Challenging concepts of the ‘child’ in asylum and immigration law: the example of the EU

Abstract

This paper challenges dominant concepts of the child in migration law, using recent legislative activity at European Union (EU) level as a case study. The Treaty of Amsterdam 1997 (which entered into force 1999) gave the EU competence to pass binding legislation on asylum and immigration. What has followed is a body of law that governs a number of types of migration and stages of the migration process, the overwhelming majority of which makes specific provision for children. This paper demonstrates that the EU's legislative activity in this area has had, and will continue to have, an appreciable impact on the legal regime governing child migrants. Furthermore, it questions the characterization of the child migrant found in this legislation, and its subsequent interpretation by the European Court of Justice. The validity of an emerging categorization of children according to age thresholds, their reasons for leaving their country of origin, their stage in the migration process and their nationality is examined. In particular, it is argued that the EU risks undermining its own commitment to children's rights by basing its laws on assumptions about childhood and the migration process that lack empirical grounding. As the EU looks towards an increasingly explicit and extensive agenda in relation to young immigrants and asylum-seekers, it is argued that more robust methods of incorporating children's rights into laws and policies must be sought.

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