Determining the ‚best interest‘ of unaccompanied minors in Austria: A Study of the „Two-Class-System“ Ayse Dursun, Birgit Sauer University of Vienna, Department.

Determining the ‚best interest‘ of unaccompanied minors in Austria:

A Study of the „Two-Class-System“

Ayse Dursun, Birgit Sauer

University of Vienna, Department of Political Science

Conference is organised in the scope of the “In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures (MinAs)” research project, co-funded by the PPUAM 2013 of the European Union.

International conference

CHILDREN AND YOUNG PEOPLE ON THE MOVE: TOWARDS A MORE PRECISE DEFINITION OF THEIR BEST INTERESTS

19-20 November 2015

Portorož, Slovenia

National Legislation in Austria Austria ratified the UNCRC in 1992 with a so-

called „reservation for fullfilment“. Federal Constitutional Act on the Rights of

Children (2011), Article 1: “In all measures taken by public and private institutions concerning the child, the welfare of the child shall be given primary consideration.”

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

National Legislation in Austria Austrian Civil Code defines every person

younger than 18 as a minor (Art. 21) and that in matters related to a minor ‚the welfare of the child‘ (Kindeswohl) should be followed as a guiding principle (Art. 138). If a child‘s parents are unknown, the Child and Youth Welfare Services are entrusted with the legal guardianship of the minor (Art. 207).

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

National Legislation in Austria Act on Asylum (2005) regulates issues

related to international protection. Agreement on Basic Care and Services

(Grundversorgungsvereinbarung 2004) The Agreement entails special

provisions for unaccompanied minors: pedagogical and psychological support, child-friendly accomodation, well structured daily routine, family reunification, integration plan (Article 7).

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Asylum Trends in Numbers

UNHCR. Asylum Trends 2014. Levels and Trends in Industrialized Countries.

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Asylum Trends in Numbers

UNHCR. Asylum Trends 2014. Levels and Trends in Industrialized Countries.

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Asylum Trends in Numbers

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Development of asylum application numbers in Austria over the years

Bundesministerium für Inneres 2015.

Asylum Trends in Numbers

Bundesministerium für Inneres 2015.

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Number of asylum applications submitted in Austria, January-September 2015

Asylum Trends in NumbersNumber of asylum applications submitted by unaccompanied minors in Austria, January-September 2015 (till 14 years; 14-18 years; total)

Bundes Ministerium für Inneres 2015.

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Theoretical framework: Unaccompanied minors: children and/or asylum-seekers?

The status of unaccompanied minors and the definition of children‘s ‚best interests‘ are outcome of societal struggles and thus subject to continuous transformation.

Moreover, they are contradictory => between asylum seekers and children

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Theoretical framework: Unaccompanied minors: children and/or asylum-seekers?

Unaccompanied minors are socially and politically located at the interface between numerous – competing and contradictory – discourses and institutions (cf. Giner, 2007)

Policies related to foreigners implemented by the Ministry of the Interior and Aliens‘ Police driven by ‚institutionalized suspicion‘ (Giner, 2007) vs. child-welfare policies implemented by the Ministry for Families and Youth and Child and Youth Welfare Services guided by child-welfare concerns

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Method of the field research 17 in-depth interviews with experts working in

the field from Vienna, Lower Austria, Salzburg and Tyrol

12 in-depth interviews with (former) unaccompanied minors from Vienna and Lower Austria (with 11 boys and one girl)

Interviews were conducted in German and English.

All but two interviews were audio-recorded, transcribed and anonymized.

Data analyzed according to a common grid developed by project partners

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Research Findings:UAM‘s ‚best interests‘ in a „two-class“ child-welfare system

Arriving in Austria• Police hearing: resembles a ‚police

interrogation‘• Access to information: minors are hardly

informed on the procedure• Age-assessment: systematic, ‚institutionalized

suspicion‘ towards minors‘ statements, the age of the minors sometimes ‚corrected‘ upwards

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Research Findings:UAM‘s ‚best interests‘ in a „two-class“child-welfare system

Living at the facilities of the Bund: Most unaccompanied minors are accommodated at the initial reception center in Traiskirchen during the admisison procedure.

• Infrastructure: not child-friendly, over-cowded, limited access to education and leisure time activities, social isolation

• Legal guardianship: has improved since Supreme Court decision (OGH 19.10.2005, 7 Ob 209/05v) in 2005, however still delayed or missing during the admission procedure

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Research Findings:UAM‘s ‚best interests‘ in a „two-class“ child-welfare system

Living at the child-care facilities of the Länder during the asylum procedure

• Family-like, well-equipped environment• Minors live in rooms for one, two, three or four

people. Privacy becomes difficult in rooms for four.

• Minors are overall satisfied with the food although it may lack diversity. Some minors spend part of their pocket money on food to bring diversity into their diet.

• Minors watch TV or play video-games together in the evenings.In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Research Findings:UAM‘s ‚best interests‘ in a „two-class“ child-welfare system

Social Rights, Benefits and Services during the Asylum Procedure: Insufficient yet Improving

• Low daily rates for unaccompanied minors (38-77 Euro) compared to Austrian children in out-of-home-care (starts at 120 Euro). An increase has been discussed, could yet not be concluded.

• Insufficient psychological therapy (including translator) for traumatized children, long waiting time

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Research Findings:UAM‘s ‚best interests‘ in a „two-class“ child-welfare system

Social Rights, Benefits and Services during the Asylum Procedure: Insufficient yet Improving

• Insufficient (200 hours) German classes, compulsory schooling for minors 14 years-old or younger

• Apprenticeship and labour market difficult to access without asylum or subsidiary protection

• Very scarce resources for leisure time activities, minors hang out in the parks

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

Conclusions: ‚Best interest‘ ofthe child undermined by the „two-class-system“ Recent legal amendments/developments (Agreement on Basic

Care and Services, Supreme Court decision on legal guardianship for unaccompanied minors) represent significant improvements.

However, unaccompanied minors are still treated as asylum-seekers with additional social benefits and less as children unmistakably manifested in the lower daily rates for unaccompanied minors compared to looked-after Austrian children. Compared to the standards of Child and Youth Welfare Services unaccompanied minors enjoy less financial resources and social services.

Furthermore, long asylum procedure and restraints in accessing education and labor add up to the minors‘ current insecurities and impact their future prospects.

The best interests of unaccompanied minors can be assured through the lift of the „two-class-system“. Unaccompanied minors need to fall under the purview of the Child and Youth Welfare Services as their Austrian peers.

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures

“To have a bright future. […] For me the bright future is [to] study hard as much [as] you can,

and be what you want. That is it.” (Asif, 16)

In whose best interest? Exploring Unaccompanied Minors’ Rights Through the Lens of Migration and Asylum Procedures