Send the Children Home

The Netherlands has tightened its borders over the past ten years. Unaccompanied minor asylum seekers are not immune to the consequences.
 
Marek still has nightmares about jail. Ishmael has a debilitating disease called “prison memory” which can never be cured. Both boys are sixteen, and neither has committed a crime. Marek and Ishmael have another thing in common: they entered The Netherlands as children seeking refuge from war and famine, and instead of protection, got prison.  
 
This story could have been told by any of the 160 minor asylum seekers (AMAs) locked up in juvenile jails in the Netherlands in 2008. A similar story, in fact, was broadcast in February 2009 on the Dutch television program “Een Vandaag.” These AMAs, along with the thousands of others currently navigating the grueling quest for asylum, seem to walk a fine line in Dutch eyes between criminal (accused of existing in a place where they are unwanted) and child (worthy of care and protection). 
 
The situation for minor asylum seekers in the Netherlands was not always so harsh. In fact, ten years ago, the Dutch AMA policy was still relatively lenient. In 2000, 6,705 AMAs requested asylum in the Netherlands, a figure that was very high compared to other European countries.  Consequently, the government began to wonder if their AMA policy itself was too much of a “pull factor.” The Dutch worried that the flood of AMAs would have a negative impact on society, as well as on “deserving” asylum seekers. As a result, a new policy towards solitary underage asylum seekers was implemented in 2001, which essentially tightened procedures, stressed repatriation, and created a distinction between AMAs awaiting “return” and AMAs destined for “integration.”
 
The impact of this policy was monumental. The desirability of the Netherlands as a destination for AMAs decreased considerably, reflected by the fact that in 2002 only 3,233 people applied for refugee status – less than half the number of applicants received in 2000. 

Hierarchy of the Herd

Thousands of children are in need of protection from the harsh realities of the world. But when there are 1000 sheep and 100 pens, only 100 sheep will sleep in a pen. Comparing a child to a sheep may be offensive, but the reality is that destination countries must find ways to categorize the herd. How do you judge whose suffering and fear is worst? And how can you know who is the most mature (physically and emotionally), the one most able to withstand life’s traumas with the least support? 
 
These questions are dealt with everyday by Dutch immigration authorities. Systematic methods have been put in place to prioritize the needs of children who come knocking. In theory, as stated in the Convention on the Rights of the Child, “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.” In practice, however, actions taken towards AMAs are often not in their best interests. Moreover, in reality it is impossible to create a hierarchy of need. Still, Dutch immigration procedures are not unique in their attempt to regulate immigration using such a hierarchy, superficial as that may be.
 
Those who fulfill the requirements for refugee status are given top priority in this hierarchy. Any person, minor or otherwise, deemed to have “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion” (a controversial concept to prove in and of itself), is allowed to live in the Netherlands indefinitely. As for those denied refugee status, whereas adults are immediately sent back to their countries of origin, minors are given extra protection under Dutch law. Nevertheless, it is these AMAs not qualifying for refugee status who are most vulnerable under the current system. 
 
AMAs without refugee status are eligible for a temporary residence permit if “adequate” care is not available for them in their country of origin. This permit is valid for one year, and can be renewed twice. An AMA is granted permanent status after living in the Netherlands for three years with such a permit. If the minor turns eighteen before having held a temporary residence permit for three years, the permit is immediately revoked and the AMA is either sent back to his/her country of origin, or becomes an illegal adult living in the Netherlands. 
 
Under this system, it should be possible to determine from the outset whether a new AMA will ultimately be allowed residency in the Netherlands or will be sent home. In 2001, the focus became one of separating AMAs into groups based on this verdict. The goal was to prepare children appropriately for either integration or return, and to place each child on the track to this final destination as quickly as possible. In part, this classification system was meant to avoid the confusion and stress experienced by AMAs who adapt to life in the Netherlands, only to be uprooted and sent back where they came from.
 
