Legal representation of unaccompanied minors in the face of legislative revisions

The latter recalls that a guardian must be appointed on the identification of an unaccompanied minor until he reaches adulthood or his departure from the territory. Twenty years after Switzerland's ratification of the CRC, can Switzerland truly boast that it has taken sufficient and adequate measures to meet such international requirements?

From the function of the legal representative…

In accordance with Art. 17 para. 3 of the Federal Asylum Act (LAsi) and Art. 7 para. 2 to 4 of the Asylum Ordinance No. 1 on Procedural Aspects (OA 1), the concept of legal representation has been vague since the revision of the LAsi in 2008. Prior to this date, OA 1 required cantons to enforce protective measures under the Swiss Civil Code. Since then, OA 1 reinforces the idea that the support person can represent the interests of the UMAs if it is impossible to institute a curatorship or guardianship. Despite the subsidiary and transitional character that emerged from it, it signaled that in practice it was interpreted as a sufficient measure.

Art. 7 para. 3 in OA 1, introduced in 2015, clarified the tasks of the support person through a non-exhaustive list. It is necessary to recall that the scope of his/her duties must be interpreted in the sense of a broad representation as conceived in the Dublin III Regulation. This requires that the representatives represent and/or assist the UMAs to ensure their best interests (Art. 2(k) and Art. 6 para. 2 Dublin III). The Swiss jurisprudence (JICRA 2003/1 and JICRA 2006/14) has also clarified the notion of a support person by insisting that his role is multifaceted and similar to that of a guardian or trustee. This includes not only the defense of the interests of the UMAs and its representation during the asylum procedure, but also administrative and organizational tasks (supervision, follow-up procedures, guarantee of possible medical treatment, etc). Beyond the knowledge that is required in the field of migration law, the support person must also possess qualifications in social pedagogy and have knowledge of a child’s right to protection in order to effectively guarantee his/her best interests.

to his assignment…

The revision of the LAsi, which came into force in 2008, also specified the moment the support person has to take his/her role. According to art. 17 para. 3 of LAsi, the assignment of this support person takes place on the one hand during the proceedings at an airport or during the stay in a reception and procedure center if determining factors for the asylum decision are made, on the other hand after the cantonal allocation of the UMAs and throughout the entire procedure. Art. 7 para. 2bis OA 1 (whose idea was introduced in 2015 through Art. 7 para. 3 OA 1) specifies that the support person must be designated already at the time of the first summary hearing, generally held at the reception and procedure center or the airport.

Even if such clarifications are well received, practice shows that their application is not always ensured. The assignment of a support person often takes place only after the first hearing. In this case, he/she legally takes up this role too late. In order to ensure the best interests of the child, the support person should be introduced at the latest after the child has filed an application for asylum. This allows the child to be informed in a timely and adequate manner about the asylum procedure and can receive appropriate social support.

through the adaption of his new role.

The revision of the LAsi accepted by the population on June 5, 2016 clarifies the timing of the assignment of a legal representative. Indeed, UMAs who reside in a Confederation Center or at an airport will benefit systematically and for the duration of the procedure of free legal representation, who will also bear the role of the support person (Art. 17 para. 3(a) of the LAsi revision). The latter is then in a position to assume its function in a professional manner from the beginning of the procedure. In all cases, a legally qualified person will carry out this role.

This clarification represents a notable improvement, however showed some limitations during the test phase in Zurich. Indeed, legal representation cannot be properly performed because of the limited capacity that does not adequately fulfill both functions. Extended representation for all UMAs should therefore be put into place, through the rapid implementation of a guardianship or curatorship in addition to legal representation.

The challenges remain until it enters into force in 2019 and given the scope of the tasks that the support person must assume,. The means available vary from one canton to another and are often not sufficient for the support person to be able to perform their tasks correctly. There are also major differences in the qualifications of mandated persons. Some of them do not have sufficient legal expertise and limited knowledge of the issues involved in the asylum procedure. Others do not have the necessary resources to ensure the social assistance of the young person. In order to improve coordination between the cantons, the Swiss Refugee Council (SRC) has set up a national network for people responsible for the legal representation of unaccompanied minors (support persons/guardians/trustees). In this context, regular exchanges are planned with the aim of perfecting cantonal practices and creating links with legal advisory offices as well as with representatives of aid organizations. The SRC is ready to offer wide support, both in terms of general legal asylum issues, as well as with concrete and structural issues.

At the same time, the Swiss Foundation of the International Social Service (ISS) is also committed to improving the quality of legal representation, in particular through the cantonal mapping of services for the care of unaccompanied minors, which allows to highlight, once again, good practices. These various actions are undertaken on the basis of the recommendations of the Conference of Cantonal Directors of Social Affairs (CDAS) on unaccompanied minors and children in the field of asylum, which were published in May 2016 that aims for the harmonization of measures at the legal representation level. These tools can improve the legal representation of UMAs and contribute to greater respect for their superior interests as foreseen by the CRC, ratified 20 years ago in Switzerland.

Article written by Lauren Barras (SRC) for ADEM. 04.2017