The legal dimension of unaccompanied children is intersectional within the provisions of the Pact of migration and asylum (hereinafter “the Pact”), adopted in the spring of 2024. “Unaccompanied child” means a child who arrives on the territory of an EU Member States unaccompanied by an adult responsible for him or her, in accordance with the law or practice of the Member State concerned.
The EU Court of Justice stressed that Article 24 of the Charter integrates
the Convention on the rights of the child into EU law and that the EU asylum system must comply with these international and EU standards on the rights of the child. Both the Convention and Article 24 are mentioned several times in the legislation adopted with the Pact and several provisions state the obligation to take into account the best interests of the child (Article 13 of the Screening Regulation; Articles 22 and 23 of the
Asylum Procedure Regulation; Article 20(5) of the Qualification Regulation).
Following the approval of the Pact, the Commission updated the guidelines for the definition of the Pact, publishing Recommendation 2024/1328. According to the Commission, child protection authorities should be closely involved in procedures concerning unaccompanied children to ensure that the best interest of the child is duly prioritized in Member State’s systems.
Specific safeguards introduced by the Pact. First of all, concerning the guardianship of unaccompanied children, the Pact introduced amendments concerning the purpose of guardianship, the duties of a guardian and the persons eligible to act as a guardian and apply to the various reformed procedures.
The new legislation (Article 2(13) Reception Conditions Directive) fills a gap and introduces a mandatory and uniform procedure at European level for the designation of a guardian: within a maximum of 15 working days (in exceptional cases 25) from the lodging of the asylum application, Member States are obliged to appoint a representative. Until this appointment is made, children are entitled to the appointment of a provisional/temporary representative, who ensures that a person with the right training assists and represents the child at every stage, including during screening, biometrics collection and age assessment.
The guardian will have to act independently from the authorities responsible for the various procedures, will have to announce any form of conflict of interest. He/she will have to deal with a limited number of unaccompanied children, of 30 unaccompanied children at the same time (which may become 50 in selected cases). The independence of the guardians from the authorities deciding on other phases of the procedure will be a crucial challenge for all Member States.
Moreover, a multidisciplinary age assessment procedure is specifically introduced by Article 25 of the new Asylum Procedures Regulation. Article 25 requires that the assessment be carried out in a ‘multidisciplinary manner, including a psychosocial assessment’, and in the least invasive way possible, by ‘medical professionals with experience and expertise in age estimation’ (Article 25(2)(3)). This new rule provides a guarantee against invasive methods of performing age assessment, which have recently been ruled as unlawful and violating the right to private and family life, under article 8 of the European Convention of Human Rights.
The procedure must take place in the presence of the child’s guardian, whose role is to ensure that the child is correctly informed of the type of examination envisaged, the possible consequences of the results of the medical examination and the possibility for the applicant to refuse the medical examination and the consequences to which this refusal exposes him or her (Article 25(4)). This information is necessary because the visit
cannot be carried out without the child’s consent (Article 25(5)). Refusal to submit to the procedure is treated as a “relative presumption that the applicant is not a minor” (Article 25(6)). It has been argued that, with this procedure, the Regulation exerts enormous pressure on the child, to consent to the examination, because otherwise the child could be excluded from the specific support they need.
Conclusion
In the transition phase before the Pact becomes operational in mid-June 2026, it is fundamental that these safeguards provided for are implemented by avoiding restrictive interpretations or discretionary applications that could undermine its effectiveness. Judicial review by the EU Court of Justice may be a useful tool to remedy any negligence on the part of the Member States.
The establishment of independent monitoring mechanisms will also be essential to ensure that unaccompanied children are not subject to long periods of deprivation of liberty and that age assessment procedures are followed in compliance with the legislation.
In conclusion, it is essential to remind that protection of fundamental rights must be the leitmotif for the implementation of the rules concerning vulnerable categories, such as unaccompanied children.
Giovanni Meledandri
Graduated in law from the University of Trento and later obtained a master’s
degree in international law from the Universite’ Libre de Bruxelles. Since October 2024, he works for the migration and asylum sector of the European Union Agency for Fundamental Rights.
