New Advisory Opinion and Country Visit by the Inter-American Human Rights Bodies Clarify the Rights of Migrant Children

IACHR visits the U.S. southern borderCredit: Daniel Cima / IACHR
IACHR visits the U.S. southern border
Credit: Daniel Cima / IACHR

Last month, the Inter-American Court of Human Rights released an Advisory Opinion defining the scope of States’ obligations to protect the rights of migrant children and families. See 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, 19 August 2014. State Parties to the American Convention on Human Rights and the American Declaration of the Rights and Duties of Man must take this Advisory Opinion into consideration when “designing, adopting, implementing, and applying their immigration policies.” See para. 50. Relatedly, from September 29 to October 2, the Inter-American Commission on Human Rights conducted a country visit to the United States, examining the treatment of unaccompanied migrant children who had crossed the southern border into the United States. [IACHR Press Release] The Inter-American bodies’ focus on migrants’ rights comes at a point in time when the United States and Mexico, in particular, are facing scrutiny for their treatment of undocumented migrants – including an influx of children – from Central America.

Migration Flows in the Region

Millions of people have migrated from the Latin American and Caribbean countries to North America and Europe. See I/A Court H.R., Advisory Opinion OC-21/14, para. 2. Many such people belong to one or two vulnerable groups, as children or undocumented migrants. For example, in 2013, there were 61.6 million migrants in the Americas, and 6.8 million of those migrants were under 19 years old. See id. at para. 4. The U.S. Customs and Border Protection (CBP) agency reports that it apprehended 66,127 unaccompanied children at its southwestern border between October 2013 and September 2014. [IACHR Press Release] In fiscal year 2014, the CBP apprehended 66,142 families of undocumented migrants, which represents an increase of 412% in comparison to the previous fiscal year. [IACHR Press Release] Among other factors, the influx of migrants to the United States is largely due to increased gang violence in El Salvador, Guatemala, Honduras, and Mexico. [IACHR Press Release]

Advisory Opinion on State Obligations

In light of the large numbers and vulnerability of migrants leaving Latin America and the Caribbean, in July 2011, Argentina, Brazil, Paraguay, and Uruguay submitted a request to the Inter-American Court for an Advisory Opinion to determine the scope of State obligations regarding the rights of migrant children under the American Convention on Human Rights, American Declaration of the Rights and Duties of Man, and the Inter-American Convention to Prevent and Punish Torture. See I/A Court H.R., Advisory Opinion OC-21/14, para. 1.

In particular, the requesting States emphasized that both irregular migrants and children “require…a special commitment on the part of States,” but that the prevailing detention, criminalization, and treatment of child migrants demands clarification of “many pending issues” in relation to the recognition and protection of their human rights. Id at para. 2.

The States specifically requested the Court to address: the procedures necessary to identify the needs of migrant children; procedures used to assess requests for asylum or recognition of refugee status; the scope of the principle of non-refoulement; due process guarantees governing immigration proceedings; the standard for adopting precautionary measures; alternatives to detention; conditions of accommodation facilities; and the scope of the child’s right to family life. See id. at para. 3.

Identifying and Addressing Migrant Children’s Needs

The Court stated that the American Convention and the American Declaration require States to put in place initial evaluation processes to identify and address the individualized needs of migrant children. These processes should determine: the child’s age, nationality, whether the child is unaccompanied or separated from its family, the reasons for the child’s departure, and if the child needs international protection or special measures for protection. See id. at paras. 82–86.

International protection is the “protection that a State offers to a foreign person because, in his or her country of nationally or habitual residence, that individual’s human rights are threatened or violated and she or he is unable to obtain due protection there because it is not accessible, available and/or effective.” See id. at para. 37.

The Court added that the State is obligated to implement measures within its domestic law that promote the well-being and development of migrant children. These measures should satisfy their material, physical, and educational needs, provide emotional care, and protect them from violence or abuse. See id. at para. 164.

Asylum Claims, Refugee Status, and the Principle of Non-Refoulement

The Court held that States have a duty to adapt processes regarding asylum claims and refugee status determinations that “provide children with real access to these procedures.” See id. at para. 261. These measures should include: not impeding the child’s entry into the country, giving individuals access to the entities that can determine their status, priority processing for children, health evaluations, examinations conducted in a manner that does not re-traumatize the child, providing accommodations, issuing an identity document to avoid return, and assigning an independent and trained guardian to the case. See id. The Court noted that in “situations of a mass influx of persons,” individual determination may be impractical, in which case States should guarantee access to “protection from refoulement, and basic humanitarian treatment.” See id. at para. 262.

The principle of non-refoulement establishes that no State may return a refugee to a State where his or her life or freedom would be threatened due to race, religion, nationality, membership of a particular social group, or political opinion. See id. at para. 209; see also United Nations Convention Relating to the Status of Refugees (art. 33). The Advisory Opinion affirmed the validity of this principle with regard to children, adding that it is legally binding on all States because it is considered a jus cogens norm of customary international law, and it requires States to adopt positive measures to ensure this principle is not violated. See I/A Court H.R., Advisory Opinion OC-21/14, paras. 211, 225, 242.

