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Volume 3 issue 2 December 2015

How Immigration Detention and Procedural Shortcomings Undermine Children’s Right to Seek Asylum

Michael Garcia Bochenek​
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This paper examines the reasons why unaccompanied and separated children—those who travel without caregivers—may choose not to apply for asylum or may abandon applications even when they have strong claims. It suggests that four related factors help explain such outcomes. First, children’s asylum claims are not always well-understood by adjudicators. Second, unaccompanied and separated children are generally expected to prepare and present their claims without the assistance of a lawyer or guardian. Third, domestic legal frameworks do not always reflect the international standard that the return of children to their home countries should only be carried out if it is in the best interests of the child. Finally, detention is a tremendous deterrent to children who might otherwise seek asylum. This paper draws largely on research into the treatment of Central American children in Mexico and the United States. Other researchers and advocates have reached similar conclusions in other countries, suggesting that these conclusions may be more generally applicable to child asylum seekers elsewhere in the world—although some of these issues, particularly compliance with the best interests principle and the impact of detention, do not appear to have been examined in depth. Affording child­ren effective access to asylum requires states to recognise the ways that children may be subjected to persecution and to afford them the information and assistance they need to make claims. States should also ensure that children and their families are not detained solely as a means of immigrat­ion control, and should establish and make effective use of alternatives to detention.
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