RED Network

In June 2011 the Head of the Cyprus representation of UNHCR complained to the Equality Body about the absence of any form of legal advice to and representation of unaccompanied minors in the asylum procedure. The complaint pointed out that, owing to a disagreement between the different stakeholders, the 50 or so underage unaccompanied asylum seeking minors are not legally represented before the competent authorities, which amounts to discrimination on the ground of age and status and failure of the Cypriot government to provide them with adequate protection without discrimination. Whilst the Refugee Law imposes the duty of representation and assistance of these children to the Child Commissioner, a disagreement arose as to the manner of carrying out this mandate. The Child Commissioner argued that for the purposes of carrying out the responsibility given to her office, the hiring of legal services by lawyers with knowledge and training in refugee law is required, as neither the Commissioner herself nor any officers of her office are necessarily legally qualified to adequately represent minors throughout the asylum procedure. The Ministry of Interior and the Asylum Service, based on an opinion by the Attorney General, dispute the Child Commissioner’s interpretation of the law that unaccompanied minors can be represented by private lawyers acting on behalf of the Child Commissioner. Instead, they argued that the minors ought to be represented either by the Commissioner in person or by officers of her office. Given that only a change in the law would resolve the matter, the issue was led for discussion in the Parliamentary Committee of Interior. However, the discussion led to a stalemate, as both the Attorney General and the Permanent Secretary of the Ministry of Justice objected to the representation of minors by private lawyers, arguing that this is contrary to the Legal Aid Law and results in burdening the state budget. This deadlock resulted in the non- application of the statutory provision for legal representation of unaccompanied minor asylum seekers from the Child Commissioner; the consideration of their asylum applications is suspended until they reach adulthood.

The Equality Body report found that the requirement for "representation and assistance" of unaccompanied minors in the examination of their asylum application, as provided by the Refugee Law, corresponds to rights guaranteed by the EU acquis and by the Convention on the Rights of the Child. In addition, the principle of non-discrimination as interpreted by the UN Committee on the Rights of the Child regarding unaccompanied children prohibits discrimination on the basis that children are unaccompanied asylum seekers or refugees or immigrants. Moreover, the principle of equal treatment requires that the right of legal representation for unaccompanied minors seeking asylum be secured and not deferred until maturity as this amounts to a breach of the principle of non discrimination. The report calls on the Interior Ministry to promote the amendment of legislation in order to resolve the stalemate.

The report identifies the seriousness of the legal vacuum created by the disagreement between the various stakeholders but fails to propose a concrete solution or to offer its own interpretation of the refugee law, by way of a proposal to resolve the matter. Also, the equality body does not appear aware of the fact that this state of legal limbo for unaccompanied minors was identified as an area of concern by the Fourth ECRI Report on Cyprus, published more than a year ago.[1]

During its investigation, the equality body enquired whether any measures are taken to protect the unaccompanied minors especially as regards the possibility that they may be victims of trafficking. In response, the Asylum Service reported that a number of other governmental departments are also involved in this field. This was, oddly enough, considered by the equality body as a satisfactory response.

Overall, the equality body did not identify a long series of disadvantages for the unaccompanied minors, emanating from the authorities’ policy of not examining their applications until they reach maturity: First, as adults, the applicants are unlikely to remember at the interview the events that led them to leave their country of origin; secondly, as adults they may be reluctant to share information about having been sexually abused as children; thirdly, the situation in their countries may have changed in the meantime and the events that caused them to flee may no longer be happening or the information about it may no longer be retrievable; fourthly, they may have lost touch with their families because of no prompt tracing, and fifthly, if s/he is a victim of trafficking, s/he will almost certainly disappear in the meantime and will not be around in order for his/her application to be processed when s/he becomes an adult.

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