be involved in the age assessment process when possible.[252]

Children should receive appropriate assistance, including the appointment of guardians before the commencement of age assessment procedures[253] and the assistance of qualified interpreters [254] throughout the procedure.

Interviews with children, whether as part of an age assessment process or for other purposes, require expertise and care. UNHCR cautions that “[c]hildren cannot be expected to provide adult-like accounts of their experiences”[255] and observes that “time is crucial in building trust and allows for proper recollection and sharing of information about the child’s own story which is useful in establishing his or her age.”[256] In particular, as the Committee on the Rights of the Child notes, children who have been living on the street “are often distrustful of adult intervention in their lives.”[257] For these reasons, interviews should be tailored to the needs of children and should be conducted by examiners with the necessary training and skills.[258]

Examiners should take particular care to avoid imposing their own culturally specific or other stereotyped notions of childhood in conducting age assessments. For example, working at young ages is uncommon in Europe but common in many parts of the world. Engaging in work, including very dangerous or difficult work or working for long hours, is not in itself an indicator of adulthood.

International standards call for individuals to receive the benefit of the doubt in cases in which age is uncertain or disputed. The Committee on the Rights of the Child has concluded that age assessment procedures “should accord the individual the benefit of the doubt such that if there is a possibility that the individual is a child, she or he should be treated as such.”[259] In similar terms, UNHCR observes that “[t]he margin of appreciation inherent to all age assessment methods needs to be applied in such a manner that, in case of uncertainty, the individual will be considered a child.”[260]

The age assessment and asylum procedures used in the Hautes-Alpes—and, as Human Rights Watch has previously documented, in Paris[261]—do not protect children’s best interests, do not afford them the benefit of the doubt, and in other respects do not afford them a fair process. As a result, many unaccompanied children in the Hautes-Alpes are denied their right to protection and assistance.

IV. Police Harassment of Aid Workers, Volunteers, and Activists

Border police and other law enforcement agents regularly subject aid workers, volunteers, and activists to document checks and vehicle inspections in circumstances that suggest that police are not employing them for public safety or other legitimate policing purposes. In many cases, police appear to employ these procedures selectively for the purpose of intimidation or harassment, or in order to create obstacles to humanitarian activities. These practices create a hostile environment for humanitarian workers and may undermine public trust in the police.

In addition, in some cases volunteers and activists have faced prosecution for what appear to be participation in search-and-rescue missions in the mountainous border region and other humanitarian acts that are permitted by law.

Such forms of harassment are not unique to the Hautes-Alpes; aid workers, volunteers, and activists operating in and around Calais have described similar practices to Amnesty International, the French Defender of Rights, Human Rights Watch, and UN special rapporteurs.[262] Police in France use overly broad powers to stop and search people in public spaces, even without any reasonable, individualized suspicion of wrongdoing, as a central tool in territorial control, leading to abuses particularly targeting France’s “visible minorities.”[263]

Abusive Document Checks

Volunteers and activists who regularly take part in mountain searches told Human Rights Watch that they are subject to document checks, or “controls,” with a frequency that indicates the checks are more than just a means of establishing identity. “[They’ve stopped us] several times during the evening. It’s a form of harassment,” a volunteer said.[264]

Other volunteers gave similar accounts. “Systematically when we take part in searches in Montgenèvre there are controls . . . often several times in the evening. It’s common to be stopped by the same police in the same evening,” one told us.[265] “I’m stopped by the gendarmes nearly every time I go up” to take part in a mountain search, another volunteer said.[266]

Describing these identity checks, a volunteer said:

They stop us. They stay 20 minutes with us. They are on the phone [to verify identity]. They ask a lot of questions about what we are doing. They want to take pictures of passports. In April, everybody was stopped two or three times in the [same] evening.[267]

Others interviewed by Human Rights Watch had similar accounts of repeated document checks. “There are identity checks several times in the same evening,” another volunteer said.[268]

The volunteers interviewed by Human Rights Watch said they believed they were singled out for their humanitarian activities. For example, one volunteer told Human Rights Watch:

It’s targeted, very targeted. We could see that they did not stop tourists or pedestrians. . . . I have had identity checks on the way home. It’s very targeted. They knew very well who they were talking to. It’s routine—not all the time, but almost. It’s almost every night. There really was a period there in February [when identity checks were particularly frequent].[269]

Police sometimes made comments that suggested they already knew the identities of those they stopped, volunteers said. For instance, one volunteer described a stop in Montgenèvre in August 2018:

I lowered the window and the policeman said to me, “Ah, you’re back, where is your car?” And he quoted the make and model of my car. That day, I was driving someone else’s car. When I told him I didn’t see why he mentioned that, he said, “Stop fucking with us, we know you were here all summer.”[270]

Volunteers who questioned identity checks or police conduct when they were stopped described particularly prolonged searches that included comments from police suggesting retaliation. For instance, in May 2019 a group of volunteers had their car searched thoroughly by police after one of them asked why they had been stopped. The officers who conducted the search said they were giving the volunteers “the full treatment” for questioning the officers’ authority, two of the volunteers present during the search told us.[271]

Volunteers at the migrant shelter in Briançon, including those who do not take part in mountain searches, also said they are subject to frequent document checks. “We’re stopped readily; our vehicles are known,” a shelter volunteer told Human Rights Watch.[272] Shelter volunteers who regularly took unaccompanied children to the police station the morning after they arrive at the shelter told us that police frequently check volunteers’ documents even if the volunteers have been to the police station several days in a row.[273]

Repeated Fines for Minor Infractions

Volunteers and activists, including those who staff the migrant shelter as well as those who take part in mountain searches, said that police often issued citations for minor vehicle infractions. “During the controls, they look at everything. You’ll be fined for the smallest thing,” one volunteer told us.[274] “We have to make sure our cars are in perfect order, because we can be fined for anything,” a volunteer with the shelter in Briançon, commented.[275]

Volunteers and activists gave the following examples, in many cases showing us copies of citations they had received:

  • A group of aid volunteers received a 90-euro fine for tires that were too worn.[276]
  • “Last week, [the police] issued a citation to a vehicle because the fog lights were on,” one volunteer told us in May 2019.[277]
  • “I received a fine for not having a sticker showing that I had studded tires,” a volunteer said. “It’s a form of tacit harassment.”[278]
  • A volunteer who took a group of children from the shelter in Briançon to the police station received a traffic ticket resulting in “four points on the license and a 90-euro fine. For whatever—for crossing the white line. There is no white line at the address there.”[279]
  • In another case, a volunteer parked behind the migrant shelter to unload supplies, driving briefly the wrong way down a one-way street to do so. “It’s five meters long . . . . Yes, I took it. I was in the wrong. The police were hidden there, a little further on. As soon as we pulled out, they approached us.” When the police asked for his identification, he removed his seat belt to reach into his pocket. For driving the wrong way, “I was fined 250 euros, and they took away three license points,” he told us. “And I received a second fine—for not wearing the seat belt. So another 250 euros and another four license points. So I got 500 euros in fines and they took away seven points all at once.”[280]
  • Another volunteer, also ticketed for taking the one-way road the wrong way into the parking lot, said that police treated her as though she had committed a serious crime. “They put real pressure on you, you feel it,” she said.[281]

We also heard of volunteers receiving fines for malfunctioning windshield wipers, broken tail lights, and low tire pressure.[282]

Some volunteers said they received citations for vehicle infractions after questioning the need for repeated identity checks. In one such case, police took a group of volunteers to the station and held them for an hour after they asked why they had been subjected to identity checks. One of these volunteers told Human Rights Watch:

When we were able to leave the police station with the car, we wanted to go back to Italy, but I crossed the white line to turn left, and we were stopped at the border post. They told us, “You are going to have a very bad night. We have the power to take away six license points.” They took my address in Briançon. They said, “One day we’re going to succeed in getting you.” I received fine of 180 euros and six points on my license.[283]

It is not improper for police to inspect vehicles and issue citations for infractions. But the circumstances of many of these citations, in particular the descriptions of statements made by police, suggest that police have targeted aid workers, volunteers, and activists in Briançon and Montgenèvre for harassment because of their humanitarian activities.

The “Offense of Solidarity”

At least since 2016, French prosecutors have brought charges against activists and volunteers assisting migrants and asylum seekers in the border region between Italy and France. Most prosecutions that have gone to trial have resulted in suspended sentences, but they have taken a significant toll on the accused and have contributed to the creation of a hostile environment for humanitarian work in the region. In July 2018 France’s Constitutional Council ruled that “any act of aid provided for humanitarian purposes” could not be punished, regardless of the migration status of the person being helped. The ruling also specified that facilitating the movement of irregular migrants within France should not be criminalized “when these acts are carried out for humanitarian purposes.”[284]

The ruling that followed the prosecution of Cédric Herrou, a farmer who helped hundreds of migrants and asylum seekers, ultimately led to a constitutional affirmation of the protection of humanitarian assistance. In February 2017, Herrou received a fine of 3,000 euros, suspended, for helping asylum seekers cross the border and, once they were in France, providing them with shelter, food, and transportation.[285] On appeal, the court increased his sentence to four months in prison, also suspended.[286]

Prior to Herrou’s case, there were many other instances of prosecution for humanitarian assistance to migrants in recent years. Pierre-Alain Mannoni, a marine ecology research professor, was arrested in October 2016 in the Alpes-Maritimes department after he picked up three Eritrean women who had just crossed into France, intending to give them a ride to Nice.[287] “They are afraid, they are cold, they are exhausted, they have bandages on their hands, on their legs,” he wrote of seeing them on the roadside.[288] He was initially acquitted and then, after prosecutors appealed, convicted and given a two-month suspended sentence.[289] The Court of Cassation, France’s highest court of ordinary jurisdiction, overturned Herrou’s and Mannoni’s convictions in December 2018.[290]

In another case, Martine Landry, an Amnesty International volunteer from Menton, across the border from Ventimiglia, Italy, faced charges of aiding illegal entry after she took two 15-year-old Guinean boys to a police station in July 2017.[291] In Landry’s case, decided after the Constitutional Council’s ruling, the criminal court dismissed the charges against her, finding that “[a]t no time did she seek to evade the law” but instead engaged in “a fraternal action for a humanitarian purpose.”[292] The public prosecutor’s office announced that it would appeal her acquittal.[293] As of late August 2019, the appeal was pending, but no date had been set for it.[294]

More recently, in April 2018, a group of demonstrators walked from Claviere, in Italy, to Montgenèvre, in France, about three kilometers away, and from there to Briançon. The march was in part a reaction to the activities of an anti-immigration group that was engaging in actions intended to prevent migrants from crossing the border near Montgenèvre. Authorities initially claimed that some 20 migrants walked across the border with the demonstrators, although they eventually said that only one migrant had in fact entered France during the demonstration. The public prosecutor charged seven of the demonstrators with using the rally to help migrants enter France irregularly. Two activists received prison sentences; five others received suspended sentences. Their appeals are pending.[295]

Human Rights Watch heard of other threats of prosecution for humanitarian activities in Hautes-Alpes and elsewhere. For instance, in June 2018 two men picked up an unaccompanied child, whom they described as being in “obvious distress,” on the road between Claviere and Montgenèvre and drove him to the police post to ask that the boy be taken to the hospital. Police told the two men they could either immediately give statements for use in a criminal investigation against them or be held in custody pending interrogation.[296]

In a case outside Hautes-Alpes, a volunteer said that when she took unaccompanied children to the Isère Departmental Council in July 2018, she received a summons to report for police custody (garde à vue) pending interrogation. She explained:

They kept me on July 31 for five hours to ask me questions: “Do I know them?” “Why did I accompany them?” That kind of thing. It was so absurd. . . . I did not answer the questions.[297]

She has not heard the outcome of this investigation. “I think they gave up,” she said.[298] It is possible that in light of the Constitutional Council’s ruling the police did not pursue any charges.

