The International Commission of Jurists (ICJ), Save the Children and Kids in Need of Defense (KIND) have issued a joint legal opinion on Article 53(1) of the new Asylum Procedures Regulation (APR), adopted as part of the EU Pact on Migration and Asylum.
The opinion concludes that placing unaccompanied children in the “asylum border procedure” is incompatible with international human rights law and standards and would expose them to violations of their rights.
The APR revises the EU framework for international protection applications and expands the use of accelerated procedures, including the “asylum border procedure”. This procedure may last up to 12 weeks or up to 16 weeks where the period is extended.
The ICJ and the co-signing organizations are concerned that the APR allows the use of detention for prolonged periods and the establishment of specific zones, including closed facilities or “border camps”, which, in practice, operate as places where people are deprived of their liberty.
Such systematic and prolonged deprivation of liberty is contrary to international human rights law and standards, according to which, detention of children for immigration purposes is never in their best interests and must never take place. In light of the risk of detention and the lack of adequate safeguards in the border procedure for unaccompanied children, the opinion finds that no child should be placed in the “asylum border procedure.”
The legal opinion focuses on Article 53(1) APR, which allows unaccompanied children to be placed in the border procedure only in a single exceptional circumstance: where there are “reasonable grounds” to consider them a danger to national security or public order, as referenced in Article 42(3)(b).
If an EU Member State nonetheless invokes Article 53(1) to place an unaccompanied child in the “asylum border procedure”, such placement must:
- be strictly exceptional and based on clearly articulated, reasonable, and non-discriminatory grounds demonstrating a present risk;
- follow an individual assessment of whether “reasonable grounds” exist, with the best interests of the child as a primary consideration;
- be subject to an effective right of appeal before an independent and impartial court;
- apply the presumption of minority and afford the benefit of the doubt to any individual claiming to be a child unless and until proven otherwise;
- ensure that any age assessment is prompt, multidisciplinary, guided by the best interests of the child, and accompanied by full procedural guarantees.
The organizations call on EU Member States to implement the APR in a manner that guarantees full respect for the rights and dignity of every child seeking international protection in the EU, in line with EU law and international human rights and refugee law.
Download
Joint legal opinion here.
Background
The EU Pact on Migration and Asylum, initiated by the European Commission and adopted by the Council on 14 May 2024, comprises several legislative instruments, including the APR. The new EU rules entered into force on 11 June 2024, with most provisions applying from 12 June 2026.
Read more about the detention of child migrants under the EU Pact on Migration and Asylum: Never in the best interests of the child: Risks of child detention in the screening and border procedures under the 2024 EU Migration Pact
Contact
For more information contact Karolína Babická, Senior Legal Adviser, ICJ Europe and Central Asia Programme, at karolina.babicka@icj.org.
