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Landmark decision in the Netherlands: 2 May 2012

The Court in The Hague has given a landmark decision on the implementation of human rights for undocumented students. The Court decided on 2 May 2012 in favour of a 21-year old student who filed a complaint against the Dutch State concerning the law which prohibits undocumented children from doing internships. The court declared that by prohibiting access to an internship during an educational programme, the State acts unlawfully, violating the right to education. Defence for Children the Netherlands supported the student during his procedure and is delighted with the Court's recognition of the right to education. After years of promises from the Government and a broad range of interventions at local and national level from politicians, human rights organisations, trade unions, the media and entrepreneurs, this judgment seems to end the internship problem for children without a residence permit.

The student had summoned the Dutch State to Court because it was impossible for him to access an internship - a prerequisite to obtain his diploma. He had finished all his theoretical courses for his insurance and banking course but could not complete his education because he was not allowed to do the compulsory internship. The student has no residence permit. Therefore it was not possible for him to get a work permit, which is required for foreign students to do an internship.

The prohibition from internships affects the very essence of the right to education
In the student's procedure versus the Netherlands, his lawyer Jelle Klaas of Fischer Lawyers, mainly based his appeal on Article 2 of the First Protocol of the European Convention for the Protection of Human Rights (ECHR) which states that no person should be refused education. Klaas stated that this right should be 'practical and effective'.

The Dutch government claimed that the student could have filed a request to receive a study visa. The Court did not agree with this argument. The issue is not about whether it may be possible to receive a residence permit, but about the fact that as long as a person lives in the Netherlands, his or her human rights must be respected by the Dutch state.

The Dutch State further claimed that the right to education is not absolute and may be restricted. The Court recognized that the State can restrict the right to education, but only with a legitimate aim and in a proportional way. The core of the right to education may not be restricted. The objective pursued by the State, to exclude a person without a residence permit from social services and working in the Netherlands, is not a sufficient justification to restrict the right to education. The prohibition of internships affects the very essence of the right to education.

"This is an excellent judgment", declared Klaas. "The Court recognizes that every child in the Netherlands, regardless of his or her residence status, has the full right to education. Finally this student can start with his internship and receive his diploma."

Council of Europe calls member states to permit access to internships
In 2011, the Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe recommended that member states permit undocumented children to access internships when these are part of the education cycle. It was one of the recommendations in the report 'Undocumented migrant children in an irregular situation: a real cause for concern' of the Spanish rapporteur Mr Pedro Agramunt Font de Mora, which was published in September 2011. Defence for Children the Netherlands hopes other member states will also be encouraged by this judgment in the Netherlands to allow undocumented children access to internships.

Link to the judgment of the Hague Court (in Dutch)
Link to the report of the Council of Europe 

For more information please contact Defence for Children, Martine Goeman: m.goeman@defenceforchildren.nl

Members of the European Parliament Sargentini (Greens party) and Wikström (Group of the Alliance of Liberals and Democrats for Europe) advocate for European guardianship rules for separated children. On the 30th of November 2011, they received a report on this issue and have signed to act as ambassadors of the Core Standards for Guardians. Defence for Children is enthusiastic about the support from these Members of the European Parliament. The first step has been taken to empower guardians to act as a watchdog dedicated to defending the rights of the child.

Specific EU legislation for guardians required
The protection and care separated children receive from their guardians differs depending on the country which the child has (often randomly) entered. This is unacceptable. All European countries have signed the Convention on the rights of the Child (hereafter: CRC). Therein, the obligation to take into account the specific needs of separated children is laid down. Sargentini is enthusiastic about the Core Standards for guardians of separated children which are the result of an extensive project that was coordinated by Defence for Children in eight European countries. "Now we are going to promote the standards for guardians everywhere when it comes to separated children. However, more needs to be done. There have to be European rules on the qualifications of guardians". Defence for Children shall take this into account when developing a follow-up project.

