The Right to be Heard of Refugee Children: Views of Professionals on the Participation of Children in Asylum Procedures in the Netherlands

2.1 Child participation from a children’s rights perspective

When taking a closer look at the history of the emergence of children’s rights, it can be observed that throughout the nineteenth century, children and families (particularly from disadvantaged backgrounds) were seen as objects of protection and civilisation efforts by predominantly private (religious) charity organisations (Junger-Tas 2004). In the late nineteenth century, states started developing child welfare programmes and made efforts to extend compulsory education (Marten 2018). The ‘child-saving movement’ portrayed children as innocent victims of adult behaviour (Moody 2014). In this depiction, children had to be saved from poor living conditions, and the best interests of the child principle was employed to protect them. The image of the child as an object of protection gradually altered in the twentieth century. The view on children shifted away from a paternalistic perception towards one which saw children as active bearers of rights. This ultimately resulted in the adoption of the UN Convention on the Rights of the Child in 1989 (Tobin 2019). The CRC simultaneously highlighted children’s dependency and their autonomy (Verhellen 2015). The right to be heard (article 12 CRC) has played a key role in shaping understandings of children as members of a separate social category and as active agents who are not simply objects of protection (Vanobbergen 2015; Verhellen 2015).

The right to be heard, as is laid down in article 12 CRC, is part of the broader umbrella term ‘participation’ and the participatory rights in the CRC (Lundy 2007). The right to be heard implies that children who are capable of forming their own views have the right to express those views freely in all matters affecting them (article 12(1) CRC). Moreover, children’s growing capacities should be taken into account in the exercise of their rights (article 5 CRC; article 12(1)). This implies that a balance must be struck between treating children as active agents, who have the right and capacity to exercise their own rights and providing them with protection because of their on-going development and immaturity (Varadan 2019).

Under the CRC and European migration law, children are defined as persons up to the age of 18 (article 1 CRC; article 2(l) EU Directive 2013/32/EU) and until this age they are entitled to specific protections and safeguards. Children, as adults, have the right to seek asylum when they have a ‘well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’ (article 1A(2) Refugee Convention). In article 22(1) of the CRC, the right of children to seek asylum is acknowledged and a duty is placed upon states to provide ‘appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in this Convention and in other international human rights or humanitarian instruments’. The CRC Committee (UNCRC)¹ provides that all asylum-seeking children, irrespective of their age, must be given access to asylum procedures in a child-sensitive and age-appropriate manner (UNCRC 2005, para. 66; UNCMW & UNCRC 2017, para. 37). Children should have the right to express their views on all aspects of the immigration and asylum proceedings, including the reasons that lead to the asylum application (UNCRC 2009, para. 123). The CRC Committee also states that ‘[c]hildren should be heard independently of their parents, and their individual circumstances should be included in the consideration of the family’s cases’ (UNCMW & UNCRC 2017, para. 37). Moreover, refugee children should understand the procedure and its consequences, have access to age-sensitive information, and decisions should be communicated to children in a language and manner they understand (UNCRC 2005, para. 25; UNCRC 2009, para. 16).

Due to the dynamic nature of the child’s right to be heard, the CRC Committee (2009) recommends that states should not establish fixed age limits with regard to the implementation of this right (para. 21). Ideally, there should be an individual assessment of the child to determine whether she² is capable of expressing her views in a case (Lansdown 2005). In practice, however, states vary widely in the application of age limits and the assignment of legal capacity to children, also with regard to applying for asylum and being heard in the procedure. This may also depend on whether the child is unaccompanied or accompanied by parents (Rap, Schmidt & Liefaard 2020).

2.2 Child participation in asylum procedures

Several studies show that children themselves indicate that they value being heard – directly rather than through a representative – in important judicial decisions that affect their lives (Cashmore & Parkinson 2007; Saywitz, Camparo & Romanoff 2010). Research also shows that children who were not listened to felt desperate, frustrated, and losing control over the situation (Bessell 2011; Barnes 2012). Adults may see participation as a stressful experience for children (Van Bijleveld, Dedding & Bunders-Aelen 2015), however, stress often seems to relate to a lack of knowledge regarding the procedure and what the child can expect (Nathanson & Saywitz 2015). A common critique on child participation is that it is a Western construction that is not compatible with non-Western cultural traditions. Ruck et al. (2014: 24), however, state that ‘[a]dolescents across diverse cultural contexts and settings appear to value opportunities for participation even in those societies that do not emphasise children’s rights in practice’. They note that a growing body of empirical evidence shows that young people from diverse cultural backgrounds endorse participatory rights and that a restriction of participatory rights is associated with negative effects on psychological health and adjustment (Ruck et al. 2014).

