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Malmö University Master thesis

IMER 41-80 2006-06-02

Nina Plato Supervisor: Maria Appelqvist

Examiner: Philip Muus

The child-perspective

in the Swedish asylum-process

How the child-perspective comes to expression in the asylum-process and the complexity of implementing the decision of having a child-perspective

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Abstract

My main purpose with this thesis has been to look at the child-perspective and how it comes to expression in the Swedish asylum-process, above all in the Swedish Aliens Act and its implementation in the work of the Migration Board in its handling and decision-making of asylum-cases. I have also done a historical review to look at when and why the

child-perspective first came to expression and how it has evolved. Furthermore, I have looked at the difficulties in implementing the decision of having a child-perspective in the asylum-process and have there taken in different factors that affect the implementation of a decision in the daily work. I have used State official reports and Governmental bills that are written before alterations in the legislation and other literature about the child-perspective and the refugee-politics. In order to not only get a study of words of an Act I have also interviewed

representatives from the Migration Board, the Red Cross and Children in Waiting Project and a public counsel. What I in particular discuss is why the child-perspective still is not

successfully implemented and what makes it so difficult to carry through such a decision. Is it the decision itself, the migration authorities or is it because of the area in which it should be implemented, i.e. the asylum-process?

Sammanfattning

Jag har i den här uppsatsen velat se på begreppet barn-perspektiv och hur det kommer till uttryck i den svenska asylprocessen framför allt i den svenska utlänningslagen och

tillämpningen av den i migrationsverkets arbete med att handlägga och besluta i asylärenden. Genom att göra en historisk tillbakablick har jag tittat på när och varför barnperspektivet uttrycks och hur det utvecklas. Jag har också tittat på svårigheterna med att implementera beslutet att ha ett barn-perspektiv i asylprocessen och då tagit in olika faktorer som påverkar implementeringen av ett beslut i det dagliga arbetet. Jag har använt mig av SOU-rapporter och propositioner som finns skrivna inför lagändringar och övrig litteratur som berör

barnperspektivet och flyktingpolitik. För att inte enbart få en studie av lagtext utan få lite andra perspektiv på barnperspektivet och asylprocessen har jag också gjort intervjuer med representanter för Migrationsverket, Röda Korset och Barn i Väntan projektet. Vad jag framför allt diskuterar ar varför barn-perspektivet fortfarande inte är framgångsrikt implementerat och vad som gör det så svårt att genomföra ett sådant beslut. Ligger det i beslutet som sådant, migrationsmyndigheterna eller ligger orsaken i området det ska implementeras i, d.v.s. i asylprocessen?

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Acknowledgement

I would like to start to thank my supervisor, Maria Appelqvist, for her support and for pushing me in the right direction when writing this thesis. I would also like to express my gratitude towards my interviewees at the Migration Board in Malmö, the public counsel, the

representative at the Swedish Red Cross and Children in Waiting Project as well as the representatives from the various NGOs that shared their thoughts and feelings about the Swedish asylum-process and gave me their perspective on the issue. Without their

cooperation I would not have been able to write this thesis. Further I want to thank the “transit group” for allowing me to participate as a participating observer. Taking part in their work has given me invaluable knowledge of the asylum seekers’ situation that I would not have received otherwise.

I could not have completed this thesis without any of the persons mentioned above, so from the bottom of my heart, thank you so much!

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Table of Contents

Introduction

1

1.1 Purpose and questions at issue 3

1.2 Limitations 3

1.3 Method and material 4

1.4 Previous research 8

1.5. Disposition 12

Theoretical Perspectives

13

2.1 Implementation 13

2.2 Factors that can influence application of political decisions 15 2.2.1 Authorities: knowledge, resources and attitude 15 2.2.2 Related institutions, intra- and inter-organizations and networks 15

2.2.3 Changes in conditions 16

2.2.4 The policy formation: the decision’s precision 16

2.3 Juridical angle of approach 17

The Asylum-process

18

3. Refugee-Law and Children

19

3.1 The background to refugee-law 19

3.2 The concept of refugee 20

3.3 The Convention on the Rights of the Child (CRC) 22 3.4 Children in the Geneva Convention and Child Convention 25 3.5 The Child perspective in the Alien-legislation 26

3.6 The Aliens Act of 1989 27

3.7 Ratification of the Convention on the Rights of the child 27

3.8 1997 Modifications 31

3.8.1 The best interest of the child 33

3.8.2 The best interest of the child in relation to other interests 35

3.8.3 Humanitarian reasons 37

3.9 The new system 38

3.10 Concepts in laws and conventions 39

3.11 Conclusion 41

4. Implementing Procedure

42

4.1 To seek asylum in Sweden 43

4.2 The Migration Board 44

4.3 The Aliens Appeals Board 47

4.4 Factors that affect the implementation of a political decision 49

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5. Consequences of the Refugee-legislation and its implementation 61

5.1 How the legislation affects the children 61

5.2 How the refugee experience affects the children 61 5.3 The asylum process for children in asylum-seeking families 63

5.3.1 The right to express views 65

5.3.2 Right to both parents 68

5.3.3 Accommodation, education and healthcare 69

5.3.4 In need of protection vs. Humanitarian reasons 72

5.4 Conclusion 75

6. Concluding Discussion

76

7. List of References

80

Appendix 1 – Concepts and Organizations

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List of Abbreviations

BRIS - Barnens Rätt i Samhället BUP - Barn och Ungdomspsykiatri CFA - Center för Asylsökande

CRC - UN Convention on the Rights of the Child DO - Diskrimineringsombudsmannen

LMA - Lagen om Mottagandet av Asylsökande m fl. NGO - Non-Governmental Organization

PTSD - Post Traumatic Stress Disorder

SOIR - the Swedish Organisation for Individual Relief SOU - Statens Offentliga Utredningar

UN - United Nations

UNHCR - United Nations High Commissioner for Refugees UNICEF - United Nations Children’s Found

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Introduction

Thousands of people, children and adults, arrive in Sweden each year in an attempt to seek refuge from war and persecution. Many of these, especially children, are harmed in the process. Some people argue that the long waiting time is causing depression and breakdown of asylum-seekers. But also the reception and treatment of these people, which is beneath contempt, is of great significance to their well-being.