In reality, however, the situation is not so black and white, and is far from speedy. Upon arrival in the Netherlands (by air), AMAs are held at the Schiphol reception centre. Some AMAs reside for more than two weeks in the small waiting room and sleeping quarter. The sleeping quarter is locked during the night, and AMAs cannot leave the waiting room when they please. The length and legality of these detention practices are controversial. Eli Akbas of Vluchtlingenwerk Nederland works at the Schiphol application center, and is very concerned about the duration of detention. AMAs frequently ask Akbas what they did wrong and why they are being treated like criminals. According to the spokesman for the Ministry of Justice, the aim of detention is to protect them. Recently, a number of AMAs of East Indian origin disappeared from the reception centre in Ter Apel, a small town in the north of the Netherlands.  It is likely that these children ended up in the hands of child traffickers. The Ministry of Justice feels that the only way to protect AMAs from such occurrences is to lock them up and sacrifice their freedom. As a result, closed, protective detention centers have sprung up in an attempt to house and educate high-risk AMAs for longer periods of time. These centers have been successful in decreasing the number of disappearances, but the lack of rights and freedom remains a controversial issue. The Court of Gravenhage has recently specified that in certain circumstances, the detention can constitute a violation of Article 5 of the European Convention on Human Rights (the right to liberty and security). In certain cases, the State Secretary to the Ministry of Justice may be forced to pay compensation for damages experienced by AMAs held in these closed centers. 
 
Martine Goeman, a legal specialist with Defense for Children International, is also concerned about the lack of rights given to children in Europe who have been separated. Goeman is particularly focused on the AMA situation in the Netherlands, and the lengthy immigration procedure. While AMAs should be immediately designated for either integration or return, many children fall within a gray area because the process is inexcusably long. The three-year rule was meant to protect AMAs by allowing those already integrated within society to stay. A child, however, can be “in procedure” for six or seven years without receiving a temporary residence permit. Therefore, an AMA’s right to stay in the country after spending years integrating often does not apply. As a result, many well-integrated AMAs end up illegal on the streets when they turn eighteen. This outcome is likely for one of Goeman’s clients who entered the country at the age of seven. This young boy has been living with a foster family for almost ten years and is attached to his life in the Netherlands, but his status remains uncertain as he is still going through the immigration process. 
 
AMAs in such an ambiguous situation can end up within the juvenile justice system like Marek and Ishmael.  Or, worse, those who become illegal once they turn eighteen, like Goeman’s client, must deal with the adult justice system. Most have not committed a crime but are “held” in detention centers because, according to Goeman, it is easier for the return department to keep track of the AMAs and prevent runaways. Goeman is appalled by the lack of rights for these people, especially in contrast to Dutch children who would never encounter the same lack of protection. Clearly it is not in a child’s best interest to be held in a prison, and there should be no justification for doing so solely on the basis of AMA status. Also problematic is the fact that after six months in juvenile prisons, these youth can again be released onto the streets without protection from the state or the means, papers, or legal status to return to their countries of origin. Raiesa Habiboallah works for SAMAH, the Foundation for Unaccompanied Minor Refugees, and encounters many eighteen year olds whose lives have suddenly become precarious and dangerous because of the AMA policy. She finds this age cut-off to be the most problematic part of the immigration system because, as an illegal eighteen year old living in the Netherlands, you are suddenly ineligible for government support of any kind, from housing to healthcare.   
 
Ultimately, too many children’s lives depend upon ambiguous classifications and semantics. I will not attempt to open the discussion of how to determine whether a person is justified in his or her fear of “persecution,” but it is worth mentioning that defining “adequate” care is equally ambiguous and especially relevant to the AMA discussion. Since the government began financing shelters for youth in countries such as Angola and the Congo, it has become almost impossible for AMAs from those regions to receive care in the Netherlands. The government finances shelters to create “adequate” care so they can justify sending AMAs home. Moreover, the Dutch reap financial benefits, since financing shelters in Angola and Congo is much cheaper than providing housing in the Netherlands. Goeman, among others, argues that Dutch-funded shelters do not in fact provide “adequate” care, since the security standards in other countries do not match Dutch standards. The need to determine whether or not a child has adequate care in his/her home country prior to granting a temporary residence permit is a key factor responsible for the drawn-out the asylum procedure. Such a lengthy procedure, in turn, is responsible for the ambiguous and often inhumane conditions that each AMA must endure. 

