Panorama general de los derechos fundamentales de los niños migrantes

States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status

“… all children within a State, including those with an undocumented status, have a right to receive education and access to adequate food and affordable health care”.

• Place the principle of non-discrimination regardless of status at the centre of all migration policies and procedures, including border control measures related to migrant children.
• Adopt and implement measures to ensure that migrant children have access to education, health care, child protection services, social protection, child-friendly justice mechanisms and legal identity.
• Create measures to tackle xenophobia, racism and discrimination against migrant children.
• Conduct a gender analysis of the specific impacts of migration policies and programmes on children of all genders.
• Review and amend any gender-discriminatory restrictions on migration in law or practice that limit opportunities for girls or that do not recognize their capacity and autonomy to make their own decision.
• Systematically record incidences of discrimination against migrant children and investigate and sanction the conduct that led to such incidences appropriately and effectively.

• Apply article 3 of the Convention on the Rights of the Child (CRC) in all State actions and measures that affect children as a group.
• Consider the principle of the best interests of the child when developing laws, policies and procedures and when allocating resources.
• Conduct the assessment and determination of the best interests of the child in line with article 3(1) of the CRC.
• Demonstrate that the best interests of the child have been a primary consideration in all judicial and administrative decisions as well as policies and legislation that concern children.
• If a legal provision is open to more than one interpretation, choose the interpretation which most effectively serves the best interests of the child.
• When a decision is to be made that will affect a child, include in the decision-making process an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned.
• Develop policies to ensure that the best interests of the child have been assessed and taken as a primary consideration in decisions and actions taken by the private sector, including those providing services, or any other private entity or institution making decisions that concern or impact on a child.

Article 6(1) and Article 6(2) promulgate that States Parties have a responsibility to recognize that every child has the inherent right to life, and to ensure to the maximum extent possible the survival and development of the child. 

• Create an environment conducive to ensuring, to the maximum possible extent, the survival and physical, mental, spiritual, moral, psychological and social development of the child, in a manner consistent with human dignity, in order to prepare the child for an individual life in a free society.
• Reduce migration-related risks faced by children, and protect children from those risks, as they may jeopardize their right to life, survival and development.
• Consider children’s development, and their best interests, when developing policies and decisions aimed at regulating their parents’ access to social rights, regardless of their migration status.
• Implement regularization mechanisms as a means to promote integration and prevent exploitation and marginalization of children and their families.

1.  States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2.  For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law

• Provide migrant children and adolescents with the opportunity to express themselves and to participate in decisions and matters that affect their future. This is particularly relevant in situations regarding the assessment and referral of migrant children, whose opinion may not always be given due consideration, or when deciding on the best interests of the child.
• Provide children with all relevant information on, among other things, their rights, the services available, the means of communication, the complaints mechanisms, the immigration and asylum processes and their outcomes in a child sensitive and age-appropriate manner.
• Appoint a qualified legal representative free of charge for all children, including those with parental care, and a trained guardian for unaccompanied and separated children.
• Facilitate accessibility to a complaints mechanism for children.

A child should be registered immediately after birth and have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. It further provides for States parties to ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

• Take all necessary measures to ensure that all children are immediately registered at birth and issued birth certificates, whatever their migration status or that of their parents.
• Remove legal and practical obstacles to birth registration. For instance, build firewalls to prevent data sharing between, on the one hand, health providers and civil servants responsible for registration, and on the other hand immigration enforcement authorities; and do not require documentation of migration status from parents.
• Facilitate late registration of birth and avoid financial penalties for late registration.
• In some situations, a child’s identity documents might have been procured irregularly on their behalf, and the child might request the restoration of their identity documents. In such situations, consider adopting flexible measures in the best interests of the child, specifically by issuing corrected documents and avoiding prosecution where falsification has been committed.
• Grant nationality to children born in your territory in situations where they would otherwise be stateless.
• Eliminate discriminatory grounds from nationality laws (transmission and acquisition); for instance, grounds that depend on the child’s parent’s race, ethnicity, religion, gender, disability or migration status.
• Grant equal rights to the child’s parents to confer nationality to their children.