By ratifying the Convention on the Rights of the Child (CRC), Sweden committed itself to follow it, which means to “respect and ensure the rights proclaimed to each child within the[ir] jurisdiction. A child who takes refuge in the territory of a State party benefits as much from its provisions as child nationals of that country”.1

During the late 1990’s and beginning of 2000 the situation of asylum-seeking children has been a lively debated subject. A reason for this is that children are more exposed and vulnerable than adults and especially as asylum-seekers they need attention and care, which they have not been given in sufficient extent. The best interest of the child should be weighed in all parts of the asylum process, that is, in the reception of asylum-seekers, in the investigations, in the decision makings of asylum reasons and regarding a possible refusal of entry.2

When handling cases involving children, the Migration Board should, according to the Aliens Act, follow the principle of always acting in the best interests of the child and take particular account of the children’s plight and find out what they have to say about their lives prior to their arrival in Sweden and about their need for protection. This is also stated in reports, such as Children in Alien Processing Cases3 and in fact-sheets written by the Migration Board as well as in the information on their web site.

In the process, asylum-seekers are asked to give reasons for why they should stay and not be sent back. But although children often have their own reasons for staying, they are seldom asked about their personal reasons for protection. Many children, although having reasons for asylum receive resident permit on humanitarian grounds because they have developed severe psychological and/or psychosomatic disorders while waiting for a decision. Even if the children come with their families, the children need to be treated as individuals and as such with respect.

1 Goodwin-Gill 1998 p. 258 2 Regeringen: www.regeringen.se 2004-12-08 3 Migrationsverket: www.migrationsverket.se

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Children who are forced to flee because their human rights are violated come to a new country and a new society with a completely different culture, language, tradition and religion, in which they are not always welcomed in a humane way. As children they are in a critical period of their life where they form an identity. This is not an easy thing to do in a new society especially not when at the same time they are waiting for a decision on whether or not they can stay. During this process they are torn between hope and despair and many end up psychologically damaged for life.

Considering the facts that Sweden was one of the countries that actively worked for the existence of the Child Convention and was one of the first to ratify it, one could think that the best interests of the child always should be in the legislation and in the exercise of authority in Sweden. However, according to reports from for example the Children’s Ombudsman and Save the Children this is not always the case. It is even so that the best interest of the child is too often set aside and the principle concerning respect for the child’s own views is more an exception than a rule. I am here especially thinking of the many asylum-seeking children who arrive together with their family and are therefore seen as a part of the family and thus are not heard.

Bearing in mind all the alarming reports from NGOs and news articles about children, children who have to wait a long time for a decision and finally get a negative one together with the growing number of aphetic children, I find it both interesting and relevant to investigate the Swedish asylum-process in relation to the child-perspective. The issue at stake is a very complex one, therefore an analysis of the different aspects of the asylum-process and how it affects children is an interesting challenge.

With reference to resent events together with news reports and research done in the field I argue that the child-perspective is not quite manifested in the Swedish asylum process. My aim with this study is therefore to conduct an empirical investigation and analysis of the asylum-process and to highlight the (complex) problems involved with the handling of asylum-applications made by families with small children.

The introductory part will continue with the purpose of this study, the limitations and the method and material used. Then a brief discussion of previous research in the area will be presented. After that follows a disposition of the rest of the study. This is a study where a great number of complex concepts are used and a number of organizations, both governmental and Non Governmental Organizations (NGOs) are referred to. Therefore the most important ones are listed and defined in appendix 1.

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1.1 Purpose and questions at issue

The purpose of this essay is to investigate the different aspects of the asylum process concerning asylum seeking families in order to evaluate the different problems in connection with children in asylum-seeking families and to find out if and how the child perspective is taken into consideration in the alien-legislation and its implementation. In the legislation, I will focus on the portal clause4 about the best interest of the child and the paragraph about the right for the child to express him or herself and for their views to be respected. I will also look into the handling of the asylum cases and the reception system to see how it affects families who seek asylum and especially the children in these families. My aim is to shed a light on the fact that many asylum-seekers and especially children arriving together with their families seem to be psychologically harmed during the process of their asylum case.

The main research question is: To what extent is the child-perspective taken into consideration in the Swedish asylum-process and what happens with children accompanied with their parents in this process? The focus is on the child-perspective in the refugee legislation and its implementation, such as the portal-paragraph in the Aliens Act.

1.2 Limitations

I have chosen to limit this study to children who arrive together with their family to seek asylum in Sweden. The main reason why I have chosen children who are accompanied by their parents is because they are not being paid as much attention to as children who arrive unaccompanied. However one need to be reminded that parents and families often arrives from a situation of severe traumas. And waiting for a decision can in itself be a trauma, which can worsen the suffering for these families. They are therefore not able to give their children the support they need. Children need to talk about the reason for the flight in order to understand and move on or else they will not develop in the best way. It is also clear that children, even those arriving with their families, often have their own reasons for seeking protection, according to various Swedish NGO’s, for instance Save the Children and the Red Cross. My curiosity lies under what circumstances the children’s particular reasons are heard by the implementing authority the Migration Board.

Furthermore, I do not lay claim on doing a complete study of the situations of the families. Therefore I have not made any in-depth interviews with asylum-seeking families.

4

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Since I for methodological, functional and ethical reasons, could not conduct these interviews the section about the consequences of the refugee-legislation and its implementation, will be based on previous literature, informal discussions with asylum seekers and some of the interviews with persons who meet these families in their work. In my study I have chosen to interview people at the authorities and organisations that the asylum-seeking families come in contact with under the proceeding of their cases.

Another important limitation is that I have only interviewed staff at the Migration Board in Malmö, which means that I only have in-depth information of the particular situation in Malmö, Sweden.

1.3 Method and Material

This essay is based on a qualitative analysis of the different aspects of the asylum-process. It is a multi-disciplinary study since information from a historical, legal, psychological, medical, and sociological perspective is used. A thorough investigation is done of, firstly, the legislation, i.e., relevant parts of the Aliens Act, the LMA, the Child Convention and Geneva Convention; secondly, the implementing authorities, which are the Migration Board and Aliens Appeals Board and their way of working; and thirdly the consequences of the legislation and its implementation, that is, the experience from the asylum-seeking children and their families described in the literature. In the analysis I have used data and information from various primary and secondary sources, such as books, journals, reports, articles, Internet-pages and interviews as well as participatory observations.

Since I want to examine the legal and political aspects of the asylum-process to investigate if there is something in the law and/or its implementation that causes these children not to be seen and heard which in its turn causes harm, my primary sources will be the Aliens Act and its preparatory work as well as the CRC. Further, the Geneva Convention regarding the Status of Refugees (1951) and the complementing Protocol (1967) and books about the law and conventions is also used in a great extension.