Youthful Advantage

One’s age upon arrival is another important deciding factor in the AMA experience. Younger is clearly better. Many individuals from war-torn countries do not know their exact age, and more often they lack birth certificates or legal documents with such information. However, there is a stark difference in life prospects for a child who enters the Netherlands at age fifteen versus age sixteen, if that child is granted a temporary residence permit from the start. So, while it is advantageous for AMAs to guess one’s age to be fifteen or younger and to create legal documents that say so, it is in the Dutch interest to prove the opposite.   
 
To resolve this conflict of interest, Dutch immigration officials now employ age examinations. It is up to the interviewer to decide the credibility of an AMA and his/her age documents, and that interviewer always has the right to request an age test. Scientific technology for determining age is still in its formative stage, and thus far, there is no method for determining the exact age of an individual. In the Netherlands, X-rays are taken of the collarbone, which theoretically stops growing at age twenty, and the wrist joint, which theoretically stops growing at age fifteen.  
 
The consequences of inaccurate age results are serious. According to Human Rights Activist, Anna Timmerman, the X-ray test is inaccurate in forty percent of cases. The Royal College of Radiologists (RCR), a group of approximately 7,000 members and Fellows worldwide representing disciplines of clinical oncology and clinical radiology, also expresses serious concerns with the validity of X-ray examinations for “the accurate assessment of age and the clinical grounds for justification of these X-ray exposures.” The RCR claims that the X-ray based age-tests were developed based on relatively healthy Western children, and such baselines used to assess AMAs are probably not applicable. Moreover, the human skeleton matures at different rates based on nutritional status, race, and gender. 
 
The Dutch organization Medisch Advies Kollechef (MAK) has been actively fighting the use of age tests for years. Annemieke Keunen is a historian and researcher who works alongside doctors and medical advisors at MAK. Keunen says the age test was introduced in the Netherlands in 1999, without any basis for validity or reliability. MAK immediately began to investigate the test, and found that it is not capable of determining what it claims. Additionally, any exposure to radiation can be harmful and should not be applied frivolously 
 
Keunen acknowledges that age is an important factor in determining proper care for AMAs, and that there needs to be a test to estimate age. She is convinced, however, that the current test is not appropriate. Better, she believes, would be the interview method employed in England. Through medical exams, attention to the signs of puberty, and long conversations with each AMA, English officials are able to make a more accurate assessment of age. In fact, the Netherlands is the only country currently using this age test without restrictions. Goeman, too, laments the fact that the IND is permitted to use a test with so many flaws, believing that conversations are much more telling in regard to a child’s age and maturity. 
 
For the past ten years, Keunen and MAK have been trying to convince the IND that its age test is not valuable, and should no longer be used. Even the UNHCR declared the test to be inaccurate at a conference last year. According to the National Ombudsman, The Health Inspectorate also informed the Immigration and Naturalization Service (IND) that this method could not scientifically establish whether someone was a minor. The IND ignored the verdict, and Dutch officials continue to employ the age test, using test results as a justification for tightening procedures and denying children proper care. Since 1999, the Justice Department has been conducting investigations on the age of AMAs. In the year 2000, 2366 out of 6705 AMAs were given age tests, 991 (42%) of whom were said to have pretended to be minors when they were in fact over 18 years old. 
 
Tewelde Bahta, who was himself an AMA when he entered the Netherlands and was granted refugee status in 1999, told the story of a friend who was fifteen when she applied for asylum. This young girl underwent the age test, which found her to be an “adult”, and she was sent back to her country of origin. As Keunen argues, “the test is a very decisive moment in the asylum procedure in the Netherlands.” Moreover, it can have “severe consequences” since you can get sent to jail for “lying” to the government. There is a huge problem when one’s life trajectory hinges upon a single inaccurate test. 
 
While some judges do doubt the validity of the age-test, the legal repercussions of declaring it inaccurate would be unmanageable. With over 10,000 people who have already been subjected to that test, there would be thousands of individuals with grounds to appeal earlier results. In addition, there is a strong legal necessity for determining age, despite the fact that there is no exact method for doing so. All in all, to invalidate the age-test would create a huge political problem, so the government maintains that the test is useful and proceeds accordingly. 