States Parties are to ensure that applications for family reunification are dealt with in a positive, humane and expeditious manner, including facilitating the reunification of children with their parents. When the child’s relations with his or her parents and/or sibling(s) are interrupted by migration (in both the cases of the parents without the child, or of the child without his or her parents and/or sibling(s)), preservation of the family unit should be taken into account when assessing the best interests of the child in decisions on family reunification

• Adopt solutions that fulfil the best interests of the child, along with their rights to liberty and family life.
• Allow families to move together, and allow separated families to reunify.
• Make available regular and non-discriminatory migration channels. As well, provide permanent and accessible mechanisms for children and their families to access long-term regular migration status or residency permits based on grounds such as family unity, labour relations, social integration.
• Interpret the term “parents” in a broad sense to include biological, adoptive or foster parents, or, where applicable, the members of the extended family or community, according to local custom.
• Enact legislation, policies and practices that allow children to remain with their family members or guardians in non-custodial, community-based contexts while their immigration status is being resolved and the best interests of the children are assessed.

• Facilitate family reunification procedures in order to complete them promptly, in line with the best interests of the child. Apply procedures to determine the best interests of the child in finalizing family reunification.
• Put in place measures for parents to reunify with their children and to regularize their status on the basis of the best interests of their children.
• Take measures to avoid undue delays in migration and asylum procedures that could negatively affect the rights of children, including in family reunification procedures.
• Place unaccompanied and separated children in a national or local alternative care system, preferably in family-type care with their own family when available, or otherwise in community care when family is not available.

• United Nations Children’s Fund (UNICEF), Family unity in the context of migration. Working paper.

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

• Include migrant children in national child protection systems. For instance, mandate that child protection services cover migrant children, and that school social workers are trained to care for non-national children.
• Protect children from all forms of violence and abuse, regardless of their migration status.
• Systematically involve child protection professionals in migration proceedings.
• Prevent and combat the illicit transfer and non-return of children as well as the worst forms of child labour, including all forms of slavery, commercial sexual exploitation, and the use of children for illicit activities such as begging and hazardous work.
• Identify and address child’s gender-specific risks and vulnerabilities (read more in Chapter Migrants vulnerable to violence, exploitation and abuse).
• Put in place effective firewalls between child protection services and immigration enforcement, both in policy and in practice.
• Identify child victims of trafficking and provide them with adequate protection (read more in Chapter Trafficking in persons and associated forms of exploitation and abuse).
• Facilitate access for child migrants to comprehensive protection, support services and effective redress mechanisms.

States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.

• Consider families on the move in any campaigns, policies, vaccinations or public health responses and provide them with timely, culturally and linguistically appropriate, child-friendly and relevant information.
• Sensitivize health-care providers to the cultural background of different groups of children on the move; ensure they are educated regarding potential obstacles to providing effective health care to migrant children, and are aware of, and able to undertake, strategies to address such obstacles. Address instances of discrimination by health-care providers.
• As part of prevention, include populations on the move in the Integrated Food Security Phase Classification approaches, whether whilst moving, or when in high-density settings, such as camps, asylum centres, accommodation for migrant or seasonal workers, quarantine centres or immigration detention.
• Include children on the move in all national and routine vaccination campaigns, independent of their migration status.
• Strengthen health systems in fragile contexts and during emergencies so that no child is forced to move in order to survive; recognize that health is an often-overlooked driver for migration, especially family migration.
• Provide universal coverage of primary health services.
• Provide access to health for every child migrant regardless of their migration status.

States Parties recognize the right of the child to education…

• Provide full access for all children, irrespective of their migration status, to all levels of education, including early childhood education and vocational training, based on equality with nationals of the country where those children are living.
• Develop mechanisms for the recognition of qualifications and prior learning for all migrant children
• Provide timely, culturally and linguistically appropriate, child-friendly and relevant information on education for families on the move.
• Integrate learning content on countering xenophobia and discrimination and on fostering tolerance and social cohesion into national curricula.
• Train teachers to better understand and deal with migrant children.
• Reform regulations and practices that prevent children with an irregular migration status from registering at schools and educational institutions.
• Develop effective firewalls between educational institutions and immigration authorities; prohibit the sharing of students’ data as well as immigration enforcement operations on or near school premises.

• Bhabha, J., Child Migration and Human Rights in a Global Age, 2014.
• Bhabha, J., and M. Dottridge, Child rights in the global compacts: Recommendations for protecting, promoting and implementing the human rights of children on the move in the proposed global compacts, 2017.
• IOM, Human Rights of Migrant Children, 2008.