Other important literature used is, Refugee Children: Guidelines on Protection and Care, the Handbook on Procedures and Criteria for determining Refugee Status, Reports to the UN Committee on the Rights of the Child from the Government, the Children’s Ombudsman and Save the Children.

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When investigating the Aliens Act I have used preparatory work such as The States Official Reports5, Governmental Bills (propositioner) and bills (motioner). When it comes to the Child Convention I have looked at its history to find out its purpose and what it says about relevant issues. In the analysis I look at what the Aliens Act and the CRC say about matters that concerns asylum-seeking children and whether or not the Aliens Act is compatible with the CRC. Here I have also used various literatures about it as well as interviews. In the study, I compare the law with its praxis, i.e. the implementation of the Swedish Aliens Act, as well as the law and its praxis with the intentions behind the law.

With preparatory work is meant official documents that are drawn up before a founding of a law or an alteration in an Act. These can contain accounts of the existing law within the area concerned, motives for alterations, standpoints the lawmaker has to take to existing problems, recommendations on how the law should be interpreted and implemented. When interpreting or discussing a law, it is vital to look at its preparatory work because the law itself is often very short. In Sweden, the preparatory work is next to the law the most important legal source.6 Other legal sources are Case law and juridical doctrines, which is juridical handbooks and textbooks. These are of great value because they give an accessible overview over the juridical regulations and sources available in a certain area.7

When it comes to how the Migration Board and the Aliens Appeals Board is working, I am interesting in how the staff is handling the applications, the decisions and the reception of the asylum-seeking families as well as how they look at the decision of having a child-perspective in the asylum-process and how they understand the concept of child-child-perspective. I look at both the Migration Board and the Aliens Appeals Board but the focus lie on the former because this is the central authority in alien cases and because the Aliens Appeals board was replaced with a new appeal procedure in the end of March 2006. Most of the information on the authorities derives from public information on their web-site and from my interviews.

To understand the implementing processes I have used articles and books on implementing theories. When studying the implementation of a political decision, such as the decision to have a child-perspective in the asylum-process, from a bottom-up perspective it is an advantage to use an inductive method8. This means that the researcher steps into the reality

5

Statens Offentliga Utredningar, SOU

6

Lehrberg 1996 p. 86

7

Ibid, p. 113

8

Draw general conclusions from the individual cases (translation from the Swedish Dictionary Bonniers Svenska Ordbok, 2001)

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and map out, mostly through interviews, whom the important actors are and how they look at the policy-problem.9

To gain better insight to how the regulations of the best interest of the child and the right of the child to express him or herself have been applied in practice, I have chosen to conduct in-depth interviews with important actors in the asylum-process. On the one hand I have interviewed staff at the Migration Board, that is, investigators, decision-makers and persons in charge of handling cases, as well as one public counsel. On the other hand I have interviewed a representative from the project Children in Waiting10 and a representative from the Swedish Red Cross (Region South) in order to get a deeper understanding of the situation of asylum-seeking families. Additional to this I have talked to representatives from FARR, Swedish Save the Children and SOIR. The reason I chose these NGOs is that they often come in contact with both asylum seeking and refugee families and work actively in supporting them during appealing of asylum cases.

My selection is limited to those who have had the time, possibility and will to be interviewed. Some of the informants have I known of and others have come to my knowledge through the snowball-method, which means that one interview generates into other interviews. Hence names mentioned in one interview, usually the first one, are followed-up. Using the snow-ball method is according to Svenning11 an excellent way of choosing interviewees.

From the Migration Board I have interviewed both investigating case-officers and decision-making officers who have either a juridical or social science background at the ‘asylum-unit’ as well as one ‘children case-officer’ (barnhandläggare) with a pedagogical background at the ‘Reception unit’, in order to get as good range as possible. Furthermore, I have used participative observation at transit. In the role as a transit visitor I have visited transit in Malmö where I have observed, talked to and informed the asylum seekers about the asylum process. As an observer I have been able to see how the asylum seekers live at transit, which has been invaluable knowledge that I would not have received otherwise. It has also given me the possibility to understand the situation of the asylum-seeking families. Yin writes that “participant-observation is a special mode of observation in which you are not merely a

9

Premfors 1989 p. 125

10

Barn i Väntan, BIV

11

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passive observer. Instead, you may assume a variety of roles within a case study situation and may actually participate in the events being studied”.12

An important factor to consider when conducting personal interviews is the interviewer effects, that is, my presence can influence the responses. The interview is a social situation, where the interaction between the interviewer and the interviewee can constitute a serious source of error. The risk is great that the respondent adjusts his or her answer in the direction the interviewer wants to. Another danger with personal interviews is that the personal views of the interviewer colour the answers. Another side effect is that the interviewer may interpret the responses incorrectly.13 To minimize this risk I have asked the same questions to my interviewees, with some variations on the follow-up questions. I have done this so that I can compare the answers. Since the field of study is small the interview could be sensitive for the respondents in my study. I have therefore chosen to let all the respondents to be anonymous in the essay.

The literature I have used is carefully selected from the University libraries, from different databases on the Internet as well as from Inter- and Non Governmental Organizations working with and for children and refugees. To find relevant literature I have used search-words such as asylum, asylum-seeking families, asylum-policy, refugee-children, refugee-law and refugee-policy. Parallel I used references from the literature identified in the search.

If one arrives at the same result after repeated investigation or compares the result in similar, but independent, investigations, it means that the result has high reliability. This is what I strive for as I go through the literature. Since the majority of the material are reports and studies from experts with long experience in their respective field, I consider that high reliability exist. Researchers and authors who write about these matters are often connected to UNHCR or NGO’s and are therefore very personal and might even be seen as biased. However, I do not consider these sources more biased than the various governmental reports I use. Instead they balance each other. They look upon the matters concerned from different perspectives. Thomas Hammarberg for example is, since 1991, a member of the United Nations Committee on the Rights of the Child and involved in the Swedish Save the Children, which makes him an expert on these issues.

12

Yin 2002 p. 93f

13

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1.4 Previous research

Previous research in relation to asylum-seeking children who arrive together with their families is limited. I have not been able to find research dealing with all aspects of the asylum-process. Neither have I come across research specifically about children who arrive together with their families. The literatures I have found have primarily concerned children in hiding, unaccompanied children, and asylum-children with PTSD. There has been done some research about the Swedish refugee law and policy, about asylum-seeking children and their needs and rights. Since this research discusses some of the matters I am investigating, I have been able to use this literature.

