CMW/C/GC/3-CRC/C/GC/22
prevention and reduction — to the maximum extent possible — of migration-related risks
faced by children, which may jeopardize a child’s right to life, survival and development.
States, especially those of transit and destination, should devote special attention to the
protection of undocumented children, whether unaccompanied and separated or with families,
and to the protection of asylum-seeking children, stateless children and child victims of
transnational organized crime, including trafficking, sale of children, commercial sexual
exploitation of children and child marriage. States should also consider the specific
vulnerable circumstances that could face migrant children on the basis of their gender and
other factors, such as poverty, ethnicity, disability, religion, sexual orientation, gender
identity or others, that may aggravate the child’s vulnerability to sexual abuse, exploitation,
violence, among other human rights abuses, throughout the entire migratory process. Specific
policies and measures, including access to child-friendly, gender-sensitive and safe judicial
and non-judicial remedies, should be put in place in order to fully protect and assist such
children, aiming to facilitate their ability to resume their lives with their rights as children
fully respected, protected and fulfilled.
43.
The Committees underline the interrelation between articles 2, 6 and 27 (1) of the
Convention on the Rights of the Child; States parties should ensure that children in the
context of international migration, regardless of their status or that of their parents, have a
standard of living adequate for their physical, mental, spiritual and moral development.
44.
The Committees are concerned that policies or practices that deny or restrict basic
rights, including labour rights and other social rights, to adult migrants owing to their
nationality, statelessness, ethnic origin or migration status may directly or indirectly affect
children’s right to life, survival and development. Such policies would also obstruct the
design of comprehensive migration policies and the efforts made to bring migration into the
mainstream of development policies. Therefore, in line with article 18 of the Convention on
the Rights of the Child, States parties should ensure that children’s development, and their
best interests, are taken fully into account when it comes to policies and decisions aimed at
regulating their parents’ access to social rights, regardless of their migration status. Similarly,
children’s right to development, and their best interests, should be taken into consideration
when States address, in general or individually, the situation of migrants residing irregularly,
including through the implementation of regularization mechanisms as a means to promote
integration and prevent exploitation and marginalization of migrant children and their
families.
E.
Non-refoulement, prohibition of collective expulsion (articles 9, 10 and
22 of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families; articles 6, 22 and 37
of the Convention on the Rights of the Child)
45.
States parties should respect non-refoulement obligations deriving from international
human rights, humanitarian, refugee and customary international law. 16 The Committees
highlight that the principle of non-refoulement has been interpreted by international human
rights bodies, regional human rights courts and national courts to be an implicit guarantee
flowing from the obligations to respect, protect and fulfil human rights. It prohibits States
from removing individuals, regardless of migration, nationality, asylum or other status, from
their jurisdiction when they would be at risk of irreparable harm upon return, including
persecution, torture, gross violations of human rights or other irreparable harm.
46.
The Committees are concerned that some States parties choose to recognize a narrow
definition of the non-refoulement principle. The Committees have already pointed out 17 that
16
17
Article 33 of the 1951 Convention relating to the Status of Refugees, article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and article 16 of
the International Convention for the Protection of All Persons from Enforced Disappearance.
See Committee on the Rights of the Child, general comment No. 6, para. 27, and Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families, general comment
No. 2 (2013) on the rights of migrant workers in an irregular situation and members of their families,
para. 50.
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