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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 93
ians, or family members.” 220 A child should, therefore, not be discriminated
against on the basis, for example, of his or her parents’ irregular
entry onto the national territory.
In any decision concerning children the primary consideration must be
the best interests of the child. 221 The Committee on the Rights of the
Child has affirmed that this overarching consideration as to what is the
best interest of a child requires a clear and comprehensive assessment
of the child’s identity, including nationality, upbringing, ethnic, cultural
and linguistic background, particular vulnerabilities and protection
needs, “allowing the child access to the territory is a prerequisite to this
initial assessment process”. 222 The Committee identifies an obligation to
appoint a competent guardian and, if needed, to provide legal representation.
223 In relation to entry, therefore, unaccompanied or separated
children 224 are always to be granted access under the “best interests”
principle.
Further authoritative guidance on these principles is set out in the
Committee on the Rights of the Child’s General Comment No. 6 (2005):
Treatment of Unaccompanied and Separated Children Outside of Their
Country of Origin. 225
e) Problems linked with family reunification: dependency
In many countries the residence permit of a person who enters a country
for the purposes of family reunification is premised on either (a) the
existence and validity of the permit, whether for work or international
protection reasons, of a primary permit holder, i.e. usually someone who
migrated there first, or (b) his or her family relationship with a citizen
of the country. In both cases the migrant’s residence will depend on the
stability of the relationship with that person. In some countries, those
who migrate for purposes of family reunion have no right to work, and
the fact that their residence in the destination State is so strongly linked
to the person holding the primary permit or the national family member
may lead them to a situation of dependency, where they are unable to
exercise or claim protection for their human rights. In case of divorce
or separation from the principal residence permit holder, they may find
themselves at risk of deportation or, in the absence of a valid residence
220 Article 2.2 CRC. See also, OHCHR Study, op. cit., fn. 219, paras. 21–22.
221 Article 3.1 CRC.
222 See, CRC, General Comment No. 6, op. cit., fn. 138, para. 20 (emphasis added).
223 See, ibid., para. 21.
224 “Unaccompanied children” are children who have been separated from their parents and
other relatives and are not cared for by an adult responsible, by law or custom, for them.
A “separated child” is separated from the parents or any legal or customary caregiver, but not
necessarily from other relatives. Definitions provided for by the CRC in ibid., paras. 7 and 8.
225 See, ibid.