I/A Court H.R., Rights and guarantees of children in the context of migration and/or in need of international protection. Advisory Opinion OC-21/14 of August 19, 2014. Series A No.21.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 


In response to a request presented by the States of Argentina, Brazil, Paraguay and Uruguay, the Inter-American Court issued an Advisory Opinion[1] in August 2014 on “Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection”. It indicated that the Opinion would be of specific usefulness in the context of a regional reality in which aspects relating to State obligations concerning migrant children had not been clearly and systematically established.

 

Based on its interpretation of the American Convention on Human Rights, the American Declaration of the Rights and Duties of Man, and the Inter-American Convention to Prevent and Punish Torture, the Opinion determines a series of obligations which States must take into consideration when designing, adopting, implementing and applying immigration policies with respect to children associated with their parents’ or their own migratory status. These are as follows:

 

•        States must give priority to a human rights-based approach that takes into consideration the rights of the child and, in particular, its protection and comprehensive development; this should take priority over considerations of nationality or migratory status.

•        Non-national children requiring international protection must be identified through an initial evaluation that affords guarantees of safety and confidentiality so they can be provided with necessary, suitable and individualised attention based on their age; special protective measures should be adopted if necessary in the best interest of the child.

•        Administrative or judicial proceedings in which decisions are taken on the rights of migrant children must be adapted to the children’s needs and be accessible.

•        Immigration proceedings involving children must be covered by guarantees of due process. In particular, the child shall have rights to linguistic, consular and legal assistance and, if unaccompanied or separated, a guardian; decision must take into account the child’s best interest and be duly reasoned and there must be a right of appeal with suspensive effect.

•        Children must not be deprived of their liberty as a precautionary measure or to ensure family unity or because they are alone or separated from their family; instead, States must incorporate non- custodial measures into their domestic law to be implemented by competent administrative or judicial authorities.

•        Accommodation for children should respect the principle of separation and the right to family unity: unaccompanied or separated children should be lodged separately from adults while accompanied children should be lodged with their family members unless this would not be in their best interest; if there is a risk of deprivation of liberty, States must respect the specific guarantees that become operational in such context.

•        Children must not be expelled to a State where their life, security and/or liberty is at risk or where they are at risk of torture or other cruel, inhuman or degrading treatment.

•        Any decision on the return of a child to the country of origin or to a safe third country shall only be based on the requirements of her or his best interest, taking into account that the risk of violation of the child’s rights may be manifested in particular and specific ways owing to age.

•        The State obligation to establish and follow fair and efficient procedures in order to identify potential asylum applicants and to make a refugee-status determination through a suitable and individualised analysis, must include the specific components developed in light of the comprehensive protection due to all children, applying fully the guiding principles and, especially those referring to the child’s best interest and participation.

•        Any administrative or judicial body that is to make a decision on the separation of family members, due to expulsion based on the immigration status of one or both parents, must employ a weighting analysis that considers the particular circumstances of the case and guarantees an individualised decision, prioritising the best interests of the child. Where the child has a right to the nationality of the country from which one or both of her or his parents may be expelled, or the child complies with the legal conditions to reside there on a permanent basis, States may not expel one or both parents for administrative immigration of- fences, as the child’s right to family life is sacrificed in an unreasonable or excessive manner.

 

Links to the Advisory Opinion and the press release (in Spanish only) (<http://www.corteidh.or.cr/>)


 


[1]  The possibility of issuing Advisory Opinions is part of the advisory function of the Inter-American Court, in accordance with Article 64(1) of the American Convention and Articles 70 to 75 of the Court’s Rules of Procedure. Under this function, the Court responds to the requests formulated by State members of the Organisation of American States or its entities in respect to: (a) the compatibility of domestic laws with the American Convention and (b) the interpretation of the Convention or of other treaties concerning the protection of human rights in the American States.