Barn i asylsaker. Evaluering og kartlegging av hvordan barns situasjon blir belyst i Utlendingsnemndas saksbehandling, herunder høring av barn
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This study evaluates how the Immigration Appeals Board (UNE), an independent appeals body, investigates children’s situation in asylum proceedings according to The Immigration Act of 2008. Cases included in the study are limited to children who were younger than 18 when the Board handeled their case. Both unaccompanied minors and children applying for asylum with their caregivers are included in the case material. The mission We have assessed to which extent the Board examines children’s situation: as part of case preparations or during the Board meeting, and how children are heard, if there is a need for the Board to hear children more often and in different ways than it does today. We have also considered the staff’s child-relevant expertise and described the Boards ongoing internal process to improve such competence. We have evaluated whether procedures and routines for hearing children and the examination of the their circumstances fulfill the obligations pursuant to the UN Convention on the Rights of the Child Article 12, the Immigration Act and other relevant regulations, and if there is a need for changes in the legal framework. Data We have interviewed 15 caseworkers and board leaders, and analyzed 18 asylum cases, including all case documents. We will stress that this is a qualitative study. The sample is small compared to the large number of asylum cases handled by the Immigration Board annually (9565 in 2012). Using such an in-debt qualitative approach has given us valuable insight into the vast variety of aspects in the cases, and a unique understanding of the complexity of the individual cases, as well as the asylum field in general. The Immigration Board is very attentive to the special circumstances and issues regarding children in asylum cases. We encourage the Board to continue its internal process to enhance their expertise regarding children and child matters. We also support establishing a separate child unit as a resource group within the Board. Additionally, we recommend that the Board employ a health expert as a senior advisor, to assist caseworkers and board leaders in complex asylum cases that involve health related matters. Pursuant to the UN Convention of the Rights of the Child Article 12, children who are capable of forming their own opinions have a right to express their views in cases affecting them. According to our information, the Norwegian Directorate of Immigration (UDI) is implementing the right to be heard, for children mainly from the age of seven. Children below the age of seven will as a rule not be offered the possibility to be heard directly, but indirectly through their parents. Parents may act as their child’s representatives in some cases, but it should be considered individually whether the parents are capable of presenting the child’s views and situation. If the child later, during the case proceedings, turns seven, he or she will not necessarily be heard by the Board either. This practice may lead to a group of children being excluded from expressing their views according to Article 12. We recommend several measures to secure all children the right to be heard in asylum cases, as: 1) A systematic collection of board leader’s experiences with hearings with children. 2) Work to secure good preparation and follow-up of the child before and after hearings /conversations if needed. 3) Explore and implement alternative forms of hearing/dialogue with children. 4) Launch a pilot project on hearing children in the Board, including children who have not been heard earlier in the case. 5) Formulate a standard letter to lawyers about different ways of hearing and potential child representatives. Results We found that children in some cases have information of great importance for the case that is not revealed until the Board handles a request for changing an earlier decision. In some cases, that may happen several years after the UDI made its decision. A question is, whether such important information could have come through at an earlier stage in the proceedings. We question whether UDI, which handles the asylum applications initially, conducts its proceedings in a manner that permits children who might be traumatized from harmful experiences in their home countries, to feel safe enough to tell about the traumatic events. In general, it is necessary to continue the work to identify especially vulnerable children (and adults) in asylum proceedings. We find that caseworkers and leaders in the Immigration Appeals Board make a great effort to collect further information in cases where that is necessary, due to insufficient information when they receive the cases. In general, we cannot find that the Board is not fulfilling its obligation to enlighten the case. An impression though, is that the cases contain more information about the child’s situation during their stay in Norway, than about the child’s situation before the flight or after a potential return to the home country. Only a few of our informants proposed changes in the legal framework, or expressed discontent with the regulations. Nevertheless, we have identified several aspects of the regulations that cause doubts of interpretation and dilemmas in practice. Those aspects are for example: 1) What kind of hearing will fulfill the requirements in The UN Convention Article 12 (oral versus written hearing, direct versus indirect hearing). 2) To what extent might general immigration control arguments be relevant when considering the lower thresholds of residence permit decisions for children? 3) What should be considered child-specific forms of persecution and human rights violations, in comparison to adults? 4) What does it mean that the best interest of the child shall be a primary consideration, and how to secure implementation of the best interest principle? Reccomendations We recommend clarifying the regulations in several areas, with relevant interpretation suggestions and illustrating examples that can serve as guidelines for caseworkers and board leaders. One of the most important specifications must emphasize that all children have the right to be heard, no matter their age, and that hearings as a main rule are to be conducted orally.Dette er en kvalitativ studie av hvordan barns situasjon blir belyst i Utlendingsnemndas saksbehandling, herunder hvorvidt barn blir hørt i saken. Et hovedinntrykk er at saksbehandlingen er grundig og barns situasjon blir godt belyst, særlig når det gjelder oppholdet i Norge. Situasjonen før flukt, og ved eventuell retur, er i noen saker underbelyst. Praksis viser at ikke alle barn tilbys en barnesamtale eller høres på andre måter i saken, noe som ikke er i tråd med FNs barnekonvensjon. Rapporten inneholder en rekke vurderinger av og anbefalinger for praksis, herunder alternative former for høring av barn, og forslag til justeringer i regelverket for å styrke barns rettsstilling i asylsaker. Rapporten er utført på oppdrag fra Justis- og beredskapsdepartementet.