Studies and reports from various NGO’s however sometimes discuss the central theme of my study namely the best interest of the child in alien-cases. One of those is a study from the Children’s Ombudsman14 on the Migration Board’s praxis in asylum-cases with families as its purpose was to investigate to which extent the Migration Board considers the regulation about the best interest of the child and the right for the child to express its views in asylum-cases. One of the conclusions that can be drawn from this study is in how small extent children are seen as participating individuals in the asylum-process. In most cases they are seen as appendage to their parents and not as individuals. Further, clearer guidelines regarding the handling of family-cases are required. In this way one want to try to establish the child-perspective concerning all asylum-cases involving children and thereby make an attempt to counteract different treatment of these children in the asylum-process.

Another interesting study about children’s own reasons for asylum was based on an investigation of 87 asylum-cases involving children. It was written five years after the inclusion of the best interest of the child and the right for the children to be heard in the Aliens Act and it shows that children’s views are still not visible in the asylum-investigation. It states that only 20 percent of the children in families were heard and that although the children had own reasons they were seldom accounted for in the motives for the decisions. Save the Children’s centre for children and adolescents have noticed that an increasingly number of asylum-seeking and refugee children have talked about own experiences of assaults, torture and imprisoning. Despite this most of the asylum-seeking children are not acknowledged as refugees but residence permit is in most cases given on humanitarian grounds instead. A granting as refugee can have a psychological significance since the experiences are judged as trustworthy and meaningful, a reaction that is absent in those cases

14

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refugees obtain residence permit on humanitarian grounds. The study resulted in a number of suggestions to improve the handling of asylum-cases involving children. If it is not unsuitable all children should be heard individually; asylum investigation ought to be done by personnel with special child competence in a child-adapted environment; it is also important that the staff at the Migration Board and the Aliens Appeals Board increase their awareness and knowledge about that persecution of children could be different than persecution of adults.15

The Migration Board has also published a report16 about children in alien-cases. It is written with the best interest of the child in mind, which according to the report means that the judgement of when and how a child should be heard in an alien-case shall be done with the consideration of the best interest of the child and not for the authority’s need of information. The main purpose with this report has been to integrate a child-perspective in processes involving children. The authors of the report have reached a number of conclusions and from them formed suggestions on measures that need to be taken. These suggestions include the need for a model that makes it possible to identify whether or not the children arriving together with their parents have their own reasons for asylum in one investigation occasion; the importance of improving the way the decisions are written so that it will always be clear how the Migration Board has considered the Child Convention in their decisions; the need for education about the Child Convention and its significance in the alien-legislation as well as the need for a basic competence for everybody who works with handling of asylum-cases so that they can carry through asylum-investigations with children.

Some of the research about the asylum-process has been done in order to do alterations in the Aliens Act. In these cases committees have done State official reports. Relevant for this essay are a report17 from the Refugee Policy Committee with the purpose of looking over Swedish refugee-politics and the reports from the Child Committee about the Aliens Act in relation to the Child Convention and about the best interest of the child as a primary consideration18. In their report, the Refugee Policy Committee put forward a number of proposals, including proposals about a coherent global refugee-policy, cooperation in a global perspective and the immigration to Sweden. Also children issues are touched upon in these matters although these are more elaborated upon in the reports from the Child Committee. The work of these two committees is further discussed in the analysis.

15

Juhlén 2003

16

Children in the Alien-processing system (Barn i Utlänningsärenden) see www.migrationsverket.se

17

SOU 1995:75 Swedish Refugee-Politics in a Global Perspective (Svensk flyktingpolitik i globalt perspektiv)

18

SOU 1996:115 ”Barnkonventionen och Utlänningslagen” and SOU 1996:116 ”Barnets bästa i främsta rummet”

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From the research about legal and political aspects of refugees I found Schiratzki’s book19 about the best interest of the child in a multicultural Sweden one of those relevant for this study. Her research is about children in the Swedish law. The purpose of her work is to study the implementation of Sweden’s commitments to International Law, in particularly the European Convention and the Child Convention, regarding children with connection to another judicial system and to discuss how the principle of the best interest of the child affect the legislation. Among other matters she has studied the Aliens Appeals Board’s interpretation of the best interest of the child in examinations of residence permits. She hoped to find an open interpretation and aspects of an individualized interpretation of the concept. But instead she discovered that the interpretation of the ‘the best interest of the child ’, in the material she studied, followed practically entirely those interpretations that is to be found in preparatory works and presidential decisions.20

Moreover, a number of studies about the health of immigrants have been carried out. These involve how the health-care for refugee-children and their families work and how their physical and psychological health is. Important to mention for this study is the two books written by Birgitta Angel and Anders Hjern about meeting refugee-children and their families and the follow-up about meeting refugees.21 The first edition focuses more on the children whereas the second one also focuses on adult refugees as individuals and has a section about medical anthropology and public health. These books are thought of as being help for people working with refugees.

Here the fundamental knowledge about refugee-children and their family situation is brought up. Efforts and measures aimed at these families is discussed and the importance of the society to take its responsibility for the refugees who come to Sweden and is suffering from post traumatic stress decease (PTSD) is emphasised. It is argued that it is important as a parent to get help with processing the feelings one has after a war and a flight in order to function normally in their role of parenthood. The parents do however seldom receive this care. Further it is described how difficult it is for the parent who is suffering from PTSD to listen to crying children since it reminds him or her of the horrors from the war. Another problem for these parents is to set limits for their children. Either they become too aggressive against the child or avoid setting limits because of fear for the anger they feel inside. A negative consequence for these children is the responsibility for the family’s hope for the 19 Schiratzki 2000 20 ibid, p. 73f 21

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future is laid on them. This weighs down on the children because they know that if they cannot handle these expectations, their parents’ risks being broken-hearted.