Nevertheless, despite the Constitutional Council’s ruling, in January 2019, in separate trials, two other volunteers who took part in mountain searches in and around Montgenèvre were charged with and convicted of aiding irregular entry. The two volunteers appealed their convictions.[299] One of these appeals is scheduled for a hearing in late October 2019.[300]

And in March 2019, seven activists with Roya Citoyenne, a group advocating for the rights of migrants on the French-Italian border, were held in police custody for more than 24 hours and their computers and phones seized. One of their lawyers told reporters that the reason given for the lengthy period of police custody was to investigate possible facilitation “of the entry, movement and residence of foreigners in an irregular situation for the period from September 10, 2018 to March 5, 2019.”[301]

These prosecutions, investigations, and police harassment come at a time of increasing hostility towards activists and volunteers providing vital assistance to migrants and asylum seekers in European countries. A recent study by the Research Social Platform on Migration and Asylum (ReSoma) found that between 2015 and 2019, at least 83 people have been investigated or prosecuted for facilitating irregular entry and transit, and 18 were investigated or prosecuted for facilitating the stay or residence.[302] The study found that in France, 31 people had been investigated or prosecuted on grounds of facilitating the entry, transit and/or residence of migrants in the same time frame.[303]

Because the stated aim of search-and-rescue operations by volunteers and activists is humanitarian, many speak of being prosecuted for the “offense of solidarity.” In an interview with Le Dauphiné Libéré, a regional newspaper, the Gap prosecutor took issue with this phrase. He stated, “Someone, including on a search-and-rescue mission in the mountains, finds a foreigner in the snow, who is on the other side of the border or who has just crossed it or who is on the French side, and notices that this person is in great distress—their duty is to help. [The issue] is not ‘do you have the right’; [it is that] you have the duty to help them.”[304]

Nearly every volunteer and activist we spoke with said the 2018 prosecutions in Briançon had focused their outrage and resolve but, at the same time, had seemingly emboldened police to escalate harassment against them. One activist commented that the prosecutions had had a “double effect”:

[They have] motivated people to fight despite the penalties that have fallen on them. [And] the police have changed their technique by harassing us. Identity checks, even when we’re walking in Montgenèvre and of course on the route [between Italy and France]. And even here [in Briançon] they’ve waited for us behind the shelter. And then it’s checking identity documents, the paperwork for the car, and being fined.[305]

Other activists agreed that police harassment had increased after the trials. Reflecting on the process, one commented, “All of this . . . the trials have changed our lives. This summer, there was no way [for me] to walk around Briançon without being stopped. I now have difficulties crossing the border.”[306]

And although all of the activists who were charged and convicted told us that the court case had motivated them to continue their humanitarian activities, they also said it had taken a personal toll. One stated:

Between the police custody and the trial, I had the impression the police could just show up at my home at any time. It creates a bunch of tension to feel that they have the power to do that sort of thing. It keeps us on edge.[307]

Another said simply, “We are physically and morally exhausted.”[308]

Weak Legal Protections for Humanitarian Assistance

French law punishes facilitation of irregular entry, transit or stay in France with up to 5 years in prison and a 30,000 euro fine.[309] While the immigration code already contained a vague humanitarian exemption to facilitation of irregular stay, parliament amended the code following the Constitutional Council ruling to exempt assistance to the transit and stay of irregular migrants if no compensation was received and the assistance was offered with “an exclusively humanitarian objective.”[310] Assistance that helps someone enter French territory irregularly—for example, rescuing someone lost in the mountains and driving them into France—is not covered by the humanitarian exemption.[311]

European Union law gives member states wide discretion in how they implement common rules on combating people smuggling and other infractions of national immigration laws. The key legislation in this regard, the 2002 EU Facilitation Directive, says member states “may” choose to not sanction a person who intentionally assists another person to enter or transit irregularly its territory if the aim was to provide humanitarian assistance.[312] States are not obligated to ensure a humanitarian exemption, and the Facilitation Directive allows for prosecution even when there is no financial or material benefit.[313] Only seven member states explicitly exempt from prosecution facilitation of irregular entry and/or transit if done for humanitarian purposes.[314]

The UN Smuggling Protocol requires the criminalization of the smuggling of migrants only “when committed intentionally and in order to obtain, directly or indirectly, a financial or other material benefit.”[315]

Despite evidence of increasing criminalization of humanitarian activities and pressure from civil society organizations, in 2017 the European Commission declined to consider reforming the Facilitation Directive, concluding that the risks of prosecution for such activities are linked to problems with interpretation and implementation, rather than the legal text itself.[316] In 2018, the European Parliament urged the European Commission to adopt guidelines to “clarify those forms of facilitation that should not be criminalized” to, among other reasons, “limit unwarranted criminalisation.”[317] The European Union Agency for Fundamental Rights (FRA) has called for EU guidance that would “explicitly exclude punishment for humanitarian assistance at entry . . . as well as the provision of non-profit humanitarian assistance (e.g. food, shelter, medical care, legal advice) to migrants in an irregular situation.”[318]

The refusal by France and the European Union to adopt an unambiguous position that the provision of humanitarian assistance without financial or other benefit should not be considered a crime contributes to an environment where police feel empowered to harass aid workers, volunteers, and activists. Abusive identity checks, targeting volunteers and activists for minor vehicle infractions that in ordinary circumstances would receive no more than a warning, threatened or actual police custody for humanitarian activities, and criminal charges for those humanitarian activities violate the rights to liberty of person and to freedom of association and, in the case of police custody, amounts to arbitrary arrest.[319]

Acknowledgments

This report was written by Michael Garcia Bochenek, senior counsel on children’s rights at Human Rights Watch, based on research he undertook in the French Department of Hautes-Alpes from January to July 2019 with Helen Griffiths, fellow in the Children’s Rights Division; Bénédicte Jeannerod, France director; and Camille Marquis, senior advocacy coordinator. Sara Chollet and Loan Torondel, interns in the Paris office, analyzed case files and assisted with legal research; Elisabeth Dotter, an intern in the Paris office, also assisted with research.

Zama Neff, executive director of the Children’s Rights Division; Judith Sunderland, associate Europe and Central Asia director; Aisling Reidy, senior legal adviser; and Tom Porteous, deputy program director, edited the report. Joe Amon, director of global health and clinical professor of Community Health and Prevention at the Dornsife School of Public Health, Drexel University, reviewed the section on the consequences of trauma. Philippe Dam, Europe and Central Asia advocacy director; Corinne Dufka, West Africa director; Bill Frelick, refugee program director; Bénédicte Jeannerod; Camille Marquis; Hanan Salah, senior Libya researcher; and Jim Wormington, West Africa researcher, also reviewed the report. Fitzroy Hepkins, administrative manager, and José Martínez, senior coordinator, produced the report. Zoé Deback translated the report into French, and Camille Marquis reviewed the translation.

We appreciate the willingness of officials with the prefecture to meet with us to discuss our findings.

Human Rights Watch is particularly grateful to the nongovernmental organizations and individuals who generously assisted us in the course of this research, including the dedicated volunteers of the Refuge Briançon, the Réseau Hospitalité Gap, CHUM, and Tous Migrants and the nongovernmental organizations Amnesty International France, Anafé, Médecins du Monde, and MSF.

Finally, we would like to thank the children and young adults who were willing to share their experiences in the hope of improving the lives of unaccompanied children in the future.

Glossary

Administrateur ad hoc A temporary guardian

AME  State Medical Aid (Aide médicale d’État), health care for those with irregular migration status

ASE Service de l’aide sociale à l’enfance, the child welfare service in France

Carabinieri  Italy’s national gendarmerie, functioning both as a national police force and as military police

Césaï      Centre social auto-géré de l’Imprimerie, Gap

CESEDA  Code de l’entrée du séjour des étrangers et du droit d’asile, the French immigration and asylum law

Department  An administrative division of France. Gap is the prefecture, or capital, of the Hautes-Alpes department.

Departmental council  Conseil départemental, the governing body of a department, with responsibilities that include conducting age assessments of unaccompanied children and providing for their care and protection

Garde à vue  Police custody

Juge des enfants   Juvenile court judge, exercising oversight of children at risk

Juge de tutelle     Family court judge

Jugement supplétif  “Supplementary judgment,” a procedure that allows a judge to order issuance of delayed or replacement birth certificates, typically upon the production of witnesses who can attest to a child’s birth and parentage.

115 An emergency number that those who are homeless in France can use to find temporary shelter.

PAF    Police aux frontières, the French border police

Prefecture The town in which the administration of a department is located; also refers to the departmental administrative authority.

Refus d’entrée     Refusal of entry

Tiers digne de confiance  A trusted third party; in the case of unaccompanied migrant children, a family designated by the court to provide temporary care.

Zodiac A large inflatable boat equipped with a motor, often used to   cross the Mediterranean from Libya to Italy.

 

 

[1] Email from Camille Marquis, senior advocacy coordinator, Human Rights Watch, to Béatrice Longueville, director, Hautes-Alpes Directorate of Prevention Policy and Social Action, May 2, 2019; Email from Camille Marquis, senior advocacy coordinator, Human Rights Watch, to Béatrice Longueville, director, Hautes-Alpes Directorate of Prevention Policy and Social Action, May 7, 2019; Email from Camille Marquis, senior advocacy coordinator, Human Rights Watch, to Béatrice Longueville, director, Hautes-Alpes Directorate of Prevention Policy and Social Action, May 16, 2019; Letter from Bénédicte Jeannerod, France director, Human Rights Watch, to Beatrice Longueville, director, Hautes-Alpes Directorate of Prevention Policy and Social Action, May 29, 2019; Email from Camille Marquis, senior advocacy coordinator, Human Rights Watch, to Béatrice Longueville, director, Hautes-Alpes Directorate of Prevention Policy and Social Action, June 25, 2019.

[2] Email from Béatrice Longueville, director, Hautes-Alpes Directorate of Prevention Policy and Social Action, to Camille Marquis, senior advocacy coordinator, Human Rights Watch, May 2, 2019.

[3] Letter from Jérôme Scholly, director general of services, Hautes-Alpes Directorate of Prevention Policy and Social Action, to Bénédicte Jeannerod, France director, Human Rights Watch, June 24, 2019.

[4] Letter from Michael Bochenek, senior counsel, Children’s Rights Division, Human Rights Watch, to Prefect Michele di Bari, head of department, Department for Civil Liberties and Immigration, Ministry of the Interior, August 21, 2019.

[5] Email from Michela Lattarulo, central director of civil services for immigration and asylum, Ministry of the Interior, to Michael Garcia Bochenek, senior counsel, Children’s Rights Division, Human Rights Watch, September 3, 2019.