The Country Is Full

In 2008 alone, there were more than 16,000 AMAs worldwide seeking refuge. Once again, the number of minors applying for asylum in the Netherlands is increasing, despite the aforementioned strict policies. At the same time, a rhetoric defined by phrases such as “our country is full” or “not in my backyard” circulate all over the globe. We are living in a time of economic crisis coupled with growing fear and resentment towards immigrants, especially those from Muslim backgrounds. More and more individuals are in need of protection, and more and more are being turned away. Keunen is dismayed to see how easy it is for society to use immigrants as scapegoats, as people to blame for our societal problems, even at the cost of children’s lives. 
 
While the situation is not a good one, there are concerns within the Dutch state regarding the AMA policy, and for this, there is reason to be hopeful. The State Secretary of Justice, Albayrak, has been advocating for a new AMA policy which was supposed to come into effect this summer. At this moment, the potential amendments are unclear, but stay tuned. Ideally, immigration authorities can began to view each child as a person with unique needs, rather than a number regulated by immigration law. Hopefully, the Netherlands will develop policies that truly protect the rights and best interests of children as spelled out in the Convention on the Rights of the Child. In the meantime, Marek and Ishmael still exist. Marek cannot forget the sound of the ambulance in the middle of the night. For Ishmael, the cries and screams of a peer attempting suicide won’t leave his thoughts. The fear, the depression, and the uncertainty…they escaped their countries to be treated as animals. Released after six months, and thankful that they did not die in prison, Marek and Ishmael live with their memories, unprotected and illegal, in this so-called civilized country. 

References

Personal Interviews

Akbas, Eli. Chief, Vluchtlingenwerk Nederland at the application centre of Schiphol. Amsterdam, Netherlands. June 24, 2009.
 
Bahta, Tewelde.  AMA. June 25, 2009. 
 
Goeman, Martine. Legal specialist, Defense for Children International. Amsterdam, Netherlands. June 29, 2009.
 
Habiboallah, Raiesa. SAMAH, the Foundation for Unaccompanied Minor Refugees. Amsterdam, Netherlands. June 30, 2009.
 
Keunen, Annemieke. Historian and researcher, Medisch Advies Kollechef. Amsterdam, Netherlands. June 30, 2009. 
 
Spokesman for the Ministry of Justice. Amsterdam, Netherlands. July 1, 2009.

Interviews on television

Een Vandaag. Interview with two formerly separated children who have stayed in a juvenile prison. February, 2009.

Documents

Convention on the Rights of the Child.
 
European Convention on Human Rights.
 
European Migration Network. “Unaccompanied Minors in Ireland and the Netherlands: Issues and Policy Responses.”
 
Leland, Hilary and Romana Maumbu. “Structure of Dutch Policy & Practices Regarding Unaccompanied Asylum Seekers Minors.” Humanity in Action Reports (Summer 1999). 
 
Nidos. “Annual Report 2007.” 
 
Professor Janet Husband of OBE FMedSci FRCP PRCR, Letter to Julia Kippin of Unaccompanied Asylum Seeking Children Reform Programme--IND, 23 May 2007.

Web Sites

“Asylum requests by citizenship.” Statistics Netherlands.
www.cbs.nl
 
“Fence around dutch detention center dismantled.” Noborder network. 
file:///Users/abigail/Documents/HIA/noborder.org%20%7C%20archive.webarchive
 
 
Netherlands Government Immigratie en Naturalisatie Dienst
http://www.ind.nl/EN/index.asp
 
 “Ombudsman Rebukes Immigration Service on Age Test.” NIS News Bulletin.
file:///Users/abigail/Documents/HIA/Ombudsman%20Rebukes%20Immigration%20Service%20on%20Age%20Test.webarchive
 
“Repatriation is central to policy on solitary underage asylum seekers.” January 2003.
english.justitie.nl/.../ Repatriation%20is%20central%20to%20policy%20on%20solitary%... –
 
Report by the Commissioner for Human Rights, Thomas Hammarberg, on his visit to the Netherlands 21-25 September 2008. UNCHR.
http://www.unhcr.org/refworld/category,COI,,,NLD,49b798190,0.html
 
UN Committee on the Rights of the Child (CRC), Consideration of reports submitted by States parties under article 44 of the Convention : Convention on the Rights of the Child : concluding observations : Netherlands, 27 March 2009. http://www.unhcr.org/refworld/docid/49d5f7a20.html

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