Trust takes time
At the launch of the Core Standards for guardians at the European Parliament, a former separated child and her guardian gave a presentation. For all participants it was hard not to get emotional when the former separated child talked about her worries as a nine year old girl on a dangerous journey sitting in a bus. Under her arm she had her eight year old brother and under her other arm her seven year old sister. As a separated child she distrusted her guardian at first, just as she distrusted all strangers. "I only wanted to keep my distance and protect my sister". Her former guardian explained how she took the time to make the girl feel at ease and to get to know her. The girl has turned into a woman now and told her story because she is worried about the separated children who enter Europe today. "I experienced the warm and affectionate side of Europe, was given the room and guidance to deal with my trauma's and was able to develop my talents. But above all I was given trust. I was welcomed. If I would enter the Netherlands now, a cold reception would await me".

Clean Hands
Member of Parliament Wikström was, just like Sargentini, highly touched by the story of the former separated child and was convinced to work with the Core Standards for guardians. Though she wanted to add an eleventh standard: "Guardians have to keep their heads cool, their heart warm and keep their hands clean". Then the former separated child, upon request, added that guardians should not forget that their pupils are children first and foremost who need rest and safety. "Talk with them, play with them. Give them a teddy bear and make sure that they can be a child again."

Strong weapon for guardians
"As from now guardians of separated children have a powerful weapon in their hands to improve their position", stated Martine Goeman from Defence for Children at the launch. On the basis of the CRC the opinion of the guardian should have more weight in decisions regarding separated children. Furthermore, they should be able to spend more time with each child and should for instance play a role in the safe return of children, when that is in the best interest of the child.

Orphanages in Afghanistan
Martine Goeman addressed the latest news. This week the Norwegian authorities reached an agreement with Afghan authorities to establish a return shelter in Kabul, in order for young Afghani asylum seekers to be sent back. There are multiple European countries collaborating on this issue and most likely more countries will want to send separated children back to reception facilities in the country of origin. "Were the guardians in Norway able to participate during the negotiations on the plan of a return shelter?", Martine Goeman asked. "Were they able to share their opinion as to whether this was in the best interest of the child and was that vision seriously considered; as required by the CRC?". With the Core Standards for guardians as a tool, guardians should feel empowered to speak up and advocate for the recognition and participation of themselves and their pupils in all procedures and plans that have an impact upon them.

The Core Standards for guardians of separated children in Europe are available in the folowing languages:
- international report with the Core Standards
- Dutch
- German
- Danish
- English
- French
- Italian
- Slovenian
- Swedish

For more information or an interview with Judith Sargentini (Member of European Parliament for the Green Party) please contact: Martine Goeman: m.goeman@defenceforchildren.nl of +31 (0) 71 516 09 80.

Separated children and guardians voice their opinion in the project 'Closing a protection gap for separated children in Europe. In eight national reports they talk about the qualifications and responsibilities of the guardian in relation to reception, return, legal procedures and a durable solution for the child. Separated children state what they would do if they would be a guardian. In 2011 the input from the national reports will lead to the development of core standards for guardians of separated children in line with the Convention on the Rights of the Child, EU Directives and the Quality4Children standards for children in out of home care.

Separated children and guardians speak up

The recommendations in the national reports and the core standards for guardians will provide an instrument to strengthen the qualifications of a guardian to take the special needs and rights of separated children into account. The current differences in the level of protection separated children receive in European countries is not acceptable. All European countries have signed the Convention on the Rights of the Child and have the obligation to take into account the special needs of separated children. Proper guardianship systems are essential to assist in finding a durable solution for separated children, whether that be return to their country of origin, transfer to another country (for example for family reunification) or integration into the host country.
When all guardians have sufficient qualifications to work in the best interest of the child the level of protection children receive in the different European countries will harmonize.

Click here for the eight national reports:

The Netherlands

Belgium

Denmark

Germany

Ireland

Italy

Slovenia

Sweden

Closing a protection gap partners: Defence for Children-ECPAT the Netherlands (coordinator), Plate-form Mineurs en exil – Service Droit des Jeunes: Belgium, Save the Children-Sweden, Defence for Children-Italy, Save the Children-Denmark, Slovene Philanthropy: Slovenia, Irish Refugee Council Ireland, Bundesfachverband UMF: Germany.

The publications have been produced with the financial support of the Daphne III Programme of the European Commission. The contents of this publication are the sole responsibility of the author and can in no way be taken to reflect the views of the European Commission.