In this area it is also worth mentioning Kristal-Andersson’s work22. The author has worked with refugees and immigrants since 1975 and therefore has an enormous experience in the psychology of these individuals and their families. The dissertation describes the difficulties that are commonly faced by the individual and the family in the new country. She discusses the consequences of the long waiting times. According to the author the consequences of waiting can affect the individual immediately and in years to follow. The second part describes a year long training programme for caring professionals and evaluates particular objects of case work.23

Furthermore, some studies about children with refusal syndromes have recently been done both internationally and in Sweden. Lask who is Professor of Child and Adolescent Psychiatry at St. George’s Hospital in London has written an article called Pervasive refusal

syndrome where he describes this condition from his experiences. In 1991 when he treated four girls aged between 9 and 15 who suffered from “a potentially life-threatening condition, characterised by a profound and pervasive refusal to eat, drink, walk, talk or care for themselves in any way over a period of several months”, Lask has been consulted on approximately 50 similar cases around the world. According to him it is still unknown what causes this condition but it could be a reaction on a feeling of being in an uncontrollable and hopeless situation such as loss of close relatives, migration, assault, and family conflicts.24

Additionally, Bodegård who is a chief physician has written a number of articles where the latest is about five asylum-seeking children with life threatening losses of functions without underlying physical illness whom he has treated.25 These children show similar symptoms as those in international studies. He describes their condition Depressive Devitalisation, which he sees as a variation of PRS. The children in his case-study come from the former Soviet where they and their families had experienced severe trauma, were here in Sweden in a state of hopelessness, helplessness and unimpressionable time perspective. He writes that when the family, especially the mother, regained hope for the future, as they received residence permits, the treatment of these children became successful and soon they recovered. According to Bodegård, there were no known cases of such conditions before 2002 in Sweden. 22 Kristal-Andersson 2000 23 Kristal-Andersson 2000 24 Lask 2004 25 Bodegård 2004

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Lastly, Maria Hessle the national coordinator for children in the asylum-process with pervasive refusal syndrome has published the first partial report in may 2005. It is based on a survey answered by staff at child psychiatric units and shows that over 400 asylum-seeking children have been in contact with the BUP for pervasive refusal syndrome since 2003. Over 80% came from former Soviet and former Yugoslavia.

1.5 Disposition

The continuing of this essay begins with an account of the theoretical perspectives, which is the top-down and bottom up perspectives on implementation as well as a juridical angle. This is followed by three sections that have the purpose of illustrate the child-perspective in the asylum-process: “Refugee-Law and Children”, “Implementing Procedures”, and “Consequences of the Refugee-legislation and its Implementation”.

In the first section a description and analysis of the legislation relevant when a family with small children seek asylum is presented. I start with an introduction about the development of the refugee-right and continue to the introduction and development of the child-perspective in Swedish alien-legislation. The relevant articles of the international documents concerning refugee-children, that is, the Geneva Convention with the additional protocol and the Child Convention are presented as well as a historical discussion about the child-perspective in the Swedish legislation and its practice, focusing on the Aliens Act. In the second section the Swedish asylum-process is presented and explained. The important actors, i.e. the Migration Board and the Aliens Appeals Board are analysed with the help of the factors that affect the implementation, presented in the theoretical framework, in an attempt to understand the implementing procedures.

The third section show how the asylum-process looks like for the children who arrive together with their families. There is a deep analysis of the children’s situation: whether their needs and rights are provided for, how the parents may affect their children and how previous experiences in their home countries together with the time spent waiting for a decision may cause harm. This will include all aspects of the asylum-process, that is, the law and its implementation as well as living standards, child-care, school, health-care.

Finally, in the end of the essay there will be some concluding remarks about my findings.

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2. Theoretical Perspectives

In this section I present the theoretical perspectives that I have based my empirical study on. Since the focus in this study is the child-perspective in the refugee-legislation and its implementation I have chosen to base it on the top-down and bottom-up perspectives on implementation as well as the factors that affect the implementation of a political decision.

2.1 Implementation

With implementation is meant, “Political decisions shall be realized and carried through actual measures” 26. The political decisions that are made in parliamentary assemblies are intended to be implemented, but the problem is that political decisions are often not implemented as the decision-makers intended27.

Implementation researchers define implementation slightly different depending on which perspective they take. According to Premfors implementation is “the stage in the policy process that follows the formal decision and that spans the activities until it is a document line or a programme become an operational activity.”28 There are different understandings on implementation research. On the one hand there are those who say that research about implementation at the most can accomplish more or less, often less, unrealistically checklists on conditions for successive carrying out. They argue that examining shortages and failures in public policy, with the help of such wish lists, are a less fruitful activity considering the complex reality.29 There is however those who consider the implementation research a central area of research. Bengtsson writes that

“In a democratic system it is of course extremely relevant to ask why a government sometimes do not successfully carry out decisions … that are made with support from a majority in the parliament. It is fundamental in our entire conception that we in a democratic society can steer and change the social reality through politically made decisions”.30

When it comes to implementation research it has been lively discussed from which perspective the implementation should be studied. In the scientific studies one talks about two different perspectives on implementation, the top-down with focus on the intentions of the

26

Bengtsson 1995 p. 11 (Translated from Swedish by the author of this essay)

27

Rothstein 1993 p. 16

28

Premfors 1989 p. 128 (Translated from Swedish by the author of this essay)

29

Bäck & Soininen 1998 p. 127f

30

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decision maker and bottom-up with focus on the handling of the implementer.31 The perspective one chooses is dependent on which level one decide to depart from. The top-down perspective has its point of departure at the top of the organisation where the political decision has been taken. Often in form of a law that later is implemented in a so-called steering chain. In the bottom-up perspective one is instead departing from the lowest level of the organisation to see how the societal effects turn out to be. The implementer is in this perspective given a great freedom of action and the law does not necessarily have a steering effect.

The main differences between these two perspectives is that the top-down perspective makes a clear distinction between policy formulation and policy implementation whereas the bottom-up not necessarily see that there is such a distinction, as well as their view on legislation as means of control.32 It is the law that is the point of departure for the analysis in the top-down perspective, whereas it in the bottom-up perspective is the implementer one departs from. The research problem in top-down is to describe and explain how the law is implemented, while it in the bottom-up is an empirical question whether the law has any steering effect at all, and in that case which, and if not the law can be excluded from the analysis. Furthermore, the point of departure in top-down can also be the intentions of the decision-maker, whilst the handling of the implementer is the departure in bottom-up. The top-down perspective also stronger emphasizes the lacking reliability of the steering and control.33

Thus, in the top-down the researcher looks at the decision at the top of the organization, then the legislation (law(s) and ordinances) and goes on to the steering and control from the state and decisions in the municipal executive committee and down to measures in the authority. In the bottom-up the researcher instead examine what role the investigation technique, the investigator, the ways the decision-making official writes the decision, on which grounds he or she makes the decision and the official him or herself, then moves to the authority as a whole, the municipality, NGO’s and other organizations and networks, further up to the migration-minister, the government, the parliament and lastly legislation.34

31

Hill 2005 p. 174-195

32

Sannerstedt in Rothstein 1993 p. 22ff and Hill 2005

33

Sannerstedt in Rothstein 1993 p. 22f

34

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2.2 Factors that can influence application of political decisions

There are different factors that can have an impact on the results of the public sector and therefore perhaps explain the compliance or discrepancy between governmental intentions and actual results. These factors are described by Vedung in his book in which he presents a thorough list. He emphasizes however that these factors, as do all sociological explanations, depend on the circumstances. Further he states that “universal explanations unaffected of time and space, does not exist and cannot exist when we concern ourselves with human actors”.35

Lundquist as well as Bengtsson also discusses important factors in the implementation phase. Below I shortly describe those factors that influence the implementation of political decisions. Authorities, the actors involved, street-level bureaucrats, changes in the conditions and the precision of the decision, are important aspects that are of relevance to this study.

