Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 91
In deciding whether there is a positive obligation of the State under
Article 8 ECHR with regard to family reunification between adults and
their children, the European Court will have regard to the age of the
children concerned, their situation in their country of origin and the extent
to which they are dependent on their parents. 210 In one case, the
European Court of Human Rights found that an “insurmountable obstacle”
to living a family life outside of the country of residence existed
because the mother seeking family reunification with her child who had
been left in the country of origin, also had a second child in the country
of destination who had grown up there. In this case, the Court found
that the reunification in the country of destination would have been the
most adequate solution to develop a family life, considering the difficulties
that a resettlement of the whole family in the country of origin
would have caused to the second child. 211
d) Unaccompanied minors and family reunification
The CRC obliges States “to provide, as they consider appropriate,
co-operation in any efforts by the United Nations and other competent
intergovernmental organizations or non-governmental organizations
co-operating with the United Nations to protect and assist a refugee
child and to trace the parents or other members of the family of any
refugee child in order to obtain information necessary for reunification
with his or her family. In cases where no parents or other members
of the family can be found, the child shall be accorded the same protection
as any other child permanently or temporarily deprived of his
or her family environment for any reason, as set forth in the present
Convention.” 212 As the Committee on the Rights of the Child has clarified,
“tracing is an essential component of any search for a durable
solution and should be prioritized except where the act of tracing, or
the way in which the tracing is conducted, would be contrary to the best
interest of the child or jeopardize fundamental rights of those being
traced. In any case, in conducting tracing activities, no reference should
be made to the status of the child as an asylum-seeker or refugee”. 213
The UNHCR Executive Committee also found that “every effort should
be made to trace the parents or other close relatives of unaccompanied
minors”. 214 The African Charter on the Rights and Welfare of the Child
210 See, Tuquabo-Tekle and Others v. the Netherlands, ECtHR, op. cit., fn. 187, paras. 44–50;
Sen v. the Netherlands, ECtHR, op. cit., fn. 187, para. 37;
211 See, Sen v. the Netherlands, ECtHR, op. cit., fn. 187, paras. 40–41.
212 Article 22.2 CRC.
213 CRC, General Comment No. 6, op. cit., fn. 138, para. 80.
214 Conclusion No. 24, UNHCR, op. cit., fn. 180, para. 7; Conclusion No. 84 (XLVIII) on Refugee
Children and Adolescent, ExCom, UNHCR, 48 th session, 1997, para. (b)(i). See also, Guidelines
on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum,
UNHCR, February 1997.