Is Integration the Only Factor to Consider in Children’s Hardship Cases?

The recent Motion for a coherent legislation concerning “sans-papiers” calls for legislative measures to further specify the criteria that should be applied in hardship cases for undocumented migrants, who have lived in Switzerland for a long time and who have “integrated” themselves, especially families with children attending school. However, is integration the only factor that should be considered in such cases, particularly when children are concerned?

An Opportunity to Focus on Children’s Rights and the Best Interests of the Child

The debate on this Motion presents an opportunity not to simply focus again on questions of integration, which have already been the subject of much scrutiny, but rather to finally introduce the best interests of the child (l’intérêt supérieur de l’enfant; Grundsatz des übergeordneten Kindeswohls (Kindesinteresses) often referred to simply as “Kindeswohl”) in the sphere of Swiss migration law. The best interests of the child is a key principle of the United Nations Convention on the Rights of the Child (CRC), which the Swiss government ratified in February 1997 and which came into force in Switzerland on 26 March 1997. According to the CRC, “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

Indeed, in its dispatch at that time, the Federal Council recognized that the CRC’s best interests principle should apply to all Swiss laws concerning children and that, therefore, it is more comprehensive than the corresponding concept of Swiss law. Furthermore, the Federal Council stressed that, following its ratification, the CRC should be one of the guidelines for the interpretation of the best interests of the child in Switzerland and that this would require application in legislation and practice to bring more attention to this undisputed principle. Since the ratification of the CRC over 20 years ago, significant changes have been made in select areas of Swiss law, for example in the Swiss Civil Code, to promote children’s rights such as the right to be heard and consideration of the best interests of the child – but the best interests principle has yet to be incorporated into Swiss migration law.  Swiss legislators now have an opportunity to ensure that the best interests of the child will be made a primary consideration in future legislative and policy amendments concerning the regularization of “sans-papiers” in Switzerland.

New Authoritative Guidance on the Best Interests of the Child in Regularization Measures

Swiss legislators can now draw upon new authoritative guidance concerning how the best interests principle should be applied for children in the context of migration. In November 2017, two United Nations treaty-monitoring bodies – the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families – adopted two new Joint General Comments on the general principles and State obligations regarding the human rights of children in the context of international migration. These build upon and complements earlier guidance on the best interests of the child, published by the Committee on the Rights of the Child in May 2013.

Concerning “sans-papiers” children, the Committees acknowledge in their recent guidance the negative impacts that having an insecure and precarious migration status may have on children’s well-being. Therefore, the Committees recommend that States ensure that there are clear and accessible procedures for children to regularize their status on various grounds such as length of residence. In this regard, Operation Papyrus in Geneva is a pragmatic step in the right direction.

However, the Committees also underline that the best interests of the child should be taken into consideration when States address the situation of undocumented migrants, including through the implementation of regularization mechanisms. Within regularization measures, it is necessary to carry out a “Best Interests Determination” because such a decision will likely have fundamental long-term consequences for the child concerned and the fulfilment of his or her rights in the future. With this aim in mind, the Committees advise that States should develop and put into practice a “Best Interests Determination” procedure aimed at identifying and applying comprehensive, secure and sustainable solutions for both unaccompanied migrant children and children in families. Such solutions cater to the long-term best interests and welfare of the child by ensuring that the child is able to develop into adulthood, in an environment that will meet his or her needs and fulfil his or her rights as defined by the CRC.

Thus, integration is not the only factor that should be considered in hardship procedures. In future legislative and policy measures concerning the regularization of “sans-papiers” in Switzerland, the best interests of the child has to be a primary consideration.

Jyothi Kanics
Doctoral student, nccr – on the move, University of Lucerne

Sans-Papiers in Switzerland
On January 26, 2018, the Commission for Social Security and Health of the National Council submitted a Motion calling for coherent legislation on “sans-papiers”. The Motion calls, among other things, for access restrictions on social insurance, a state-funded contact point in the event of illness, and intensified prosecution of employers, employment agencies and landlords of “sans-papiers”. It further calls for facilitated data exchange between government agencies, as well as the specification of hardship criteria. This blog series picks up on certain elements of the Motion and discusses them in the context of current scientific findings. the Motion was withdrawn on 18 May 2018.

References

United Nations Committee on the Rights of the Child, General comment No. 14 on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC /C/GC/14 (also includes link to French version).

Joint general comment No. 3 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 22 of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, 16 November 2017, CMW/C/GC/3-CRC/C/GC/22 (also includes link to French version).

Joint general comment No. 4 of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return, 16 November 2017, CMW/C/GC/4-CRC/C/GC/23 (also includes link to French version).

Safe & Sound: What States can do to ensure respect for the best interests of unaccompanied and separated children in Europe, October 2014.

Safe & Sound: Welche Maßnahmen Staaten ergreifen können, um das Kindeswohl von unbegleiteten Kindern in Europa zu gewährleisten, October 2014.