[6] Convention on the Rights of the Child, November 20, 1989, 1577 U.N.T.S. 3 (entered into force September 2, 1990), art. 1. France ratified the Convention on the Rights of the Child on August 7, 1990.

[7] UN Committee on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, U.N. Doc. CRC/GC/2005/6 (September 1, 2005), para. 7.

[8] Ibid., para. 8.

[9] UNICEF and IOM, Harrowing Journeys: Children and Youth on the Move Across the Mediterranean Sea, at Risk of Trafficking and Exploitation (New York and Geneva: UNICEF and IOM, 2017), pp. 6, 10.

[10] Human Rights Watch interview with Siaka A., Gap, France, January 25, 2019.

[11] Human Rights Watch interview with Louis M., Briançon, France, January 23, 2019.

[12] Human Rights Watch interview with volunteers, Briançon, France, January 22, 2019.

[13] Human Rights Watch interview with Emmanuel Effantin, Director of Services of the Cabinet of the Prefect, Gap, France, May 15, 2019. We heard the same from volunteers with the refugee shelter in Briançon. Human Rights Watch interview with volunteer, Refuge Solidaire, Briançon, France, January 22, 2019. Nationally, 67 percent of all recognized unaccompanied children were from these three countries of origin in 2018. Ministère de la Justice, Direction de la protection judiciaire de la jeunesse, Rapport annuel d’activité 2018 : Mission mineurs non accompagnés, June 2019, p. 7, http://www.justice.gouv.fr/art_pix/RAA-MMNA-2018.pdf (accessed August 8, 2019).

[14] See, for example, UNHCR, Guidelines on International Protection: Child Asylum Claims Under Articles 1(A)(2) and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, U.N. Doc. HCR/GIP/09/08 (December 22, 2009); Committee on the Rights of the Child, General Comment No. 6, para. 74, 27; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and Committee on the Rights of the Child, Joint General Comment No. 3 (Committee on the Rights of Migrant Workers) and No. 22 (Committee on the Rights of the Child) on the General Principles Regarding the Human Rights of Children in the Context of International Migration, U.N. Doc. CMW/G/GC/3-CRC/C/GC/22 (November 16, 2017), para. 46.

[15] For a discussion of practical barriers in access to asylum for unaccompanied children, see Human Rights Watch, “Like Living in Hell”: Police Abuses Against Child and Adult Migrants in Calais (New York: Human Rights Watch, July 2017), pp. 36-37.

[16] Human Rights Watch interview with Kebba S., Briançon, France, January 23, 2019.

[17] Human Rights Watch interview with Malick I., Briançon, France, February 16, 2019.

[18] Human Rights Watch interview with Louis M., Briançon, France, January 23, 2019.

[19] Human Rights Watch interview with Ramatoulaye M., Gap, France, May 13, 2019.

[20] Human Rights Watch interview with Yatma K., Gap, France, February 18, 2019.

[21] Human Rights Watch interview with Samuel A., Gap, France, January 23, 2019.

[22] Human Rights Watch interview with Boubacar Y., Briançon, France, February 14, 2019.

[23] Human Rights Watch interview with Ismael K., Briançon, France, January 22, 2019.

[24] For example, Human Rights Watch interview with Tahirou B., Veynes, France, May 15, 2019.

[25] Human Rights Watch interview with Malik R., Gap, France, March 15, 2019.

[26] Human Rights Watch interview with Fabrice M., Briançon, France, July 23, 2019.

[27] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[28] Human Rights Watch interview with Ousame A., Gap, France, May 14, 2019.

[29] Human Rights Watch interview with Adama M., Briançon, France, July 23, 2019.

[30] Human Rights Watch interview with Abdullah S., Gap, France, January 23, 2019.

[31] Human Rights Watch interview with Louis M., Briançon, France, January 23, 2019.

[32] Human Rights Watch interview Assane B., Gap, France, January 24, 2019.

[33] UNICEF & REACH, Children on the Move in Italy and Greece: Report (New York and Geneva: UNICEF and REACH, June 2017), p. 3. See also Women’s Refugee Commission, “More Than One Million Pains”: Sexual Violence Against Men and Boys on the Central Mediterranean Route to Italy (New York: Women’s Refugee Commission, March 2019), p. 11.

[34] Human Rights Watch interview with Aliou M., Briançon, France, January 25, 2019.

[35] Human Rights Watch interview with Siaka A., Gap, France, January 25, 2019.

[36] Human Rights Watch interview with Ismaila D., Gap, France, February 19, 2019.

[37] Huma Rights Watch interview with Musa G., Gap, France, May 16, 2019.

[38] Human Rights Watch interview with Fode A., Briançon, France, January 22, 2019.

[39] A child is trafficking if the child is recruited, transported, transferred, harbored, or received for the purpose of exploitation. Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, November 15, 2000, 2237 U.N.T.S. 319, art. 3(c).

[40] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[41] Ibid.

[42] Human Rights Watch interview with Kebba S., Briançon, France, January 23, 2019.

[43] Human Rights Watch interview with Anthony L., Gap, France, February 14, 2019.

[44] Human Rights Watch interview with Moses P., Briançon, France, January 22, 2019.

[45] Human Rights Watch interview with Gabriel F., Gap, France, January 24, 2019.

[46] Human Rights Watch interview with Sékou M., Gap, France, January 25, 2019.

[47] Human Rights Watch with Louis M., Briançon, France, January 23, 2019.

[48] Human Rights Watch interview with Oussenyou A., Briançon, France, February 13, 2019.

[49] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[50] Human Rights Watch interview with Siaka A., Gap, France, January 25, 2019.

[51] Human Rights Watch interview with Aliou M., Briançon, France, January 25, 2019.

[52] Human Rights Watch interview (name withheld), January 2019.

[53] Human Rights Watch interview with Ousmane A., Gap, France, May 14, 2019.

[54] Human Rights Watch interview with Ajuma L., Briançon, France, January 22, 2019.

[55] See Human Rights Watch, No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya (New York: Human Rights Watch, January 2019).

[56] Ibid.

[57] Claudio Longobardi, Tommaso Gabriele Veronesi, and Laura Elviro Prino, “Abuses, Resilience, Behavioural Problems and Post-Traumatic Stress Symptoms Among Unaccompanied Migrant Minors: An Italian Cross-Sectional Exploratory Study,” Psychiatria i Psychologia Kliniczna, vol. 17 (2017), pp. 87, 90, http://www.psychiatria.com.pl/index.php/wydawnictwa/2017-vol-17-no-2/abuses-resilience-behavioural-problems-and-post-traumatic-stress-symptoms-among-unaccompanied-migrant-minors-an-italian-cross-sectional-exploratory-study?aid=663 (accessed April 15, 2019).

[58] UNICEF, A Deadly Journey for Children: The Central Mediterranean Migration Route (New York: UNICEF, 2017), p. 5.

[59] Human Rights Watch interview with Ismaila D., Gap, France, February 15, 2019.

[60] Human Rights Watch interview with Tahirou B., Veynes, France, May 15, 2019.

[61] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[62] Human Rights Watch interview Ismaila, Gap, France, February 15, 2019.

[63] Human Rights Watch interview with Issa B., Briançon, France, February 14, 2019.

[64] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[65] Human Rights Watch interview with Sidiki A., Gap, France, February 15, 2019.

[66] Human Rights Watch interview with Sékou M., Gap, France, January 25, 2019.

[67] Human Rights Watch interview with Issa B., Briançon, France, February 14, 2019.

[68] Human Rights Watch interview with Ousseynou K., Briançon, France, February 13, 2019.

[69] Human Rights Watch interview with Amadin N., Gap, France, January 25, 2019.

[70] Human Rights Watch interview with Sékou M., Gap, France, January 25, 2019.

[71] Human Rights Watch interview with Fode A., Briançon, France, January 22, 2019.

[72] Human Rights Watch interview with Ajuma L., Briançon, France, January 22, 2019.

[73] Human Rights Watch interview with Mbaye T., Gap, France, January 24, 2019.

[74] Human Rights Watch interview with Louis M., Briançon, France, January 23, 2019.

[75] Human Rights Watch interview with Issa B., Briançon, France, February 14, 2019.

[76] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[77] For example, Human Rights Watch interview with Daouda G., Gap, France, February 18, 2019; Human Rights Watch interview with Amadin N., Gap, France, January 25, 2019; Human Rights Watch interview with Fode A., Briançon, France, January 22, 2019.

[78] For example, Human Rights Watch interview with Isaac T., Briançon, France, July 22, 2019; Human Rights Watch interview with Ismael K., Briançon, France, January 22, 2019.

[79] Human Rights Watch interview with Ousame A., Gap, France, May 14, 2019; Human Rights Watch interview with Habib F., Gap, France, March 15, 2019; Human Rights Watch interview with Amadin N., Gap, France, January 25, 2019; Human Rights Watch interview with Aliou M., Briançon, France, January 25, 2019; Human Rights Watch interview with Mbaye T., Gap, France, January 24, 2019; Human Rights Watch interview with Seydou D., Briançon, France, January 23, 2019.

[80] Sistema di protezione per titolare di protezione internazionale e per minori stranieri non accompagnati (SIPROIMI), I numeri dello Sprar/Siproimi,” January 2019, http://www.sprar.it/i-numeri-dello-sprar (accessed August 5, 2019).

[81] When reception facilities run by the System of Protection for Beneficiaries of Protection and Unaccompanied Minors (Sistema di protezione per titolari di protezione internazionale e minori stranieri non accompagnati, SIPROIMI) do not have sufficient capacity to accommodate all unaccompanied children, they may be housed at “first-line” reception centers maintained by the Ministry of the Interior, in principle for no more than 30 days but often in practice for much longer periods. If these “first-line” reception centers are also at capacity, unaccompanied children are held in temporary facilities established by local authorities. European Council on Refugees and Exiles (ECRE), Country Report: Italy, Asylum Information Database (Brussels: ECRE, 2019), p. 110; Human Rights Watch interview with Elena Rozzi, ASGI, Turin, Italy, February 15, 2019.

[82] ECRE, Country Report: Italy, pp. 96, 111. See also, for example, Autorità garante per l’infanzia e l’adolescenza, I movimenti dei minori stranieri non accompagnati alle frontiere settentrionali (Rome: Autorità garante per l’infanzia e l’adolescenza, 2019) (finding that unaccompanied children in reception center for adults in Ventimiglia may share rooms with unrelated adults and are not registered with the health service); LasciateCIEntrare, “Migranti: Report della visita della delegazione della campagna LasciateCIEntrare al Centro di Accoglienza per Richiedenti Asilo ‘Sant’Anna,’” October 28, 2018 (observing that a facility for adult asylum seekers in the province of Crotone, in southern Italy, held “numerous” unaccompanied children), https://www.lasciatecientrare.it/migranti-report-della-visita-della-delegazione-della-campagna-lasciatecientrare-al-centro-di-accoglienza-per-richiedenti-asilo-santanna/ (accessed August 5, 2019).

[83] ECRE, Country Report: Italy, p. 103, 104-106, 110-13; Human Rights Watch interview with Elena Rozzi, ASGI, Turin, Italy, February 15, 2019.

[84] InterSOS, L’isola dei minori: l’accoglienza dei minori non accompagnati in Sicilia (Rome: InterSOS, 2019), p. 20.