2.2.1 Authorities: knowledge, resources and attitude

Regarding whether or not and how a decision is implemented depend, researchers argue, much on that the implementer understands, can and wants to implement the decision.

The implementer’s understanding of the measures can affect the outcome. The official must have understood the content of the steering in order to realize what is expected of him or her. Available resources in the public administration can also affect the result. If the implementing authority receives enough money, adequate personnel can be employed and enough resources can be obtained. Lastly, the result can be influenced by the will of the implementer, that is, whether the official(s) wants to carry out the steering or not.36

2.2.2 Related institutions, intra- and inter-organisations and networks

Hill argues, “Implementation … very often involves inter-organisational systems”37. Schools, Health-care, Child-care and other institutions in the municipality, organisations both separated such as NGO’s and those within the authorities and related networks for example can and often do have an affect on the implementation of policies. Furthermore, Vedung states that the attitude, knowledge, understanding and will of the middlemen can either support or hamper the result-development.38 In order for everything to work out the way it was intended to cooperation between actors concerned is very important.

35

Vedung 1998 p. 167-9, the quote is translated by the author of this essay

36

Vedung 1998 p. 180f and Lundquist 1992 p. 75f, see also Bengtsson 1995 p. 28f

37

Hill 2005 p. 217

38

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2.2.3 Changes in the conditions

Unforeseeable situations can occur during the implementation so that the conditions changes and this sometimes affect the outcome.39 Unexpected situations are common in administrative authorities and sometimes the officials working there are ill prepared when this occurs.

2.2.4 The policy formulation: the precision of the decision

According to Bengtsson, some political decisions are easier to carry through than others, which can be the case where there are few organisational levels and the division of labour between different authorities are precise combined with the existence of clear and exact regulations. However, the implementation of a political decision will be much more complicated, if the decision is more general and therefore demands interpretation at the same time as there are more organizational levels.40 Moreover, the implementation can be affected if the policy formulation contains unclear or conflicting goals. A consequence of this could be that “the implementer cannot determine what intentions underlie the decision”.41

Furthermore, the extent of the precision in a decision is dependent of what type of steering is used. According to Lundquist, there are three different steering types, i.e., steering by goals, which are imprecise, detail steering which is precise and programme steering which is in between. One of the fundamental thoughts behind imprecise steering is that politicians and executive or management officials on a lower level can have freedom of action to be able to adapt the decisions to the local reality, which central placed politicians have difficulties to survey. This can also create motivation with the implementer, which can create better possibilities to engage the user of the public service in the implementation.42

As stated above, the implementation can be studied through a top-bottom perspective, where the focus is on the decision and the intentions of the decision-maker, as well as through a bottom-up perspective where the focus is on the implementer. It is however unusual that the perspectives are used in their pure forms. Michael Hill states that today, most researchers avoid taking either of the extreme positions, i.e. a clear top-down op bottom up perspective. 43

39 Bengtsson 1995 p.24 40 Bengtsson 1995 p 13 41 Bengtsson 1995 p. 23 42 Lundquist 1992 p 82f 43 Hill 2005 p. 176

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Often a combination of the two is used, which is called iterative studies, where consideration to both the affect the legislation and the bureaucratic structure have on the implementation.44 To get a complete picture of the decision and how it influences the implementation in the public sector, here the Migration Board, I use a combination of the two perspectives, i.e. the top-down and bottom-up. Furthermore the factors presented in the theory section can, as stated above, cause problems when a decision is implemented, the result can diverge from the decision, and therefore I will use these as well in my analysis of the implementing procedures.

2.3 Juridical angle of approach

Since I, in this study, start out from the Swedish Aliens Act and the Convention on the Rights of the Child, there should be a juridical angle of approach. To get an insight into the juridical method I have read Praktisk Juridisk Metod by Bert Lehrberg. What interests me is what is written about concepts, definitions and linguistic interpretation. Regarding conceptions in the law-text, many of these are not specifically defined. There are for example regulations (concepts) that are very abstract. These abstract regulations are called general clauses, which mean that because of the abstract formulation the application/implementation can be done in many different situations. This results in that it is the decision-making officials who determine which meaning the concept should have.

Lehrberg writes that when a law is being interpreted, it is not enough to read through the law and get a “general impression” of the meaning but one must also consider all prerequisite, the concept in the law that describes which conditions that should exist, and what extent these should give the implementation. Some of these prerequisite are dependent on each other, so called cumulative, and must function together. When one is going to interpret a law it is, according to Lehrberg, a linguistic interpretation one must depart from. In this essay I am going to discuss the meaning and interpretation of the child-concept and the concept of the best interest of the child in the Aliens Act through having studied preparatory work and comments rather than interpreting and analysing them on my own.

When doing a linguistic interpretation of a law, the point of departure is the meaning the words have in the “everyday language”. There is however some words that partly diverge from what they mean in a so-called “everyday language” and these are then defined in the law. Some words in laws are very vague can be a weakness but it can also be deliberate imprecise to give decision-making officials a freer interpretation space in the judgement.45

44

Bengtsson 1995 p. 42

45

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The Asylum Process

The Swedish asylum-process is a highly political matter and its form depends very much on the political climate. The Swedish immigration policy, including refugee policy, is established by the parliament and the government and includes principles and regulations concerning the granting of residence permission for aliens, state-financed municipal reception for refugees in order for them to adjust and be integrated into Swedish society and the reception of other persons in need of protection.46

This chapter consists of a thorough description of the different aspects of the Swedish asylum-process arranged in three sections, “Refugee-Law and Children”, “Implementing Procedures” and “Consequences of the Refugee-legislation and its implementation”. In the first section, the juridical perspective, i.e. the legislation and conventions that are of relevance when a family with small children seek asylum are presented and discussed. The focus will lie on the Aliens Act and on the Convention on the Rights of the Child (CRC) because they are of greatest significance to my study on the child-perspective in the asylum-process. Besides this, attention will be given to The UN Convention Relating to the Status of Refugees or the Geneva Convention, which it is also called, and the Reception of Asylum Seekers and Others Act (LMA). Since the asylum-process is mainly regulated in the Aliens Act, the history and the development of the child-perspective in the Aliens Act will be discussed. In the second section there will be a description and analysis of the judicial perspective, that is, the actors Migration Board and Aliens Appeals Board, which are the main authorities concerning asylum-cases, and their procedures. Here a thorough analysis of the problems of implementing the child-perspective decision is made. And lastly, the third section analyses and discusses the individual perspective, which is, the refugee situation for children arriving with their families. Here the experience from the children themselves based on interviews with actors in various organs as well as information from diverse organizations and literature are examined.

