Protecting Unaccompanied Migrant Boys, Girls, and Adolescents: Determining the Child’s Best Interest Lic. Dora Irene

1. Protecting Unaccompanied Migrant Boys, Girls, and Adolescents: Determining the Child’s Best Interest • Lic. Dora Irene Ordóñez Bustos • Lic. Patricia Fragoso Sánchez • Mexico

2. Relevant Background • In 1996, the Inter-institutional Programme for Assistance to Boys, Girls, and Adolescents in Border Regions was established, with the objective of providing comprehensive assistance to boys, girls, and adolescents in highly vulnerable situations at the border between Mexico and USA. • The programme operated through a coordinating committee– National System for the Comprehensive Development of Family, Secretariat of Foreign Affairs, and Secretariat of the Interior, through the National Institute of Migration. • In 2005, a strategy was established for assistance to migrant boys, girls, and adolescents at the southern border of Mexico. • Since 2006, the Strategy for Prevention and Assistance to Unaccompanied Migrant Boys, Girls, and Adolescents of the National System for Comprehensive Development of Family has beenstrengthened. • In Mexico, assistance is provided to a minimum of 15,000 migrant Mexican boys, girls, and adolescents returning from the USA each year. Close to 11,000 of them travelled unaccompanied. • In 2011, assistance was provided to 4,000 foreign migrant boys, girls, and adolescents. Approximately 3,000 travelled unaccompanied.

3. Relevant Background • As a fundamental part of assistance, a procedure has been established to determine the Child’s Best Interest. • The objective is to have a formal process to determine the Child’s Best Interest for especially important decisions that affect boys, girls, and adolescents during regularization of their migration status or during the return to their country of origin. • Oriented toward unaccompanied migrant and/or repatriated boys, girls, and adolescents whose family reintegration and/or return to their country of origin involve risks or violation of their human rights. • The procedure was established in 2011 and is currently being implemented, supported by the Migration and Immigration Act and its bylaws.

4. Actions • Establishing, in 2007, the Inter-institutional Dialogue Group on unaccompanied migrant boys, girls, and adolescents and migrant women, as a mechanism for addressing the topic of unaccompanied migrant boys, girls, and adolescents with an institutional approach. • The objective is to promote inter-institutional coordination, exchange information, and agree on actions and mechanisms that enable guaranteeing the rights and protection of unaccompanied boys, girls, and adolescents and migrant women entering or leaving national territory. • Developing a Model for the Protection of the Rights of Unaccompanied Migrant Boys, Girls, and Adolescents, with the aim of ensuring full exercise of their rights during any stage of the migration process.

5. Actions • The primary steps for implementing this practice were: • Establishing an Executive Secretariat that convened and coordinated participation of various government institutions, together with representatives from international organizations involved in the topic. • Establishing a Technical Group composed of specialists from various organizations participating in the Group in charge of the development of specialized procedures. • The central themes developed were protecting the exercise of the rights of unaccompanied migrant children and adolescents. • Establishing the role of Child Protection Officer (OPI). 5

6. Sustainability • The procedure of determining the Child’s Best Interest has become a persistent procedure, included in Article 74 of the Immigration Act in Mexico (May 2011), with a human rights approach. • Committee for Determining the Child’s Best Interest. The institutions involved in this procedure are those specializing on migration, children, health, security, refuge, and foreign affairs. • The procedure of Determining the Child’s Best Interests ensures that specific protection and assistance is provided to boys, girls, and adolescents: • Training staff to assess the situation of each boy, girl, or adolescent in a comprehensive manner, ensuring that decisions comply with the provisions and the spirit of the Convention on the Rights of the Child and other instruments; • Enables considering the opinion of the child and ensuring that appropriate relevance is given to the opinion of the child, in accordance with age, level of maturity, and development of capabilities;

7. Sustainability • Through an approach focused on the child, helps identify protection gaps for boys, girls, and adolescents with this profile; through determining the Child’s Best Interest it is possible to monitor the effectiveness of previous actions; address identified gaps; and implement corrective actions, if required; • Enables, when the age of the child is unknown or when discrepancies exist regarding the age, a comprehensive assessment of the level of maturity of the person which, in turn, enables responding appropriately; • Through participation of inter-disciplinary staff, it is possible to avoid that an isolated person makes decisions that could have a fundamental impact on the child; 7

8. Sustainability • The draft bylaws to the Immigration Act consider a PROCEDURE TO DETERMINE THE CHILD’S BEST INTEREST FOR UNACCOMPANIED FOREIGN MIGRANT BOYS, GIRLS, AND ADOLESCENTS, for all decisions relating to treatment by relevant authorities and resolution of the migration status, especially in the following cases:I. Family reunification processes, andII. Procedures to grant refugee status.For all cases of unaccompanied boys, girls, and adolescents, the Child’s Best Interest will be assessed by staff trained on child protection. 8