[85] European Asylum Support Office (EASO), EASO Guidance on Reception Conditions for Unaccompanied Children: Operational Standards and Indicators, EASO Practical Guides Series, December 2018.

[86] European Commission, Communication from the Commission to the European Parliament and the Council, COM(2017) 211 final (April 12, 2017), p.12, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/20170412_communication_on_the_protection_of_children_in_migration_en.pdf (accessed August 26, 2019).

[87] Legge No. 47, Disposizioni in materia di misure di protezione dei minori stranieri non accompagnati (April 7, 2017), in Gazzetta Ufficiale della República Italiana, serie generale, No. 93 (April 21, 2017) (Italy), p. 1, http://www.gazzettaufficiale.it/eli/gu/2017/04/21/93/sg/pdf (accessed January 13, 2019).

[88] See, for example, Save the Children, “Minori stranieri non accompagnati, le Associazione: ‘Finalmente una legge per proteggerli,’” March 29, 2017, https://www.savethechildren.it/press/minori-stranieri-non-accompagnati-le-associazioni-%E2%80%9Cfinalmente-una-legge-proteggerli%E2%80%9D (accessed January 13, 2019); UNICEF, “UNICEF Hails New Italian Law to Protect Unaccompanied Refugee and Migrant Children as Model for Europe,” March 29, 2017, https://www.unicef.org/media/media_95485.html (accessed January 13, 2019).

[89] See Associazione per gli Studi Giuridici sull’Immigrazione, “Norme chiare sull’accertamento dell’età dei minori stranieri non accompagnati, ” January 23, 2017, https://www.asgi.it/asilo-e-protezione-internazionale/minori_accertamento_eta_regolamento/ (accessed January 12, 2019); Elena Rozzi, “The New Italian Law on Unaccompanied Minors: A Model for the EU?,” EU Immigration and Asylum Law and Policy, November 13, 2017, http://eumigrationlawblog.eu/the-new-italian-law-on-unaccompanied-minors-a-model-for-the-eu/ (accessed January 12, 2019).

[90] Associazione per gli Studi Giuridici sull’Immigrazione, “Se questa è Europa” (“In Italia, invece, permangono gravi disfunzioni nella tutela dei diritti dei minori all’interno dei centri di accoglienza: molti non vengono iscritti a scuola, come prevede la legge, o non ricevono informazioni sulle possibilità di richiedere asilo o ricongiungersi legalmente con la propria famiglia in altri paesi europei.”).

[91] See Oxfam, “Children Alone: Pulled from the Sea, Fallen by the Wayside,” September 8, 2016, https://www.oxfam.org/sites/www.oxfam.org/files/file_attachments/children_alone_-_pulled_from_the_sea_fallen_by_the_wayside.pdf (accessed January 13, 2019). See also Human Rights Watch, “Italy : Children Stuck in Unsafe Migrant Hotspot,” June 23, 2016, https://www.hrw.org/news/2016/06/23/italy-children-stuck-unsafe-migrant-hotspot.

[92] See Darboe et Camara contre l’Italie, Requête No. 5797/17 (Eur. Ct. H.R. submitted January 18, 2017); Associazione per gli Studi Giuridici sull’Immigrazione, “Cona(VE): minorenni nel centro di accoglienza,” January 15, 2017 (unaccompanied children housed with adults in overcrowded emergency reception center in Cona, near Venice, in unsanitary conditions and without adequate heat).

[93] Decreto-Legge 4 ottobre 2018, n. 113, in Gazetta Ufficiale n. 281 (December 3, 2018) (Italy). See Associazione per gli Studi Giuridici sull’Immigrazione, “Decreto Immigrazione e Sicurezza, una scheda per operatori a cura dell’ASGI,” November 6, 2018, https://www.asgi.it/asilo-e-protezione-internazionale/sicurezza-immigrazione-decreto-scheda-operatori/ (accessed July 21, 2019); Angela Giuffrida, “Italian Government Approves Salvini Bill Targeting Immigrants,” Guardian, September 24, 2018, https://www.theguardian.com/world/2018/sep/24/italian-government-approves-bill-anti-migrant-measures-matteo-salvini (accessed August 5, 2019); Judith Sunderland (Human Rights Watch), “New Low for Italian Migration Policies,” September 26, 2018, https://www.hrw.org/news/2018/09/26/new-low-italian-migration-policies.

[94] See Camera dei deputati, Servizio Studi, “Minori stranieri non accompagnati,” July 19, 2019, p. 3, https://www.camera.it/temiap/documentazione/temi/pdf/1104665.pdf (accessed August 5, 2019).

[95] Ministero dell’Interno, Dipartamento per le libertà civile e l’immigrazione, Struttura di missione per l’accoglienza dei minori stranieri non accompagnati, “Accolienza dei minori stranieri non accompagnati in Italia,” n.d., pp. 2-3, attached to email from Michela Lattarulo, central director of civil services for immigration and asylum, Ministry of the Interior, to Michael Garcia Bochenek, senior counsel, Children’s Rights Division, Human Rights Watch, September 3, 2019.

[96] Human Rights Watch interview with volunteer, Tous Migrants, Oulx, Italy, January 23, 2019.

[97] Human Rights Watch interview with Jérôme Boni, director, Hautes-Alpes and Alpes de Haute-Provence Border Police, Gap, France, May 15, 2019.

[98] Refus d’entrée (Montgenèvre, October 13, 2018, 10 :00 a.m.) (on file with Human Rights Watch); Refus d’entrée (Montgenèvre, October 13, 2018, 10 :25 a.m.) (on file with Human Rights Watch).

[99] Anafé, Persona non grata : conséquences des politiques sécuritaires et migratoires à la frontière franco-italienne (Paris: Anafé, January 2019, p. 65. See also ibid., p. 140 (photo of a refus d’entrée issued April 27, 2018, in Montgenèvre, stating that the individual has an “adult appearance” [“apparence majeur”]).

[100] Human Rights Watch interview with Emmanuel Effantin, Director of Services of the Cabinet of the Prefect, Gap, France, May 15, 2019.

[101] Human Rights Watch interview with Jérôme Boni, director, Hautes-Alpes and Alpes de Haute-Provence Border Police, Gap, France, May 15, 2019.

[102] Code de l’entrée et du séjour des étrangers et du droit d’asile, art. L.213-2. For a fuller discussion of this process and the procedural protections required by law, see “Protections Against Summary Returns” section, below.

[103] Human Rights Watch interview with Jérôme Boni, director, Hautes-Alpes and Alpes de Haute-Provence Border Police, Gap, France, May 15, 2019.

[104] See “Protection Against Summary Returns” section, below.

[105] Human Rights Watch interview with Amadin N., Gap, France, January 25, 2019.

[106] Human Rights Watch interview with Ibrahim F., Gap, France, March 15, 2019.

[107] Human Rights Watch interview with Ismaila D., Gap, France, February 15, 2019.

[108] Human Rights Watch interview with Issa B., Briançon, France, February 14, 2019.

[109] Human Rights Watch interview with Kebba S., Briançon, France, January 23, 2019.

[110] Human Rights Watch interview with Mbaye T., Gap, France, January 24, 2019.

[111] Human Rights Watch interview with Sayo A., Gap, France, May 13, 2019.

[112] Human Rights Watch interview with Malick I., Briançon, France, February 16, 2019.

[113] Human Rights Watch interview with Ramatoulaye M., Gap, France, May 13, 2019.

[114] Human Rights Watch interview with Habib F., Gap, France, March 15, 2019; Human Rights Watch interview with Fakkeba S., Gap, France, May 13, 2019.

[115] Human Rights Watch interview with Amadin N., Gap, France, January 25, 2019; Human Rights Watch interview Malick I., Briançon, France, February 16, 2019; Human Rights Watch interview with Habib F., Gap, France, March 15, 2019.

[116] Human Rights Watch interview with Joshua F., Gap, France, January 24, 2019.

[117] Anafé, “Frontière franco-italienne : À Briançon, les violations systématiques des droits des personnes exilées doivent cesser,” October 13, 2018, http://www.anafe.org/spip.php?article497 (accessed June 14, 2019). The 13 organizations were Amnesty International France, Anafé, La Cimade, Médecins du Monde, Médecins sans frontières, Secours Catholique Caritas France, Chemins pluriels, Emmaüs France, GISTI, ASGI, Icare 05, Refuges Solidaires, and Tous Migrants.

[118] Human Rights Watch interview with Agnès Vibert Guigue, lawyer, Gap, France, May 16, 2019.

[119] See Florence Renard-Gourdon, “Le traitement des mineurs isolés étrangers à Menton pointé du doigt,” Les Echos, November 22, 2018, https://www.lesechos.fr/pme-regions/provence-alpes-cote-dazur/le-traitement-des-mineurs-isoles-etrangers-a-menton-pointe-du-doigt-149585 (accessed August 4, 2019); Mathilde Mathieu, “À la frontière italienne, la police prive des migrants mineurs de leurs droits,” Mediapart, June 5, 2018, https://www.mediapart.fr/journal/france/050618/la-frontiere-italienne-la-police-prive-des-migrants-mineurs-de-leurs-droits?onglet=full (accessed August 4, 2019) ; Angela Giuffrida, “French Police Accused of Falsifying Migrant Children’s Birth Dates,” Guardian, April 12, 2018, https://www.theguardian.com/world/2018/apr/12/french-police-accused-of-falsifying-migrant-childrens-birth-dates (accessed August 4, 2019).

[120] Human Rights Watch interview with volunteer, Briançon, France, January 29, 2019.

[121] Human Rights Watch interview with Issa B., Briançon, France, February 14, 2019.

[122] Human Rights Watch interview with Eva L., Gap, France, July 24, 2019.

[123] The rationale for maintaining immigration controls at land borders has shifted slightly with each renewal, beginning with the Paris attacks (immigration controls from December 14, 2015, to May 26, 2016) and subsequently justified by EURO 2016 and the Tour de France (May 27, 2016, to July 26, 2016), the Nice attack (July 26, 2016, to January 26, 2017), “persistent terrorist threat” (January 27, 2017, to July 15, 2017; November 1, 2017, to April 30, 2018; April 30, 2018, to October 30, 2018), “terrorist threats, situation at the external borders, upcoming high level political meetings” (November 1, 2018, to April 30, 2019), and most recently “terrorist threats, situation at the external borders” (May 1, 2019, to October 31, 2019). Member States’ Notifications of Temporary Reintroduction of Border Controls at Internal Borders Pursuant to Article 25 et seq. of the Schengen Borders Code, n.d., https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/borders-and-visas/schengen/reintroduction-border-control/docs/ms_notifications_-_reintroduction_of_border_control_en.pdf (accessed June 10, 2019).

[124] Code de procédure penal, art. 78-2. These checks should be limited to no more than 12 consecutive hours in the same place and “may not consist of systematic controls.” Ibid.

[125] Code civil, art. 388. See also Tribunal Administratif [TA] [administrative tribunal] Nice, No. 1800699 (February 23, 2018).

[126] Code de l’entrée et du séjour des étrangers et du droit d’asile, art. L.213-3-1.

[127] Ibid., arts. L.213-2 and R.213-1.

[128] Ibid., arts. L.213-2 and L.111-7.