46

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3. Refugee-Law and Children

3.1 The background to refugee-law

People have in all times migrated and there have always been refugees in the world. The voluntary migration has increased significantly mainly because the globalisation has made it easier for people to move freely between states. However, the involuntary migration has also increased drastically. Never in history have the world witnessed and experienced refugees in such a great extent as during the 1900s. Millions of people fled the Russian revolution, Assyrians and Armenians fled from persecution in Turkey during the first the first half of 1900, in Germany Jews, political opponents and other groups were persecuted by Hitler and his party; and millions of people from Eastern Europe sought asylum in west after the Second World War.47 During the second half of 1900 we have the great flows from Africa, Asia, Latin America, former Soviet and the Middle East. Hence, armed conflicts and states that do not respect human rights have led and continue to lead many people to flee their home-countries. According to Goodwin-Gill civil war, both political and ethnic conflict, with or without external involvement or support, is the cause of the largest refugee-flows. Another cause is the many assimilationist and centralist policies of various States, “often themselves reflecting efforts to maintain or consolidate a power-base by a dominant ethnic or political group, as for example … Kurds in Iraq”48

Around the world today approximately 45-50 million people are in flight and need protection because they are afraid and feel that their life or freedom is threatened. Most of these take refuge within their home countries or in nearby countries and only a few reaches the industrialized world.49 It is a human right to seek and enjoy protection from death and persecution.50 Furthermore, millions of children are suffering and the refugee-children count to those who suffer the most. According to the UNHCR “approximately half of the world’s refugees are children” and these are an especially vulnerable group who need to be protected and whose rights need to be respected. Here the Convention on the Rights of the Child is especially important because it obliges the States to assure protection, provision, and participation to all children within its jurisdiction. One of the general principles in the CRC is

47 Melander 1972 p. 9 48 Goodwin-Gill 1998 p. 189f 49 UNHCR: www.unhcr.ch 50

The Universal Declaration of Human Rights (Article 14) “Everyone has the right to seek and enjoy in other countries asylum from persecution”.

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‘the best interest of the child’, which since 1997 is explicitly stated in the Swedish alien-legislation.

Although less than 10 percent seek asylum outside their home country and that the number of asylum-seekers in the Industrialised countries has decreased during the last years, authorities and the media often gives the impression that the number is constantly increasing. Between the years 1992-2004 the number of asylum-seekers in the western world decreased with 65 percent.51 Also in Sweden the number of persons seeking refuge has decreased. Sweden has however had a few peeks during these years when the numbers were very high, fro example in 1989, 1992, and 2000.

In Sweden the Aliens Act regulates which aliens that are entitled to protection. The first Aliens Act in Sweden was established (inrättades) 1927, after that, new Alien Acts have been established (upprättats) year 1937, 1945, 1954, 1980 and 1989. The 1954 Aliens Act was however the first permanent one, the ones before was temporary ones. In between there have occurred some modifications as well as after 1989 where the most significant changes regarding refugees came in 1997.52 What I have understood changes in the law occur as the state in Sweden and the rest of the world changes. Certainly, the world is constant in change but sometimes such huge changes take place that demands that also the present legislation has to be changed, which has been the case regarding the Aliens Act.

3.2 The concept of refugee

The concept of refugee can be traced back to the 1951 Convention Relating to the Status of Refugees and the expansion to include refugees from all regions of the world fifteen years later in the Protocol relating to the Status of Refugees. The convention and the related protocol also put the basis for concerned parts in the Alien Act of 1954. A definition of political refugee was then introduced in order to do the Act comparable with the Refugee Convention. Admittedly, the definition was supposed to be of “general character” in order for it to be used during a long time. Besides this, it should not contain any regulations about the obtaining of asylum.

The Geneva Convention accounts for the minimum rights, a person who seek refuge have. Every country is free to have additional rights. The definition in the Aliens Act of 1954 did not entirely agree with the refuge convention because it was considered that it was too restrictive in relation to the current practice in Sweden. A definition of the concept

51

UNHCR: www.unhcr.org

52

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persecution was also included in the law in order for the interpretation to be generous. The reason why this part of the law came to being was that Sweden had ratified the Geneva Convention.53

In the Aliens Act of 1980 the Refugee Convention was integrated into Swedish law. With this it was suggested that the refuge definition should be the same in the Alien Act as in the convention. The concept ‘political refugee’ became therefore refugee. It was however argued that it was important with a generous implementation of the refugee judgement and asylum-regulations. One of the arguments for an integration of the Refugee Convention in the Aliens Act was that with that refugee matters are internationally established and the world’s refugee work pursued in cooperation between the UNHCR and Convention States, the international definition, i.e. the definition in the Geneva Convention, should also form the basis for the legislation in Sweden.54

In 1989 a new Alien Act55 was established, which is the last to date (2005). One of the reasons to a new law was that the law needed be made more perspicuous. This was done through, among other things, taking in such that concerns asylum in a special chapter (chap. 3) where also the concept of refugee was defined as well as a definition of what the right to asylum means. Moreover, the definition of the concept of persecution was removed partial because it could be misleading. It is however argued that this does not signify any change in what is intended with the concept. 56 The majority of the Consideration Bodies left positive comments to these changes. Both the Red Cross and the Swedish Iran Committee argued however that, humanitarian reasons should be included in the concept of asylum, and a few others argued that flight because of war should be a possible ground for right to asylum57.

In the preparatory work before the modifications 1997 the latest changes of concerned paragraphs was proposed. A stateless person is now given protection on the same grounds as citizens and persecution from other than the state is also a reason to be granted asylum status. Further, the categories ‘war-deserter’ and ‘de facto-refugees’ is changed to ‘other persons in need’, which contain three categories. The three categories include: persons who risk death-penalty, body punishment, torture, inhuman or degrading/inhuman treatment or punishment;

53

Aliens Act (1954:193), 2 § and Prop. 1954:41 p. 64 ff

54 Prop. 1979/80:96 p. 40ff 55 Aliens Act (1989:529) 56 Prop. 1988/89:86 p.154 57 Prop. 1988/89:86 p. 74ff

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people who flee due to armed conflict or environmental disaster; and persons who are persecuted due to their sex/gender or homosexuality58.

