Samenvatting

At the end of the nineties, many unaccompanied minor asylum seekers (UMAs) came to the Netherlands due to wars and continuing violence in the world. Many UMAs try to find a new home and ask for asylum in order to get protection. Therefore, the asylum issue has become an urgent item on the political agendas of liberal democratic countries in recent years. The Dutch asylum policy concerning UMAs is thus high on the priority list of politicians. At international en European level, numerous declarations and conventions have been signed, deportation programs have been set up and the debate still continues.
Even though only the Netherlands has special policy concerning UMAs, the assessment procedure in other European Union countries is quite similar. In the beginning of the procedure, it is assessed whether the UMA qualifies for a residence permit or a refugee status. If they do not qualify, the UMA has to return to the country of origin, if adequate shelter and care is available. If there is no adequate shelter and care, the UMA is often granted a residence permit on humanitarian ground. In most countries, UMAs are placed under custody of a guardian. Belgium, Portugal and the United Kingdom do not offer this care. Most countries do have special shelter facilities for minor asylum seekers, although it is not clear whether it is sufficient and adequate.
The United Nations Declaration of the Rights of the Child, the Convention on the Rights of the Child and the European Convention on Human Rights are important tools that ensure protection and care for the vulnerable child. Under these conventions, these young asylum seekers should be allowed to develop adequately. Special provisions are necessary in order to provide these children protection and care. However, the current immigration policy does not fulfil these necessities entirely such as appropriate guidance by a legally adult representative or adequate shelter.
The right to development has not been the primary consideration when making the Dutch immigration policy. As a consequence, the UMA was approached as an alien instead of a minor with right to protection. At present, the 1951 Convention relating to the Status of Refugees determines if an UMA is qualified for a refugee status, however, the final decision-making should be judged on the basis of violation of human rights. In this case, the UMA will be better protected legally and the age of minority can be taken into account which will stimulate the development of UMAs. New Dutch policy concerning UMAs should emphasize the best interests and development of the child. The Child Asylum Law 2012 should provide clarity on the future of the UMAs who are already living in the Netherlands for five years or longer and now are 'rooted'. This is a positive development, in line with the conventions and declarations, which will protect the best interests of the child. In addition, the Netherlands, adopted the Children's pardon 2013 which will grant many UMAs who have been living in the Netherlands for numerous years, a residence permit if they meet all of the necessary criteria.
Jurisprudence shows that asylum procedures include a long period of time which is shown in the Taida-case and that the focus has to shift from executing legal procedures to the best interests of the child. The Mauro-case demonstrates that 'rooting' has become a significant aspect of criteria concerning UMAs. A more human approach should be applied according to the United Nations Declaration for the Rights of the Child, the Convention on the Rights of the Child and the European Convention on Human Rights.
In the future, it would be desirable to see the organisations involved in shelter facilitations and behavioural scientists to work together more closely. The focus of the asylum procedure concerning UMAs should shift from legally lawful procedures to the best interests of the child and it should not take too long, otherwise the UMA will already be 'rooted' in the Netherlands.