With regard to refugee children, research shows that it is particularly complicated for them to have their voices heard in an effective and meaningful manner (Kohli 2006; Smyth 2019). Children experience hostile interrogation techniques, feel attacked and intimidated, questions are asked to expose inconsistencies and to question the credibility of the child’s story (Stalford 2018; Hedlund 2017; Chase 2013). Immigration officials often do not possess extensive skills which pertain to communicating with children (Doornbos 2006) and young refugees display distrust towards social workers and others who represent the asylum system. In addition, children may aim to protect themselves from distressing memories when sharing their asylum stories (Kohli 2006; Chase 2010). Some scholars argue that the adversarial nature of asylum procedures, as well as the important role that the child’s testimony and evidence play in substantiating the asylum application, prevent children’s right to be heard from being implemented (Shamseldin 2012). In general, power is unequally distributed in the asylum procedure and the asylum applicant bears the burden of proof (Dahlvik 2017; Lundberg & Lind 2017). Moreover, parents or smugglers may instruct unaccompanied children to present a certain story to the authorities, in order to increase their chances of being allowed to stay in the country (Kohli 2006).

Accompanied children, who file an asylum claim together with their parents, are often not automatically heard in the asylum procedure. This is the case even though the international standards recommend immigration authorities to hear these children individually as well (Pobjoy 2017). As a consequence, accompanied children are often not informed about the procedure and individual asylum motives by accompanied children are often overlooked (Ottosson & Lundberg 2013; Cederborg 2015; Crock 2015). Some argue that these children are seriously disadvantaged because ‘they are not considered adult enough for their asylum claims to be considered, and at the same time not children enough to deserve qualification as bearer of children’s rights’ (Lidén & Rusten 2007; Lundberg 2011; Lundberg & Lind 2017: 205; Brittle & Desmet 2020).

In this section, it has become clear that a gap exists between the legal norms (e.g. the right to be heard) and its implementation in practice. In the following sections, I will draw on empirical research conducted in the Netherlands, to further explain this implementation gap.

4.1 Information

When an unaccompanied or separated child arrives in the Netherlands and has been reported to the authorities, she is placed under supervision of a guardian (Aliens Decree 23 November 2000, the Netherlands, article 3.109d(1)). In addition, a lawyer is assigned to the child a few weeks before the first interview.³ The legal guardian and the lawyer should be allowed to attend the interview in which the asylum story and the child’s motives for seeking asylum are discussed and should be given the opportunity to pose questions or make remarks at the end of the interview (Aliens Decree 23 November 2000, the Netherlands, article 3.109d (4–5)). In practice, oftentimes the child is not accompanied by a lawyer because the legal aid scheme does not provide compensation for that and also the presence of the guardian or a volunteer from the Dutch Council of Refugees (DCR) is not guaranteed (Rap 2022). Usually different immigration officers conduct the consecutive interviews with the child, and an officer who was not involved in the interviews makes the ultimate decision on whether to admit or reject the asylum claim.

At the registration, the immigration authorities provide brochures with information concerning the asylum application procedure (e.g. registration, age assessment, reception, legal aid, relevant organisations, and what happens after the procedure). When the child is living at a reception centre, she may also receive information from the Dutch Council for Refugees (Rap 2020). DCR emphasised that they have the task to provide legal and procedural information to children and that the guardianship organisation is equipped to provide children with social and emotional support. DCR volunteers also prepare young people for the interviews by making a flight story analysis which can be shared with the lawyer and guardian. Lawyers and guardians, however, indicated that they rarely receive or use any of the information gathered through these analyses. Staff members of the reception centres indicated that they do not have the task to provide children with information. They always refer the child to the guardian, who in turn can also contact the lawyer or DCR. Both lawyers and guardians emphasise to the child the importance of telling the immigration officer a coherent and elaborate story about the flight and reasons for applying for asylum. The respondents explained that they usually work with teenagers, who are not always as interested in engaging in these conversations and who believe that their asylum applications will be successful anyway. Two of the participating lawyers indicated that they stress to the child that it is important to tell her own authentic story. These lawyers felt that it is unethical to advise the child to tell an incomplete story or to only explain as little as possible and wait for the immigration officer’s questions. Although most respondents believed that children are sufficiently prepared for the interviews, they generally were of the opinion that more time is needed to prepare the child before the procedure starts. Some lawyers indicated that they use drawings and timelines to explain the procedure.