[129] Ibid., art. L221-5. Children who are refused entry at a place other than a land border (at an airport, a marine port, or a train station outside of the 10 km border zone) receive the additional procedural protection of a jour franc, a mandatory one-day delay before their return to allow time for legal assistance and the appointment of a guardian. Adults who are refused entry at these places may choose to delay their return by one day. Amendments to the immigration and asylum law that took effect in September 2018 remove this protection for refusals of entry at land borders (as well as for those issued in the overseas department of Mayotte). Loi n° 2018-778 du 10 septembre 2018 pour une immigration maîtrisée, un droit d'asile effectif et une intégration réussie, art. 18, Journal Officiel de la République Française [J.O.] [Official Gazette of France], n° 0209, September 11, 2018, texte n° 1.

[130] Code de l’entrée et du séjour des étrangers et du droit d’asile, art. L. 213-2. French law also provides, “The interest of the child, attention to his fundamental, physical, intellectual, social, and emotional needs, as well as the respect of his rights, must guide all decisions concerning him.” Code de l’action sociale et des familles, art. L.112-4. 

[131] Code de l’entrée et du séjour des étrangers et du droit d’asile, arts. L.521-4 and L.511-4(1).

[132] Code de l’action sociale et des familles, art. 112-3. See also Code pénal, art. 434-3.

[133] Human Rights Watch interview with Jérôme Boni, director, Hautes-Alpes and Alpes de Haute-Provence Border Police, Gap, France, May 15, 2019.

[134] Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on Common Procedures for Granting and Withdrawing International Protection (Recast) [Asylum Procedures Directive (Recast)], OJ L 180/60 (June 29, 2013), arts. 6-8; Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 [Dublin III Regulation], OJ L 180/31 (June 29, 2013), art. 8. See also Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (Recast), OJ L 180/96 June 29, 2013), art. 24.

[135] Asylum Procedures Directive (Recast), art. 8.

[136] Dublin III Regulation, art. 8.

[137] Commission Nationale Consultative des Droits de l’Homme, Avis sur la situation des personnes migrantes à la frontière franco-italienne (Paris: CNCDH, June 2018), pp. 34-35.

[138] Contrôleur général des lieux de privation de liberté, Rapport de visite des locaux de la police aux frontières de Menton (Alpes-Maritimes) – 2eme visite (Paris: Contrôleur général des lieux de privation de liberté, 2017), p. 25.

[139] Défenseur des droits, Décision du Défenseur des droits n° 2018-100, April 25, 2018, p. 2.

[140] Arrêté du 17 novembre 2016 pris en application du décret n° 2016-840 du 24 juin 2016 relatif aux modalités de l'évaluation des mineurs privés temporairement ou définitivement de la protection de leur famille [Order of November 17, 2016, Issued Pursuant to Decree No. 2016-840 of 24 June 2016 on the Modalities for the Evaluation of Minors Temporarily or Permanently Deprived of the Protection of Their Family], art. 9, J.O. n° 0269, November 19, 2016, texte n° 25.

[141] For a fuller discussion of these immediate and long-term services and benefits, see “The Consequences of Incorrect Age Assessments” section, below.

[142] Arrêté [Order] du 17 novembre 2016, arts. 2, 4, 9.

[143] Ibid., art. 3.

[144] Committee on the Rights of the Child, General Comment No. 6, para. 31(i). See also Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and Committee on the Rights of the Child, Joint General Comment No. 4 (Committee on Migrant Workers) and No. 23 (Committee on the Rights of the Child): State Obligations Regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return, U.N. Doc. CMW/C/GC/4-CRC/C/GC/23 (November 16, 2017), para. 4.

[145] Letter from Jérôme Scholly, director general of services, Hautes-Alpes Directorate of Prevention Policy and Social Action, to Bénédicte Jeannerod, France director, Human Rights Watch, June 24, 2019.

[146] See generally InfoMIE, “Articulation dispositif national de mise à l’abri, d’évaluation et d’orientation des mineurs isolés étrangers et droit comun de la protection de l’enfance,” n.d., http://www.infomie.net/IMG/pdf/schema_dispositif_national_23092013.pdf (accessed June 10, 2019).

[147] Human Rights Watch interview with Emmanuel Effantin, Director of Services of the Cabinet of the Prefect, Gap, France, May 15, 2019.

[148] Letter from Jérôme Scholly, director general of services, Hautes-Alpes Directorate of Prevention Policy and Social Action, to Bénédicte Jeannerod, France director, Human Rights Watch, June 24, 2019, p. 1.

[149] Ministère de la Justice, Direction de la protection judiciaire de la jeunesse, Rapport annuel d’activité 2018: Mission mineurs non accompagnés, June 2019, pp. 11-14, http://www.justice.gouv.fr/art_pix/RAA-MMNA-2018.pdf (accessed August 8, 2019).

[150] See Code de l’action sociale et des familles, art. L.226-2-1; art. R.221-11. See also InfoMIE, “Dispositifs spécifiques aux mineurs isolés étrangers,” October 22, 2016, http://www.infomie.net/spip.php?rubrique272&lang=fr (accessed June 10, 2019).

[151] Letter from Jérôme Scholly, director general of services, Hautes-Alpes Directorate of Prevention Policy and Social Action, to Bénédicte Jeannerod, France director, Human Rights Watch, June 24, 2019.

[152] Arrêté [Order] du 17 novembre 2016, art. 9.

[153] Children and lawyers showed us identical form letters that gave the following reason for negative age assessments: “Following the assessment of your situation made by the Childhood and Family Service of the Department of the Hautes-Alpes, I inform you that after reviewing your file, it is not possible to establish that you qualify for the protection of the Unaccompanied Minors Unit. Indeed, the elements gathered at the end of the evaluation process, in particular the life history, the conditions of departure, and the migratory route, do not make it possible to find in favor of your minority.”

[154] Human Rights Watch interview with Réseau Hospitalité, Gap, May 15, 2019; Human Rights Watch interview with lawyers, Gap, July 23, 2019.

[155] Code civil, art. 375-1. See generally AutonoMIE and InfoMIE, “Saisir le/la juge des enfants,” August 5, 2014, http://www.infomie.net/IMG/pdf/autonomie-guide-fiche2.pdf (accessed June 10, 2019).

[156] See Guardianship Order (Gap Family Court April 11, 2019); Guardianship Order (Gap Family Court November 23, 2018).

[157] See Human Rights Watch, “Like a Lottery”: Arbitrary Treatment of Unaccompanied Migrant Children in Paris (New York: Human Rights Watch, July 2018), pp. 17-31.

[158] Human Rights Watch interview with Gabriel F., Gap, France, January 24, 2019.

[159] Human Rights Watch interview with Sidiki A., Gap, France, February 15, 2019.

[160] Human Rights Watch interview with Ismaila D., Gap, France, February 19, 2019.

[161] Human Rights Watch interview with lawyers, Gap, France, May 16, 2019.

[162] Human Rights Watch interview (name withheld), January 2019.

[163] Human Rights Watch interview with Eva L., Gap, France, July 24, 2019.

[164] Human Rights Watch interview with Kojo D., Gap, France, February 14, 2019.

[165] Human Rights Watch interview with Ousmane A., Gap, France, May 14, 2019.

[166] See, for example, Immigration and Refugee Board of Canada, “Mali: Requirements and Procedures to Obtain a National Identity Card, a Birth Certificate and a Certificate of Nationality,” section 2.2; Immigration and Refugee Board of Canada, “Guinea: Requirements and Procedure to Obtain a Birth Certificate Extract, Including from Abroad; Information Indicated on the Document; Incorrect or Fraudulent Birth Certificate Extracts (2009-September 2016), section 3.1, http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=5821dfba4 (accessed April 6, 2018); Mirna Adjami, Statelessness and Nationality in Côte d’Ivoire: A Study for UNHCR (Geneva: UNHCR, December 2016), p. 35.

[167] Human Rights Watch interview with Ousmane A., Gap, France, May 14, 2019.

[168] Arrêté du 17 novembre 2016, art. 3.

[169] See Committee on the Rights of the Child, General Comment No. 6, para. 31(i); Joint General Comment No. 4 (Committee on Migrant Workers and Members of Their Families) and No. 23 (Committee on the Rights of the Child), para. 4.

[170] Letter from Jérôme Scholly, director general of services, to Bénédicte Jeannerod, France director, Human Rights Watch, June 24, 2019, p. 2.

[171] See, for example, Evaluation Report, March 20, 2019, p. 2; Evaluation Report, March 7, 2019 (Senegalese boy); Evaluation Report, March 7, 2019 (Gambian boy); Evaluation Report, November 6, 2018, p. 3; Evaluation Report, October 23, 2018, p. 2; Evaluation Report, February 16, 2018, p. 3; Evaluation Report, December 15, 2017, pp. 3-4.

[172] Evaluation Report, May 3, 2018, p. 4; Evaluation Report, February 15, 2018, p. 4; Evaluation Report, December 15, 2017, p. 5. In other cases, even when children name the major towns on their journey and describe the vehicles in which they travelled, examiners find that their accounts lack sufficient detail. See, for example, Evaluation Report, October 29, 2018, pp. 3-4 (describing bus journey to Agadez followed by a ride in a pickup truck to Tripoli).

[173] Evaluation Report, February 16, 2018, p. 4; Evaluation Report, December 15, 2017, p. 5.

[174] Evaluation Report, February 15, 2018, p. 4; Evaluation Report, December 4, 2017, p. 3.

[175] Evaluation Report, December 4, 2017, p. 3.

[176] Evaluation Report, October 26, 2017, p. 2.

[177] Evaluation Report, September 14, 2018, p. 2.

[178] Evaluation Report, June 18, 2018, p. 4.

[179] See, for example, Evaluation Report, June 14, 2019, p. 4; Evaluation Report, March 27, 2019; Evaluation Report, November 12, 2018, p. 4; Evaluation Report, October 23, 2018, p. 3.

[180] Evaluation Report, June 4, 2019.

[181] Evaluation Report, March 27, 2019, p. 2. See also Evaluation Report, February 15, 2018. In the case of another Guinean boy, school entry at the age of six was judged “late,” calling his account into doubt, Evaluation Report, November 12, 2018, p. 3, even though other evaluation reports state that “children [in Guinea] begin schooling around the age of six,” Evaluation Report, February 15, 2018.

[182] Evaluations Report, March 27, 2019, p. 4.

[183] Ibid.

[184] Ibid.

[185] Ibid. The evaluation report for a Gambian boy cites the same factor in support of a negative age assessment. Evaluation Report, March 7, 2019, p. 4.

[186] See, for example, Evaluation Report, October 23, 2018, p. 2; Evaluation Report, June 18, 2018, p. 3; Evaluation Report, May 3, 2018, p. 2; Evaluation Report, February 16, 2018, p. 2.

[187] Evaluation Report, October 29, 2018, p. 4.

[188] Evaluation Report, October 23, 2018, p. 5. See also Evaluation Report, September 14, 2018, p. 4.

[189] Evaluation Report, September 20, 2018, p. 3. See also Evaluation Report, September 14, 2018, p. 4.  

[190] Evaluation Report, March 7, 2019, p. 3.

[191] Evaluation Report, March 7, 2019, p. 3.

[192] Evaluation Report, October 29, 2018, p. 2.

[193] Evaluation report, December 4, 2017, p. 3.

[194] Evaluation Report, September 15, 2017, p. 4.

[195] Evaluation Report, June 18, 2018, p. 4.

