INTRODUCTION
Child asylum seekers are also human beings which are undergoing traumatic experiences. They are the workers and producers in transmit from economic environment to another. They are the political person and find their definition in the political events that they have set them in flight and they pose important questions about the sovereignty, human rights and the relationship between the states and between nations and international peace and order.
The flight of people in the quest of refuge and asylum is as old as history and so are the inevitable sufferings of the uprooted and homeless. Forced by man’s inhumanity to man, to flee have ravaged lands of their birth and now they are in the search of dignified existence, following only one law: “Law of Survival”. Fortunately there have been throughout history humanitarian initiative to alleviate the plight of refugees and displaced person. As long as man remains intolerant of his fellow men, flight will continue to be the only alternative of the persecuted.
Those who are denied at home the essential liberties of life will pull of their roots and look elsewhere for freedom. They are the international refugees and asylum seekers fleeing from their country, where they fear or have suffered oppressions.
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The world now has turned into shrunk and large scale problems of refugees, asylum seekers, displaced persons, minorities and war victims have come to close attention of the international community. Wars and many other military and political conflicts have brought in their wake a countless number of uprooted, including millions of refugees in search of new homes. The emergence of new national states often entailing changing the regime and boundaries, the struggle for decolonization and reshaping of the whole areas have also brought about an endless stream of ‘Human Misery’. The plight of refugees was a challenge to the consciences of public spirited person in many countries. But by the end of the year 1920, it had become obvious, that the task for assisting the refugee beyond the capabilities of charitable organisations working on their own. So after the end of the First World War initiatives were taken in the form of organised international effort under the inspiring impulsion of Fridtjof Nansen, the first League of Nations High commissioner for refugees. By the terms of Article 25 of the Covenant of the League of Nations, the members of the League were pledged to cooperate with Red Cross Organisations, having as their purpose the improvement of health, prevention of disease and the mitigation of sufferings all over the world. The League of Nations Mandate to Nansen for Russians expanded to Turkish refugees in the year 1922 and Americans in 1923. The European countries also tried to cope with the new realities by series of minority treaties in the interwar years. The economic and political change around the World War I resulted in refugees being perceived as a burden as well as threat. Collective action was necessary because of the numbers involved. It was such a situation that the social category of the refugee and the International Refugee Regime began to evolve.
“It was only after the Second World War that the question of international migration became recognised as one requiring an international solution. From this time onward the concept of ‘Freedom of Movement gained impetus, and rebellion took place against the supremacy of states sovereignty in matters relating to the release of subjects or the admission of aliens”.
After the end of the Second World War and the establishment of the United Nations, the international legal regime for the protection of the refugees was evolved and developed to cater primarily the situation of the refugees displaced from their home countries by the war. The basic principle of refugee law is International Solidarity. It is clearly linked to the very first Article of the Universal Declaration of Human Rights 1948 which states that
“All Human Beings are born free and equal in the dignity and Rights. They are endowed with reason and conscience and should act towards one another in spirit of brotherhood.”
This is the principle of Solidarity which established that the refugee person is a person of concern to the international community. It is also the principle which establishes the obligation to extend refuge to those who are compelled to flee from the social order and violence and treat them in the manner befitting their dignity, feelings and conscious.
SUBSTANTIVE ANALYSIS OF CHILD ASYLUM CLAIMS
Conducting refugee status determinations in a child-sensitive manner requires recognition of two central points: (1) children may have independent claims to refugee status; and (2) children may experience child-specific forms of persecution, giving rise to a claim for refugee protection. UNHCR has taken the position that child-specific forms and manifestations of persecution must be recognized in assessing the asylum claims of children. Persecution in the context of a child-sensitive approach encompasses violations of child-specific rights such as protection from all forms of physical and mental violence, abuse, neglect and exploitation.[1] In addition, children may be more susceptible to harm than adults and may experience the harm differently. In this regard, it is essential that persecution be viewed from the child’s perspective. “To assess accurately the severity of the acts and their impact on a child, it is necessary to examine the details of each case and to adapt the threshold for persecution to that particular child.”[2] The Guidelines on Child Asylum Claims discuss several examples of child-specific forms of persecution, stating: “UNHCR’s Executive Committee has recognized that child-specific forms of persecution may include under-age recruitment, child trafficking and female genital mutilation (hereafter “FGM”). Other examples include, but are not limited to, family and domestic violence, forced or underage marriage, bonded or hazardous child labour, forced labour, forced prostitution and child pornography.
PROCEDURAL SAFEGUARDS AND BEST INTERESTS OF THE CHILD
International standards require that when the asylum applicant is a child, the refugee definition must be interpreted in a child-sensitive manner to ensure protection is not denied in error because of failure to take into account the child’s unique experiences of persecution or to properly evaluate the child’s account of the events that give rise to the asylum claim.[3] Other factors, such as “a child’s stage of development, knowledge and/or memory of conditions in the country of origin, and vulnerability, also need to be considered to ensure an appropriate application of the eligibility criteria for refugee status.” Because of the “extreme vulnerability of the child” a State must consider the “best interests of the child” when taking any action affecting a child. UNHCR has taken the position that the “best interests of the child” determination should facilitate adequate child participation without discrimination, involve decision-makers with relevant expertise, and balance relevant factors, such as the child’s wishes and feelings, the safety of the child and exposure or likely exposure to severe harm, and family or other close relationships, to assess what option is in the child’s best interest.
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CONCLUSION
International law of asylum rests on a humanitarian premise. It is a premise tragically inadequate for our time, but one, which remains a terra incognita despite the frequency and enormity of contemporary refugee crises. The problem of the child asylum seeker is today profoundly different. In the face of dramatically and cataclysmically changed social and economic conditions, States felt obliged to abandon the centuries-old practice of permitting the free immigration of persons fleeing threatening circumstances in their home countries. The problem of the child asylum seeker, by its very nature, concerns the relations between states because it involves the movement of persons between states. The perspective of state-to-state relations, not the relation between the individual and the state, becomes critical for the mitigation or solution of the crises. The role of the UNHCR from a passive facilitator to that of active promoter has emerged in view of the complex situation, the demands of the international community, overburdened host countries and in certain situations, the child asylum seekers themselves due to miserable life in the camps in the host countries. Its role as an active promoter has evolved over time and the international community has accepted it and now there is no possibility of going back. The international community has also to address the causes of the asylum seekers and adopt a pro-active role to bring about peace and reconciliation. Adequate and timely reintegration assistance plays a very important role in the successful repatriation and therefore, should get the due attention of the international community.
[1] UNHCR Guidelines on Child Asylum Claims, ¶13.
[2] Id. at ¶15.
[3] UNHCR Guidelines on Child Asylum Claims, ¶20.