Immigration officers stated that, when the interview starts, they mainly focus on providing information on the current interview and its purpose. The immigration officers assume that children have been prepared by the lawyer and guardian, though some indicated that they provide children with more elaborate introductions compared to adult applicants. They indicated to give the child insight into the purpose of the interview and the reasons for asking certain questions:

The purpose of the interview, from the perspective of the immigration authorities, is to have a clear picture of the flight story and asylum motives in order to assess whether the applicant qualifies for refugee protection.

Respondents indicated that the extent to which a child actually understands the information and impact of the asylum procedure depends on the age, level of development, and level of education. Some respondents indicated that not all lawyers take the preparation sufficiently, seriously. A guardian explained that it is therefore important for guardians to accompany the child to the appointment with the lawyer, to be able to later complement the information given by the lawyer. Moreover, a lawyer highlighted how strongly the interview setting can influence a child:

A guardian explained that some young people only understand the importance of the asylum interview once they have arrived at the immigration office. Only then do they start to understand what types of questions are asked and realise that they might have not prepared well enough.

The outcome of the asylum procedure can either be a positive or a negative decision concerning the asylum application. In case of a negative decision, the immigration authorities inform the child before the formal decision is taken about the intention to reject the application, and the lawyer can submit a legal opinion against the rejection (Aliens Act 23 November 2000 (C), the Netherlands, article 39(2)). In response to this opinion, the immigration authorities can either change the decision or uphold the rejection. In theory, the final written decision is handed out to the child in person, in the presence of an interpreter and the guardian, at the immigration office. The immigration authorities have the duty to inform the child about available remedies. The reasoning behind the decision is not further explained or discussed. One of the interviewed immigration officers explains the following:

In practice, however, not every child is present on the final day of the procedure to receive the written decision. Rather, many hear about the decision from their lawyer, who receives the written decision or guardian. In practice, the guardian is in closer contact with the child and has the possibility to discuss the decision with the child and can accompany her to an appointment with the lawyer to discuss the legal remedies.

The written decision itself is a legal text, containing technical legal reasoning, which is not adapted to children’s level of understanding. One immigration officer reflected on the weight that can be attached to the child’s story:

For lawyers and guardians, it is challenging to explain to the child why the immigration officer qualified her story as not credible. This is because children believe their story is true and/or they have no other means to prove their story, such as identity documents or other official papers to prove their origins (Dahlvik 2017).

4.2 Participation

Most respondents were of the opinion that children should be able to tell their story in the procedure and understand what their role is in the procedure. Lawyers and guardians seemed to have a strong opinion on the participation of children, stating that children do not actually, meaningfully participate in the asylum procedure. While children should be able to make a difference by telling their story, these respondents doubt whether this is possible in practice. They also indicated that children themselves do not believe that they are genuinely heard in the procedure:

Immigration officers indicated that the goal of hearing children is to find out what the reasons are for applying for asylum and to determine whether the child needs protection and can therefore by granted asylum:

The majority of respondents indicated that the level of participation largely depends on the age, level of education, and cultural background of the child. Some mention that participation is a Western concept, making it is very difficult to implement it in the asylum procedure. They indicated that children who have grown up in other cultures may not be used to conveying their own views and opinions to an adult. Most immigration officers, on the other hand, explained that they make adaptations to the interview with a child. Such adaptations include explaining the purpose of the interview to the child to put her at ease, making some small talk before the interview starts, adapting the language to the level of understanding of the child and taking breaks more frequently.