Due Process in Migratory Proceedings

The Court found that the American Convention and Declaration require States to observe special guarantees of due process for children in migratory proceedings. See id. at para. 114. These guarantees include: the right to be notified of proceedings and the decision adopted, having the proceedings conducted by specialized official, the right of the child to be heard and participate, the right to a free translator, effective access to consular authorities, the right to legal assistance, the appointment of a guardian if the child is unaccompanied, the right to appeal the decision, the proceedings must take a reasonable time, and the decision adopted must be in the child’s best interest. See id. at para. 116.

Detention as a Last Resort

The Court determined that States may not place migrant children in detention as a precautionary measure for solely “migratory reasons,” because this violates the American Convention and the Declaration as an arbitrary deprivation of liberty. See id. at para. 154. The Court found that migrant children’s right not to be deprived of their liberty also extends to their family, and authorities are obliged to find alternative measures to detention for their family as well. See id. at para. 158.

When children’s personal liberty is restricted, the Court held that the States must ensure respect for the children’s due process rights, including: the ability to challenge the lawfulness of the deprivation of liberty, the prohibition of arbitrary detention, the right to be informed of the reason for the detention in a language the person understands, right to promptly see a judge, right to notify a family member, guardian, or specialized international agency, right to information and access to consular assistance, right to legal assistance, the right to have a judge decide if the restriction on liberty is lawful. See id. at para. 190.

When migrant children are living in accommodation centers, the State has a duty to separate children from adults, unless the children are with their adult family members and it would not be in the child’s best interest to separate him or her. See para. 178. The Court held that the accommodation centers should allow entry and exit, and that the centers must provide housing, medical care, legal assistance, educational support, and specialized care to the children. See id. at paras. 180–182.

Children’s Right to Family Life

The Court held that when a child has a right to nationality or is legally residing in a country, the child’s right to family life under the American Convention and Declaration prevents the child’s parents from expulsion due to immigration offenses. See id. at para. 280. In other situations, the State has a duty to weigh its own interests against those of the family, taking into consideration: the immigration history and ties of the parent to the host country, the children’s nationality, and the harm and disruption of the child’s life that would occur if the family were divided. See id. at para. 279.

Commission’s Visit to the United States

Also in September, the Inter-American Commission on Human Rights initiated a country visit to the southern border of United States, in light of the ongoing influx of migrants from Central America. The purpose of the Commission’s visit was to evaluate the human rights conditions of unaccompanied migrant children and families. [IACHR Press Release] During the visit, the Commission was unable to visit two detention centers (the Border Patrol Station in McAllen, Texas and the Rio Grande Valley Central Processing Center) because the U.S. Border Patrol and Immigration and Customs Enforcement (ICE) refused to grant the delegation “free and full access” to the facilities. [IACHR Press Release]

The Commission expressed concern over the automatic detention of immigrants, the lack of criteria to determine if families should be released on bond, and the presumption applied by the U.S. Department of Homeland Security that the child must establish his or her need for international protection. The Commission noted that bond was regularly denied or set at unaffordable prices, upwards of $15,000. The Commission reported that there was a severe shortage of legal representation, and that the conditions in the detention centers often generated further trauma for migrants. [IACHR Press Release]

The Commission received allegations of “grave violations of the rights to: liberty, personal security; family life and protection of the family unit; protection of the child; protection from arbitrary arrest; fair trial and due process of law; equality before the law; seek and receive asylum; and the principle of non-refoulement and the right to be free from persecution or torture.” [IACHR Press Release] The Commission also expressed disappointment that violations which it had previously identified during its 2009 country visit were still continuing. See generally, IACHR, Report on Immigration in the United States: Detention and Due Process (2010).

The Commission recommended that the U.S. establish measures to identify migrants who need special protection, provide greater access to legal representation, and ensure that families and unaccompanied children are represented by attorneys in removal proceedings. The Commission advocated for the use of detention centers as a last resort, and advised the U.S. legislature to adopt measures ensuring that children and their families are not placed in detention centers. [IACHR Press Release]

The Commission will be holding two hearings on migrant children’s human rights during its 153rd Period of Sessions from October 27 through 31. One hearing will focus on the U.S. and the other will address the region. The Commission will also prepare a detailed report on its visit to the United States. [IACHR Press Release]

The United States has not ratified the American Convention, but as a Member State of the Organization of American States (OAS), it has pledged to uphold the American Declaration. Although the American Declaration was not intended to be a legally binding instrument in and of itself, the Inter-American Commission and Court view it as a source of international legal obligations for all OAS Member States, by virtue of the OAS Charter.

Additional Information

For background information on the arrival of unaccompanied minors in the United States, see the Council on Foreign Relations’ article, The U.S. Child Migrant Influx. For more information on the vulnerability of migrants in Mexico, see IJRC’s previous news post.