[196] Evaluation Report, October 26, 2017, p. 3.

[197] Evaluation Report, October 29, 2018, p. 4.

[198] See “Neglect and Abuse in Italy” section, above.

[199] Evaluation Report, September 14, 2018, p. 2.

[200] See, for example, Evaluation Report, December 4, 2017, p. 4.

[201] See, for example, ibid.

[202] Evaluation Report, March 20, 2019, p. 4.

[203] Evaluation Report, October 23, 2018, p. 5.

[204] Evaluation Report, March 20, 2019, p. 4.

[205] Evaluation Report, August 14, 2018, p. 2.

[206] Ibid.

[207] Evaluation Report, October 31, 2018. See also Evaluation Report, March 5, 2019, p. 3.

[208] Evaluation Report, November 12, 2018, p. 4.

[209] Ibid.; Evaluation Report, September 20, 2018, p. 4.

[210] Evaluation Report, August 13, 2018, p. 3; Evaluation Report, June 22, 2018, p.3.

[211] Evaluation Report, August 13, 2018, p. 5.

[212] Human Rights Watch interview with lawyers, Gap, France, May 16, 2019.

[213] Human Rights Watch interview with Yassine Djermoune, lawyer, Gap, France, July 23, 2019.

[214] Ibid.

[215] Human Rights Watch interview with Réseau Hospitalité, Gap, France, January 24, 2019; Human Rights Watch interview with Réseau Hospitalité, Gap, France, March 15, 2019.

[216] Unaccompanied children in the Hautes-Alpes are not necessarily seeking asylum in France (in part because entry into the child protection system after formal recognition as a child can provide a basis for regular immigration status upon adulthood), but they arrive in France with many of the same kinds of experiences and mental health outcomes as have been seen in asylum-seeking unaccompanied children elsewhere. See, for example, Marianne Jakobsen, Melinda A.M. Demott, and Trond Heir, “Prevalence of Psychiatric Disorders Among Unaccompanied Asylum-Seeking Adolescents in Norway,” Clinical Practice and Epidemiology in Mental Health, vol. 10 (2014), pp. 53-58.

[217] These outcomes for adults with PTSD are well-documented. See, for example, Kristin W. Samuelson, “Post-traumatic Stress Disorder and Declarative Memory Functioning: A Review,” Dialogues in Clinical Neuroscience, vol. 13 (2011), pp. 346-51. For studies of children, including adolescents, with PTSD, see R. Schoeman, P. Carey, and S. Seedat, “Trauma and Posttraumatic Stress Disorder in South African Adolescents: A Case-Control Study of Cognitive Deficits,” Journal of Nervous and Mental Disease, vol. 197 (2009), pp. 244-50; A.E. Yasik, P.A. Saigh, R.A. Oberfield, and P.V. Halamandaris, “Posttraumatic Stress Disorder: Memory and Learning Performance in Children and Adolescents,” Biological Psychiatry, vol. 61 (2007), pp. 382-88; A.R. Moradi, H.T. Doost, M.R. Taghavi, W. Yule, and T. Dalgleish, “Everyday Memory Deficits in Children and Adolescents with PTSD: Performance on the Rivermead Behavioural Memory Test,” Journal of Child Psychology and Psychiatry, vol. 40 (1999), pp. 357-61.

[218] Human Rights Watch interview with Dr. Françoise Martin-Cola, Réseau Hospitalité, Gap, France, May 15, 2019.

[219] See Office of the UN High Commissioner on Human Rights, “Trauma and Self-Care,” in Manual on Human Rights Monitoring (New York and Geneva: United Nations, 2011), https://www.ohchr.org/Documents/Publications/Chapter12-MHRM.pdf (accessed July 2, 2019).

[220] Human Rights Watch interview with Amadin N., Gap, France, July 24, 2019.

[221] Human Rights Watch interviews, Réseau Hospitalité, Gap, France, July 24, 2019; Human Rights Watch telephone interview with Gabriel F., Gap, France, July 24, 2019.

[222] Human Rights Watch interview with Yassine Djermoune, lawyer, Gap, France, July 23, 2019.

[223] Human Rights Watch interviews with lawyers, Gap, France, May 16, 2019; Human Rights Watch interviews with Réseau Hospitalité, Gap, France, May 15 and July 24, 2019.

[224] Judgment on Educational Assistance (Gap Juvenile Court, November 12, 2018), p. 2.

[225] Ibid.

[226] Judgment on Educational Assistance (Gap Juvenile Court March 11, 2019), p. 2.

[227] Ibid.

[228] See, for example, Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019) (Ivoirian boy), p. 2-3; Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019) (Guinean boy), p. 3; Judgment on Educational Assistance (Gap Juvenile Court March 18, 2019) at 2; Judgment on Educational Assistance (Gap Juvenile Court March 11, 2019), p. 2; Judgment on Educational Assistance (Gap Juvenile Court February 18, 2019), p. 2.

[229] Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019) (Guinean boy); Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019) (Ivoirian boy); Judgment on Educational Assistance (Gap Juvenile Court March 18, 2019); Judgment on Educational Assistance (Gap Juvenile Court March 11, 2019); Judgment on Educational Assistance (Gap Juvenile Court February 18, 2019); Judgment on Educational Assistance (Gap Juvenile Court November 12, 2018); Judgment on Educational Assistance (Gap Juvenile Court November 5, 2018); Judgment on Educational Assistance (Gap Juvenile Court October 5, 2018); Judgment on Educational Assistance (Gap Juvenile Court April 9, 2018).

[230] Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019); Judgment on Educational Assistance (Gap Juvenile Court March 18, 2019); Judgment on Educational Assistance (Gap Juvenile Court February 26, 2019); Judgment on Educational Assistance (Gap Juvenile Court February 18, 2019); Judgment on Educational Assistance (Gap Juvenile Court November 5, 2018).

[231] Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019) (Guinean boy); Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019 (Ivoirian boy); Judgment on Educational Assistance (Gap Juvenile Court March 18, 2019); Judgment on Educational Assistance (Gap Juvenile Court March 11, 2109); Judgment on Educational Assistance (Gap Juvenile Court November 5, 2018).

[232] See Judgment on Educational Assistance (Gap Juvenile Court March 25, 2019) (Guinean boy) at 2.

[233] Human Rights Watch interview with lawyers, Gap, France, May 16, 2019.

[234] Human Rights Watch interview with Eva L., Gap, France, July 24, 2019.

[235] See Guardianship Order (Gap Family Court April 11, 2019); Guardianship Order (Gap Family Court November 23, 2018).

[236] Code de l’éducation, art. L.111-1; Ministère de l’Éducation nationale, Circulaire n° 2012-141, section 1.2 (October 2, 2012).

[237] See Direction des affaires juridiques et Direction des patients, des usagers et des associations, Hôpitaux de Paris, Accueil et accompagnement des mineurs non accompagnés: points de repères juridiques et recommandations (Paris: Hôpitaux de Paris, 2018).

[238] Human Rights Watch interviews, Réseau Hospitalité, January 24, May 15, and July 24, 2019.

[239] Code de l’entrée et du séjour des étrangers et du droit d’asile, art. L.311-1.

[240] Décret n° 2019-57 du 30 janvier 2019 relatif aux modalités d'évaluation des personnes se déclarant mineures et privées temporairement ou définitivement de la protection de leur famille et autorisant la création d'un traitement de données à caractère personnel relatif à ces personnes [Decree No. 2019-57 of January 30, 2019, on the Evaluation of Persons Declaring Themselves to Be Minors and Temporarily or Permanently Deprived of the Protection of Their Family and Authorizing the Creation of a Database of Personal Data Relating to These Persons], J.O. n° 0026, January 31, 2019, texte n° 37. See also “Le fichier biométrique des ‘mineurs isolés’ déclaré conforme à la Constitution,” Le Monde, July 26, 2019, https://www.lemonde.fr/societe/article/2019/07/26/le-fichier-biometrique-des-mineurs-isoles-declare-conforme-a-la-constitution_5493648_3224.html (accessed August 25, 2019). The French Defender of Rights has called for the decree’s repeal. Défenseur des droits, “Le Défenseur des droits demande l’abandon du projet de décret relatif à la mise en œuvre du fichier national biométrique des mineurs non accompagnés,” December 13, 2018, https://www.defenseurdesdroits.fr/fr/communique-de-presse/2018/12/le-defenseur-des-droits-demande-labandon-du-projet-de-decret-relatif-a (accessed August 27, 2019).

[241] Code civil, art. 21-12.

[242] Code de l’entrée et du séjour des étrangers et du droit d’asile, art. L.313-11(2bis).

[243] Ibid., art. L.313-15.

[244] See International Covenant on Civil and Political Rights, art. 14(1), December 19, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976).

[245] See A.L. v. Spain, Views, Communication No. 16/2017, U.N. Doc. CRC/C/81/D/16/2017 (July 10, 2019), para. 12.10 (noting that “a child’s age and date of birth form part of his or her identity” and finding that Spanish authorities failed to respect the identity of a child by denying that his birth certificate had any probative value); J.A.B. c. España, Dictamen, Comunicación núm. 22/2017, U.N. Doc. CRC/C/81/D/22/2017 (July 9, 2019), para. 13.10 (same). See also European Asylum Support Office (EASO), EASO Practical Guide on Age Assessment, 2d ed., EASO Practical Guides Series (Brussels: EU Publications Office, 2018), p. 16 (“age is an innate characteristic of one’s identity”).

[246] Committee on the Rights of the Child, General Comment No. 6, para. 31.

[247] See ibid., para. 31(i); EASO, EASO Practical Guide on Age Assessment, 2d ed., p. 23; UNHCR, Guidelines on International Protection: Child Asylum Claims, para. 75; UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, February 1997, para. 5.11; UNHCR, Observations on the Use of Age Assessments in the Identification of Separated or Unaccompanied Children Seeking Asylum, Case No. CIK-1938/2014 (Lithuanian Supreme Court), June 1, 2015, para. 9(ix).

[248] Joint General Comment No. 4 (Committee on the Rights of Migrant Workers) and No. 23 (Committee on the Rights of the Child), para. 4.

[249] Committee on the Rights of the Child, General Comment No. 6, para. 31(i). See also Joint General Comment No. 4 (Committee on the Rights of Migrant Workers) and No. 23 (Committee on the Rights of the Child), para. 4.

[250] UNHCR, Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum, para. 5.11(c).

[251] Heaven Crawley, When Is a Child Not a Child? Asylum, Age Disputes and the Process of Age Assessment (London: Immigration Law Practitioners’ Association, 2007), p. 192. She cautions, “Those responsible for the assessment process need to be conscious of the fact that it is abusive for one child to see too many people for a formal assessment interview. However it is perfectly acceptable for those responsible for assessments to take into account the views of other professionals who are in contact with the child for other reasons.” Ibid.

[252] EASO, EASO Practical Guide on Age Assessment, 2d ed., p. 50.

[253] Joint General Comment No. 4 (Committee on the Rights of Migrant Workers) and No. 23 (Committee on the Rights of the Child), para. 17(f); UNHCR, Guidelines on International Protection: Child Asylum Claims, para. 69.

