Accompanied children in the Finnish asylum process: inadequate best interests assessments
Legislative age limits and migration policies concerning children’s right to be heard hinder best interests assessments of accompanied children. The Views of the UN Committee on the Rights of the Child in A.B. v. Finland demonstrate the need for reform.
A.B. v. Finland concerns the rejection by Finnish authorities of the asylum applications of same-sex parents and their son fearing persecution and discrimination in Russia. In it the Committee found that the child’s right to have his best interests taken as a primary consideration under Article 3 of the UN Convention on the Rights of the Child had been violated due to a failure to consider the child’s views in the asylum process (See Commentary by Sormunen). The Committee had underscored the interrelatedness of Article 3 CRC with the right to express views under Article 12 CRC before, in its General Comments No. 12 and 14.
The case illustrates the need for the Finnish authorities to act upon at least two identified gaps concerning the implementation of Article 3 CRC in the asylum process to avoid similar violations from occurring in the future.
Firstly, although the Aliens Act of Finland obliges authorities to pay special attention to the best interests of the child in any decisions concerning him/her, a general obligation to hear a child concerns only children aged 12 or older.(See, e.g., a decision about a 14-year old accompanied child where the Court referred to the Committee’s General Comment No. 12 and to the obligation to assess a child’s capacity to express views on a case-by-case basis). Younger children may be heard if the child is sufficiently mature to have his or her views taken into account. The wording of the provision is problematic and may, as a general rule, limit the realisation of the right to express views based on a chronological age as illustrated by A.B. v. Finland. The provision does not adequately reflect the two dimensions of Article 12 CRC – 1) the right of a child capable of forming views to express their views and 2) the right to have the expressed views given due weight in accordance with the child’s age and maturity. Instead, the Aliens Act implies that, for a child younger than 12 to express views, it must first be established that the child is mature enough to have his/her views taken into account. In order to adequately implement Article 3 CRC, the Act should reflect both of the said dimensions and the case-by-case-based assessment of the prima facie capability to express views (General Comment No. 12) should be guaranteed equally for children under the age of 12.
Secondly, the Finnish Immigration Service (FIS) has reported that in practice, accompanied children, regardless of their age, are not always heard, nor are their opinions investigated adequately. In FIS policies, the right to be heard of unaccompanied children is surrounded by more safeguards (Government’s publication, 2021). This illustrates an assumption that for children accompanied by parents it is sufficient that the parents are informed and heard within the asylum procedure, instead of the child. As a result, accompanied children may not be provided with the same rights and safeguards as unaccompanied children (Stephanie Rap 2020). This leads to the failure to consider the child’s views and individual protection requirements and thus, to adequately conduct the best interests assessment.
The case of A.B. v. Finland demonstrates that there is a need to recognise the interrelatedness of Articles 3 and 12 CRC throughout Finnish migration policies and practice without using age as a limitation. The legislator, policymakers and authorities must take all necessary steps to ensure that every
accompanied child’s right to express his or her views in the process is recognised as part of a best interests assessment.