9. Sustainability The assessment should consider, as a minimum, the following aspects: • Identifying immediate assistance needs; • Identifying potential situations of human rights violations; • Identifying any international protection needs; • Identifying alternatives for the comprehensive protection of their rights and considering their opinion; • Collecting information from family members, other close persons, or institutions providing assistance, provided that this is not against the Child’s Best Interest. • The Child’s Best Interest will be assessed by staff specializing in child protection. 9

10. Sustainability • The assessment may be supported by a duly accredited representative from the National Human Rights Commission, without detriment to the authority of the legal representative, person of trust, or consular or diplomatic representative of the country of origin of the boy, girl, or adolescent. • Based on this assessment, relevant protection actions will be established and, if appropriate, determining the Child’s Best Interest will be recommended. • Involved actors: INM, SNDIF, State Systems to Determine the Child’s Best Interest, COMAR, PGR, and relevant institutions involved in this matter, considering their participation to ensure protection of the rights of the boy, girl, or adolescent. • In the case of applicants for refugee status, the Mexican Committee for Assistance to Refugees should be in charge of the general coordination, in accordance with the provisions of the Law on Refugees and Complementary Protection and its bylaws. 10

11. Sustainability • When the complexity of the case requires an inter-institutional decision, the Child’s Best Interest will be determined. Institutions in charge of this will make recommendations that the relevant authority should consider, with the aim of resolving the migration status and establishing and implementing the necessary actions to guarantee the rights of the boy, girl, or adolescent in a comprehensive manner. The procedure of determining the Child’s Best Interest will apply in the following cases:I. When the return to the country of origin or usual residence may involve rights violations and when the boy, girl, or adolescent has not been granted refugee status or is not eligible for complementary protection;II. When family reunification could involve rights violations;III. When the boy, girl, or adolescent has applied for refugee status or is a potential victim or witness of a crime, and when his or her rights could be violated; IV. When it is necessary to make a decision while relevant authorities determine a resolution; andV. Any other situation considered to be relevant. 11

12. Lessons Learned • Monitoring implementation of procedural guarantees as established in the Convention on the Rights of the Child and international law; • Specifying, together with involved authorities, what are the competences (Inter-institutional Dialogue Group on Unaccompanied Boys, Girls, and Adolescents and Migrant Women). • Migration policies should consider special protection for boys, girls, and adolescents, based on the Child’s Best Interest and family unification as guiding principles. • Establishing requirements by the international community to expand national systems for the protection of migrant and repatriated boys, girls, and adolescents. • Capacity-building of relevant State and municipal authorities, especially systems for the well-being of boys, girls, and adolescents, that should fulfil their obligations in accordance with the Convention on the Rights of the Child (this could include training, assistance on international law and interpreting and translation services); • Providing, when appropriate, guidance to other countries that are developing their own processes for the protection of unaccompanied migrant boys, girls, and adolescents.

13. References of best practices. • DirectricesGenerales Inter-Agencialessobreniñas y niños no acompañados y separados (UNHCR, UNICEF, CICR, IRC, Save the Children (RU), World Vision International) (Geneva, January 2004). • El trabajo con niños no acompañados: Un planteamientocomunitario (UNHCR, Geneva, revised in May 1996). • Directricessobrepolíticas y procedimientosrelativos al tratamiento de niños no acompañadossolicitantes de asilo( UNHCR, Geneva 1997). • El trabajo con niños separados, Guía de campo. Manual y ejercicios de capacitación (Save the Children, RU, London 1999). • No es un asuntopequeño. Garantizar la protección y lassolucionesduraderas a los niños no acompañados y separados (Lutheran Service on Immigration and Refugees, Baltimore, 2007). • Manual de referenciapara la operación del Modelopara la protección de derechos de niños, niñas y adolescentesmigrantes no acompañados. Inter-institutional Dialogue Group on Unaccompanied Boys, Girls, and Adolescents and Migrant Women; Mexico 2011.

14. Final Reflections • Recent legal reforms have enabled changes in the management and quality of national institutions to ensure full respect for the human rights of migrant boys, girls, and adolescents as established in international instruments. • The efforts implemented in Mexico to incorporate international child protection standards within the national legal framework have promoted the establishment of the role of Child Protection Officer to safeguard the integrity of unaccompanied migrant boys, girls, and adolescents. • The new Immigration Act establishes, as stipulated in international standards, a set of basic rights to ensure due process, such as: a hearing; legal aid; informing migrant boys, girls, and adolescents about their rights; consular notification; applying for refugee status; access to telephone communications; access to family reunification; and the right to health care, considering the Child’s Best Interest and determination of the Child’s Best Interest at all times.