[254] See Committee on the Rights of the Child, General Comment No. 6, para. 25; Joint General Comment No. 3 (Committee on the Rights of Migrant Workers) and No. 22 (Committee on the Rights of the Child), para. 36; Joint General Comment No. 4 (Committee on the Rights of Migrant Workers) and No. 23 (Committee on the Rights of the Child), para. 17(d).

[255] UNHCR, Guidelines on International Protection: Child Asylum Claims, para. 72.

[256] UNHCR, Observations on the Use of Age Assessments in the Identification of Separated or Unaccompanied Children Seeking Asylum, para. 9(xi). See also Separated Children in Europe Programme, Position Paper on Age Assessment in the Context of Separated Children in Europe, 2012, p. 15, http://www.refworld.org/docid/4ff535f52.html (accessed May 1, 2018).

[257] Committee on the Rights of the Child, General Comment No. 21 on Children in Street Situations, U.N. Doc. CR/C/GC/21 (June 21, 2017), para. 12.

[258] Committee on the Rights of the Child, General Comment No. 6, para. 75. See also ibid., paras. 95-97; Joint General Comment No. 4 (Committee on the Rights of Migrant Workers) and No. 23 (Committee on the Rights of the Child), para. 4; UNHCR, Guidelines on International Protection: Child Asylum Claims, para. 72; Separated Children in Europe Programme, Statement of Good Practice, Part B10.

[259] Committee on the Rights of the Child, General Comment No. 6, para. 31(i). See also Joint General Comment No. 4 (Committee on the Rights of Migrant Workers) and No. 23 (Committee on the Rights of the Child), para. 4.

[260] UNHCR, Guidelines on International Protection: Child Asylum Claims, para. 75. Accord UNHCR, Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum, para. 5.11; UNHCR Observations on the Use of Age Assessment in the Identification of Separated or Unaccompanied Children Seeking Asylum, Case No. CIK-1938/2014, para. 9(ii).

[261] Human Rights Watch, “Like a Lottery,” pp. 17-32.

[262] See, for example, Amnesty International, Targeting Solidarity: Criminalization and Harassment of People Defending Refugee and Migrant Rights in Northern France (London: Amnesty International, June 2019); Défenseur des droits, Exilés et droits fondamentaux, trois ans après le rapport Calais (Paris: Défenseur des droits, December 2018); Human Rights Watch, “Like Living in Hell”; Human Rights Watch, “France: Aid Worker Convicted for Tweet,” September 27, 2018, https://www.hrw.org/news/2018/09/27/france-aid-worker-convicted-tweet; Office of the UN High Commissioner for Human Rights, “France Urged by UN Experts to Take Effective Measures to Bring Water and Sanitation Services to Migrants,” April 4, 2018, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22917 (accessed June 11, 2019).

[263] See Human Rights Watch, “The Root of Humiliation”: Abusive Identity Checks in France (New York: Human Rights Watch, January 2012).

[264] Human Rights Watch telephone interview with volunteer, Briançon, France, May 26, 2019.

[265] Human Rights Watch telephone interview with humanitarian worker, May 29, 2019.

[266] Human Rights Watch interview with volunteer, Briançon, France, February 13, 2019.

[267] Human Rights Watch interview with volunteer, Briançon, France, May 26, 2019.

[268] Human Rights Watch interview with volunteer, Briançon, France, May 26, 2019.

[269] Human Rights Watch interview with volunteer, Briançon, France, May 28, 2019.

[270] Human Rights Watch interview with volunteer, Briançon, France, February 13, 2019.

[271] Human Rights Watch interviews, Briançon, France, May 2019.

[272] Human Rights Watch interview with volunteer, Briançon, France, January 29, 2019.

[273] Human Rights Watch telephone interview with volunteer, May 30, 2019; Human Rights Watch interview with volunteer, Briançon, France, February 14, 2019.

[274] Human Rights Watch telephone interview with humanitarian worker, May 29, 2019.

[275] Human Rights Watch interview with volunteer, Briançon, France, January 29, 2019.

[276] Human Rights Watch telephone interview with humanitarian worker, May 29, 2019.

[277] Human Rights Watch telephone interview with volunteer, May 26, 2019.

[278] Human Rights Watch telephone interview with aid worker, May 28, 2019. A vehicle using studded tires should display a disk. Arrêté du 18 juillet 1985 relatif aux dispositifs antidérapants équipant les pneumatiques [Order of July 18, 1985, on Anti-Slip Devices Fitted on Tires], consolidated version, August 16, 2019, art. 6.

[279] Human Rights Watch telephone interview with volunteer, May 26, 2019.

[280] Human Rights Watch telephone interview with humanitarian worker, May 29, 2019. French license holders may receive a maximum of 12 points before their licenses are suspended.

[281] Human Rights Watch interview with volunteer, Briançon, France, February 13, 2019.

[282] Human Rights Watch interview with volunteer, Briançon, France, January 29, 2019.

[283] Human Rights Watch interview with volunteer, Briançon, France, February 13, 2019.

[284] Conseil Constitutionnel [CC] [Constitutional Court], Décision n° 2018-717/718 QPC, July 6, 2018.

[285] “Aide aux migrants : Cédric Herrou condamné à 3 000 euros d’amende avec sursis,” Le Monde, February 10, 2017, https://www.lemonde.fr/police-justice/article/2017/02/10/aide-aux-migrants-cedric-herrou-condamne-a-30-000-euros-d-amende-avec-sursis_5077536_1653578.html (accessed August 5, 2019).

[286] Luc Leroux, “Coupable d’avoir aidé des migrants, Cédric Herrou ‘continuera à se battre,’” Le Monde, August 8, 2017, https://www.lemonde.fr/immigration-et-diversite/article/2017/08/08/poursuivi-pour-aide-a-l-immigration-clandestine-cedric-herrou-attend-son-jugement-en-appel_5169880_1654200.html (accessed August 5, 2019).

[287] Edouard de Mareschal, “Un enseignant niçois jugé pour avoir aidé des migrants,” Le Figaro, November 23, 2016, http://www.lefigaro.fr/actualite-france/2016/11/23/01016-20161123ARTFIG00330-un-enseignant-nicois-juge-pour-avoir-aide-des-migrants.php (accessed June 12, 2019).

[288] Pierre-Alain Mannoni, “Pourquoi j’ai secouru des réfugiés,” Mediapart, November 11, 2016, https://blogs.mediapart.fr/pierre-alain-mannoni/blog/111116/pourquoi-j-ai-secouru-des-refugies (June 12, 2019).

[289] Luc Leroux, “Aide aux migrants: prison avec sursis en appel pour un enseignant-chercheur,” Le Monde, September 11, 2017, https://www.lemonde.fr/police-justice/article/2017/09/11/aide-aux-migrants-prison-avec-sursis-en-appel-pour-un-enseignant-chercheur_5184134_1653578.html (accessed June 12, 2019).

[290] “La Cour de cassation annule la condamnation de Cédric Herrou,” Le Figaro, December 12, 2018, http://www.lefigaro.fr/actualite-france/2018/12/12/01016-20181212ARTFIG00228-la-cour-de-cassation-annule-la-condamnation-de-cedric-herrou.php (accessed June 12, 2019).

[291] Pascale Robert-Diard, “Au procès de la responsable d’Amnesty jugée pour aide aux migrants, le naufrage de l’accusation,” Le Monde, May 30, 2018, https://www.lemonde.fr/societe/article/2018/05/30/une-responsable-d-amnesty-jugee-pour-son-assistance-a-deux-immigres-mineurs_5307223_3224.html (accessed June 11, 2019);

Jillian Kestler-D’Amours, “French Woman Faces Charges for ‘Aiding’ Asylum Seekers,” Al Jazeera, February 12, 2018, https://www.aljazeera.com/news/2018/01/french-woman-faces-charges-aiding-asylum-seekers-180129153709370.html (accessed June 11, 2019).

[292] “Relaxe pour Martine Landry, la bénévole d’Amnesty poursuivie pour ‘délit de solidarité,’” Le Monde, July 14, 2018, https://www.lemonde.fr/police-justice/article/2018/07/14/relaxe-pour-martine-landry-la-benevole-d-amnesty-poursuivie-pour-delit-de-solidarite_5331246_1653578.html (accessed June 11, 2019).

[293] “Aide aux migrants: Martine Landry relaxée, le parquet fait appel,” Le Dauphiné Libéré, July 24, 2018, https://www.ledauphine.com/france-monde/2018/07/24/aide-aux-migrants-martine-landry-relaxee-le-parquet-fait-appel (accessed June 10, 2019) ; Amnesty International, “Martine Landry: L’acharnement judiciaire,” July 24, 2018, https://www.amnesty.fr/refugies-et-migrants/actualites/martine-landry-lacharnement-judiciaire (accessed June 10, 2019).

[294] Human Rights Watch telephone interviews with Amnesty International France, August 23 and 26, 2019.

[295] See Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Gap, December 13, 2018, jugement correctionnel, pp. 37-40; Serge Pueyo, “Aide aux migrants: le procès des ‘sept de Briançon’ s’ouvre à Gap,” Le Parisien, November 8, 2018, http://www.leparisien.fr/faits-divers/aide-aux-migrants-le-proces-des-sept-de-briancon-s-ouvre-a-gap-08-11-2018-7937775.php (accessed June 10, 2019); “Aide aux migrants: les ‘sept de Briançon’ condamnés,” Le Monde, December 14, 2018, https://www.lemonde.fr/societe/article/2018/12/14/aide-aux-migrants-les-sept-de-briancon-condamnes_5397154_3224.html (accessed June 10, 2019). See also Karina Piser, “The Swiftly Closing Borders of Europe,” The Atlantic, December 19, 2018, https://www.theatlantic.com/international/archive/2018/12/europe-france-italy-immigration-border/578179/ (accessed June 11, 2019).

[296] Email to Human Rights Watch, June 5, 2019.

[297] Human Rights Watch telephone interview with volunteer, May 30, 2019.

[298] Human Rights Watch telephone interview with volunteer, May 30, 2019.

[299] “Aide aux migrants: deux militants condamnés à de la prison avec sursis,” Le Monde, January 10, 2019, https://www.lemonde.fr/police-justice/article/2019/01/10/aide-aux-migrants-deux-militants-condamnes-a-de-la-prison-avec-sursis_5407459_1653578.html (accessed June 12, 2019).

[300] Human Rights Watch telephone interview with Amnesty International France, August 26, 2019.

[301] “Migrants: 7 militants de Roya Citoyenne libres après plus de 24h de garde à vue,” Le Figaro, April 14, 2019, http://www.lefigaro.fr/flash-actu/migrants-7-militants-de-roya-citoyenne-libres-apres-plus-de-24h-de-garde-a-vue-20190314 (accessed August 5, 2019).

[302] ReSoma Discussion Brief, “Crackdown on NGOs and volunteers assisting refugees and other migrants,” June 2019, http://www.ismu.org/wp-content/uploads/2018/10/Final-Synthetic-Report-Crackdown-on-NGOs-and-volunteers-helping-refugees-and-other-migrants_1.pdf (accessed July 31, 2019), p. 25. A further 57 people were investigated or prosecuted for facilitating entry, transit, and stay, as well as on other grounds including membership in a criminal organization, sabotage or waste management.

[303] Ibid., p. 26. See also Liz Fekete, Frances Webber, and Anya Edmond-Pettitt, Humanitarianism: The Unacceptable Face of Solidarity (London: Institute of Race Relations, 2017).