The motive to the proposed changes by the government was that Sweden’s asylum politics has been criticized several years. It has been said that today’s interpretation of the protection regulations in the Geneva Convention have been more restrictive than needed. People who flee from war are often in great need of protection but there has not been protection regulation for these people in the Act. Moreover the government finds it of great importance that the definition of a refugee and its interpretation agree with the Geneva Convention, since the government think that it is important with an internationally homogeneous view of the regulations in the Refugee Convention. It is however not only due to criticism that changes has taken place but in praxis as of today (gällande praxis) has many persons who are now included in chapter 3, paragraph 3 of the Aliens Act obtained residence permit, of humanitarian reasons for example.

3.3 The Convention on the Rights of the Child (CRC)

In this section a short history of the CRC, what the ratification of it means and its main principles are presented with the purpose of understanding the meaning and the importance of the CRC.

Before the Convention was founded there had been two declarations concerning the rights of the child, that is, the 1924 Declaration of the Rights of the Child, which originated with the Save the Children and the 1959 Declaration of the Rights of the Child. But these two Declarations were not legally binding but only principles, however important such. The proposal for a convention of this kind came from Poland. It was based on the 1959 Declaration and was introduced in 1979, the International Year of the Child, and was sent out by the UN Secretary-General to governments and organizations for their “views, observations and suggestions” 59. That year an open-ended working group was founded to formulate a draft. Representatives from all the forty-thee states represented on the Commission could participate in the working group. Other states, as well as intergovernmental organisations and NGOs, could also send observers.60 The outline of the convention led the international community to review the existing international laws and documents on children including those on

58

Prop 1996/97:25 p. 94

59

UNHCR: Children’s Rights: Creating a Culture of Human Rights, basic information kit no. 3, 1998, p. 10 and The United Nations Convention on the Rights of the Child: A Guide to the “Travaux Préparatoires”, p. 19ff

60

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child refugees from the child perspective.61 Finally, after 10 years and a great many meetings with discussions and compromises, the CRC was produced.

The CRC was adopted by the UN General Assembly in November 1989 and came into force on 2 September 1990. It is a legally binding instrument that explains the rights to which each individual under the age of 18 is entitled. Since “the convention covers not only civil and political rights but also social, economic, cultural and humanitarian rights”62, virtually every aspect of a child’s life is covered, from health and education to social and political rights. The CRC is important to refugee children because it sets comprehensive standards.

Sweden ratified the Child Convention in June 1990 and it came into force in September 1990, which means that Sweden is entitled to follow it. But the CRC has neither the characteristics of a law nor is there an international court of law that can stipulate that a state does not follow the regulations in the convention. There is however a Committee made up of 18 experts from different countries that examine the progress the states has made concerning the obligations according to the convention. The states commit themselves to write reports to this committee. The first report, the “Initial Report”, is submitted within two years of ratification which is followed by a “Periodic Report” every five years. 63 Sweden has, at the time this essay was written, submitted three reports to the UN Child-Committee, the latest in 2002. After the UN-child Committee have examined the reports, representatives for the national government are invited for a discussion and then the Committee is summing up their conclusions in a special statement “Concluding Observations”. Besides the Governmental reports, NGO’s can submit alternative reports to the Committee. Save the Children always examine the governmental report and then writes an alternative report, which is sent to the Committee.64

In their statements the committee mention, under “concerns” the problem areas they think the state should look into and propose under “suggestions and recommendations“ the investigations the states could do in order to find solutions to live up to the convention in a better way. The committee never uses words or expressions that indicates that a State break or violate the convention. Neither does it indicate that a country has passed nor failed. It is not about that but instead it is about a critical and constructive evaluation of the present state.

61

Van Bueren 1998 p. XVI

62

McGoldrich 1991 p 80 and UNHCR: www.unhcr.org

63

Wikrén & Sandesjö 2002 p. 41 and UNHCR 1998 p. 13 and Hammarberg 1996

64

Course about the UN Convention on the Rights of the Child arranged by Save the Children 04-04-25, see also CRC, art. 43-44

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The uniqueness with the CRC is that it gives rights to children. Adults often think of children as having needs that should be met, rather than as having legal rights. Owing to the Convention, children now have internationally recognized human rights. There are four rights that are so fundamental and interrelated that they are seen as the core principles of the Convention. The four rights are non-discrimination (art. 2), the best interests of the child (art. 3), the survival and development of children (art. 6) and the right to participate (art. 12).

The non-discrimination regulation (art. 2), states that every child within a State’s jurisdiction holds all rights in the Convention without regard to citizenship, nationality, immigration status or any other status. Hence, asylum seekers, refugee children, and rejected asylum seekers are entitled to all the rights of the CRC.65

Article 3 impose public and private social welfare institutions, courts of law, administrative authorities and legislative bodies to in all actions concerning children let the best interest of the child be a primary consideration.66 The two main applications of the best interest regulation are government policy-making and decisions made about children on an individual basis. This article requires States to evaluate how each course of action may affect children. Because the interests of children are not always identical to interests of adults, and can at times even conflict, the State must carefully separate out the various interests at issue. The government does not have to take the course of action that is best for children, but if any conflicts are identified, the State must make the best interests of children a primary consideration. This regulation applies in the administration of the government, in budget allocations, and in the making of laws. However, the decision about a child’s best interests can often be difficult since no single answer may be obviously and unquestionably correct. The best interests rule underlies the CRC, that is, each article is a variation on the theme of the best interests of children.67

Article 6 states that every child has a fundamental right to life and states must ensure its survival and development. Hence the survival, protection and development of all children should be given priority.68 Every child should also be given opportunity to develop in its own pace and from its own conditions.

Participation is also a theme that runs throughout the Convention. In one-way or another, nearly every article concerns some aspect of children’s participation in society. In article 12 it is argued that every child who is capable of forming his or her views shall by the

65

UNICEF 1998 p. 19-33 and Guidelines on Protection and Care

66

Wikrén & Sandesjö 2002 p. 41 and UNICEF 1998 p 37-46

67

UNICEF 1998 p. 37-46 and Guidelines on Protection and Care

68

References

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