Separated Minors or the Dilemma between General and Individual Interest in European Union Migration Law Compliance

Abstract

Separating children traveling accompanied by a nonfamily adult is a current practice serving the general purpose of fighting against sexual exploitation, minor trafficking, or general crime prevention. However, such a routine response could violate a minor’s right to family life or preclude an attempted migration to reunification. Although no specific normative framework exists for this migratory category, we will draw our analysis of the conflicting interests by resorting to human rights case law. On the one hand, the expansion of the legally recognized concept of family must help protect interpersonal bonds not based on biological relationships, according to the European Court of Human Rights and the Court of Justice of the European Union. On the other hand, restrictions to the right to family life can be taken for fighting against crime, although a goal of general prevention may not comply with human rights standards on the limitation of rights. The required balance between conflicting interests can be established by resorting to the best interests of the minor. To conclude, we argue that this category could certainly benefit from a concerted, common legislative action at the level of the European Union when revisiting the migration legal regime, alongside operational measures at national, regional, and local levels. Received: 31 July 2022 Accepted: 05 October 2022

Keywords

• migration law
• separated minors
• foreign unaccompanied minors
• right to family life
• best interests of the minor
• human trafficking