[304] Sandie Bircan, “Migrants: les explications du procureur,” Le Dauphiné Libéré, October 15, 2018, https://c.ledauphine.com/hautes-alpes/2018/10/15/migrants-les-explications-du-procureur (accessed June 12, 2019).

[305] Human Rights Watch interview with volunteer, Briançon, France, May 28, 2019.

[306] Human Rights Watch interview with volunteer, Briançon, France, January 29, 2019.

[307] Human Rights Watch telephone interview with volunteer, May 30, 2019.

[308] Human Rights Watch interview with volunteer, Briançon, France, May 28, 2019.

[309] Code de l’entrée et du séjour des étrangers et du droit d’asile, art. L.622-1.

[310] Ibid., art. L.622-4.

[311] GISTI, “L’aide à l’entrée ou au séjour irréguliers selon le droit français,” April 27, 2019, https://www.gisti.org/spip.php?article6022 (accessed August 1, 2019).

[312] Council Directive 2002/90/EC of 28 November 2002 Defining the Facilitation of Unauthorised Entry, Transit and Residence, OJ L 328/17 (December 5, 2002), art. 1(2).

[313] Ibid., art. 1(1)(a). The directive does require financial gain for the purposes of sanctioning assistance to a person to reside within the territory of a member state, See ibid., art. 1(1)(b).

[314] European Commission, REFIT Evaluation of the EU Legal Framework Against Facilitation of Unauthorized Entry, Transit and Residence: The Facilitators Package (Directive 2002/90/EC and Framework Decision 2002/946/JHA), SWD(2017) 117 final (March 22, 2017), http://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/swd/2017/0117/COM_SWD(2017)0117_EN.pdf (accessed August 1, 2019), pp. 14-15. The seven countries are Belgium, Greece, Spain, Finland, Italy, Malta, and the United Kingdom.

[315] Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime, November 15, 2000, 2241 U.N.T.S. 507, art. 6(1).

[316] European Commission, REFIT Evaluation, p. 22.

[317] European Parliament Resolution of 5 July 2018 on Guidelines for Member States to Prevent Humanitarian Assistance from Being Criminalised, http://www.europarl.europa.eu/doceo/document/TA-8-2018-0314_EN.html (accessed August 1, 2019).

[318] European Union Agency for Fundamental Rights, “Criminalisation of Migrants in an Irregular Situation and of Persons Engaging with Them,” March 2014, p. 16, https://fra.europa.eu/en/publication/2014/criminalisation-migrants-irregular-situation-and-persons-engaging-them (accessed January 14, 2019).

Similarly, guidelines issued by the UN High Commissioner for Human Rights call on states to “[e]nsure that the organizations and individuals who rescue or provide assistance to migrants are not criminalized or otherwise punished for doing so.” Office of the UN High Commissioner for Human Rights and Global Migration Group, Principles and Guidelines, Supported by Practical Guidance, on the Human Rights Protection of Migrants in Vulnerable Situations (Geneva: Office of the UN High Commissioner on Human Rights, 2018), p. 28, https://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf (accessed January 14, 2019).

[319] See International Covenant on Civil and Political Rights, arts. 9, 22; Human Rights Committee, General Comment No. 35, para. 17 (noting that arrest as punishment for the legitimate exercise of the right to freedom of association, among other rights, is arbitrary).

Author: Human Rights Watch
Posted: January 1, 1970, 12:00 am

Government buses waiting to move families from one camp in Anbar governate to another during a previous wave of camp closures in December 2018. 

© 2018 Belkis Wille/Human Rights Watch

(Beirut) – Local authorities have forcibly expelled more than 2,000 Iraqis from camps for displaced people in Nineveh governorate since August 23, 2019, Human Rights Watch said today.

Some were forced to return to their home regions, despite fears for their safety, including from former neighbors who perceive them as being linked to the Islamic State (ISIS). Some have come under attack since being forced home. Authorities in Nineveh have also blocked families who tried to leave the camps to avoid expulsion.

“Displaced people, like all other Iraqis, have the right to move freely in their country and decide where they feel safe to live,” said Lama Fakih, acting Middle East director at Human Rights Watch. “Authorities can’t move people without first consulting them, especially not to places where they and their families face danger.”

Authorities in Salah al-Din have also announced plans to close camps for displaced people or are already forcing people to return to their governorates of origin.

In early July, the National Security Council, which coordinates Iraq's national security, intelligence, and foreign policy strategy, passed “Resolution 16.” The resolution is not public, but officials have described its contents in letters to humanitarian organizations. It orders people from areas other than Nineveh – currently at least 38,040 people – to leave the Nineveh camps. It mandates security forces to develop a database of residents and isolate families who are perceived as ISIS-affiliated. The resolution also calls for increased security to keep people from entering or leaving camps without permission and assigning more police to the camps, to “control” people’s movement and to “assess and audit” the work of nongovernmental organizations who work in the camps.

In response, the authorities began screenings across the Nineveh camps. On August 21, Migration and Displacement Ministry officials informed aid workers at the two camps in Nineveh where screenings had been completed that they intended to expel everyone there from other governorates, starting with those from Anbar governorate, two aid workers said. Anbar is a former ISIS stronghold.

On August 23, security forces from the Nineveh Operations Command expelled 36 families from Anbar, most headed by women, totaling about 150 people , and transported them to their areas of origin in Anbar against their will and without letting them bring their belongings. They were told they were being taken to a camp in Anbar, three families told Human Rights Watch. The families called aid workers to express fears when they found they were actually being taken back home, and aid workers unsuccessfully tried to intervene.

An aid worker in Ramadi said that one of the families fled to a camp for displaced people 25 kilometers away after local residents threatened to kill them because of their perceived ISIS affiliation. Since August 25, 16 families who security forces had taken back to the Haditha area have been living in a public school encircled by police about three kilometers away because they feel unsafe, two told Human Rights Watch. They said that on August 28, someone threw a hand grenade at the school. No one inside was injured.

Two aid workers said that elsewhere in Anbar, local security forces said they denied at least six families entry to their areas of origin because of perceived ISIS affiliation. They said several more families have contacted aid groups asking for help to relocate to nearby camps because they feel unsafe.

Camp management did not have time to issue the deported Anbar families departure letters to help them pass through checkpoints, obtain security clearances in areas they returned to, and to apply for funds available for people returning.

After the expulsions, other families who are not from Nineveh started leaving the camps to avoid expulsion but on August 25, the Iraqi Army’s 16th division ordered camp management in at least two of the camps to prevent families from leaving. The army forced some departing families to return to the camps under threat of arrest, three of the families and aid workers said.

On August 28, security forces forcibly expelled from the same camps 151 families – at least 610 people – originally from Hawija, an area in western Kirkuk that continues to experience ISIS attacks and military operations, to camps in the Kirkuk area, an aid worker there said, causing food shortages in the camps they were transferred to. But two aid workers have since told Human Rights Watch that the Kirkuk governor later agreed to allow the families to continue living in camps there, instead of forcing them to return home.

Security forces also expelled at least another 671 people from Nineveh camps to a camp in Salah al-Din on August 31. Two families said that the morning after they arrived, two grenades hit the camp fence. One man, 50, said that he and other families did not feel safe there after social media posts – some containing veiled execution threats – urged local people to protest the families’ presence. Aid workers present said security forces transferred the families to another Salah al-Din camp on September 2 because of increased security concerns for the families. Residents at the new camp location launched protests when they heard of the families’ arrival.

On September 2, authorities expelled another 481 people from Nineveh camps to Salah al-Din, after keeping them waiting on buses for over five hours without a bathroom, food, or water.

The deputy governor of Salah al-Din, which currently houses at least 105,390 displaced people, told aid workers in June that he aimed to close most displaced people’s camps and informal settlement sites by early September, with statements from local officials in late August and early September that at least two camps would be closed by early September. By August 24, security forces had expelled more than 500 families from an informal settlement in Salah al-Din, an aid worker said.

The UN Guiding Principles on Internal Displacement ensure displaced people’s rights to free movement and freedom to choose their residence, as well as their right to move freely in and out of camps.

Authorities in Iraq should not force people to return to or remain in specific locations and respect their right to free movement. They should immediately facilitate the return of families who want to return to areas not affected by ongoing military operations. And if authorities cannot ensure families’ safety, they should allow families to remain in or relocate to camps that allow for free movement or other areas where authorities can properly protect them.

In line with these standards, authorities should ensure that displaced people have at least seven days’ notice of their expulsions and provide a range of detailed options for safe assisted relocation. Authorities should ensure that camp management has time to issue departure letters needed to travel, resettle, and apply for assistance, and allow people to take their belongings with them.

“Over the last two weeks government has effectively transferred people into situations where they are being targeted with grenades and death threats,” Fakih said. “Before people board buses provided by the government transporting them from the camps, authorities should clarify where the buses are traveling so families can make an informed decision about how to keep themselves safe.”
 

Posted: January 1, 1970, 12:00 am

Migrants who crossed the U.S.-Mexico border in El Paso, Texas, in a photo dated May 29, 2019.

© 2019 US Customs and Border Protection via AP, File

(Washington, DC) – A Trump administration administrative rule could result in severe harm to migrant children detained in the United States, Human Rights Watch said today after filing with Amnesty International USA a friend-of-the-court brief on August 30, 2019 in the case. The brief, setting out relevant international human rights standards, supports lawyers for detained children who are challenging the new rule.

Under the new regulation, the government could indefinitely detain children together with their families. The new rule also lacks safeguards, which could further worsen conditions in detention.

“Children are particularly vulnerable to trauma and harm from detention,” said Clara Long, acting deputy Washington director at Human Rights Watch. “No amount of time in detention is safe for children, and indefinite detention significantly increases the risk they will suffer serious, long-lasting harm.”

Human Rights Watch and Amnesty International USA filed the amicus brief in the federal district court in California that oversees a 1997 settlement agreement governing the treatment of children in immigration detention. Lawyers for children covered by the case, now known as Flores v. Barr, are asking the court to rescind the new regulation as a breach of the 1997 settlement. The law firm Constantine Cannon served as counsel on the brief.

The core principle and requirement of the Flores Agreement is that migrant children taken into detention should be released as “expeditiously” as possible. The new rule provides instead for the indefinite detention of children with their parents in federal immigration facilities pending resolution of their immigration proceedings. In doing so, it seeks to reverse a 2015 court order under the Flores Agreement that children must not be held for more than 20 days in facilities not licensed to care for children.

International human rights standards recognize that immigration-related detention of a child is never in their best interests. The United Nations special rapporteur on torture has noted that immigration detention of children puts them at risk of cruel, inhuman, or degrading treatment or punishment prohibited under international law. The Inter-American Commission on Human Rights has expressed that even short-term immigration detention of children may be cruel, inhuman, or degrading treatment because child migrants are “at greater risk of torture and mistreatment owing to their vulnerability and unique needs.”

The US government claims that family detention is needed to ensure that families show up for immigration court for hearings. However, in community-based case management programs, the vast majority of people released from immigration detention show up for their court hearings.

“The administration’s new rule institutionalizes abusive policies against children,” Long said. “Instead of looking for ways to inflict more harsh treatment on children, the government should expand alternatives that allow children and their families to live in communities while their immigration cases are pending.”

Posted: January 1, 1970, 12:00 am