Il progetto Jean Monnet ha avuto ad oggetto lo studio sulla condizione del minore straniero non accompagnato nel contesto nazionale e sovranazionale, con particolare riferimento alle azioni europee dirette a garantire la sua protezione.
L’attivazione del corso “Diritto dell’Integrazione Culturale” presso il Dipartimento di Educazione e Scienze Umane ha consentito agli studenti afferenti al Dipartimento di approfondire tematiche giuridiche con approccio anche multidisciplinare. Allo studio delle nozioni fondamentali inerenti il diritto dei minori è stata affiancata l’analisi degli istituti fondamentali a tutela dei minori che sono estensibili ai minori stranieri non accompagnati.
L’attività seminariale che ha accompagnato il corso ha fornito interessanti spunti riflessivi su questioni pratiche e l’intervento di esperti ha garantito l’analisi di specifiche tematiche (ad esempio minori e scuola, minori e imputabilità, minori e istituzioni).
I convegni annuali hanno poi rappresentato un momento di discussione anche in ambito accademico nazionale ed internazionale per diffondere i risultati intermedi e finali del progetto.
Con riferimento all’attività di insegnamento si rinvia alla pagina relativa all’attività didattica segnalata anche nella sezione “in evidenza”.
L’attività di ricerca sottesa all’insegnamento si è sviluppata dall’ambito nazionale a quello straniero ed europeo per giungere, tramite lo studio delle fonti nazionali, alla elaborazione di “raccomandazioni” finalizzate a stimolare la attuazione di principi comuni.
Sul punto si rinvia alla pagina delle pubblicazioni e si riportano di seguito le linee guida elaborate.
Proposal for guidelines
- Unaccompanied children: definition
Unaccompanied minor is a foreign person, under the age of 18, who arrives on the territory of the country or stays in this territory without an adult who takes care of him in accordance with the law in force in the hosting country. - Legal discipline
In order to guarantee legal certainty and rights’ protection, it is suggested to create an organic (single) text that collects all (reformed) rules concerning the unaccompanied foreign minor. - Non-discrimination rule
Unaccompanied foreign minors have the same rights as minors having citizenship in the country regardless of their nationality, immigration status or resident permit. - Rights recognition
The unaccompanied foreign minor must be received in a suitable accommodation and must be guaranteed care, moral and material support. He has the right to access education and health services. He must be informed about any proceedings concerning him in a language which he understands. He has the right to be heard and to express his opinion. Legal representative and legal assistance must be provided for him.
The minor accesses kindergarten and compulsory schooling in the host country.
Access to the school is allowed at any time of the year. The minor could be assisted by a support teacher if necessary. The school draws up an inclusion program aimed at him acquiring the specific skills for each order and grade.
The foreign minor has access to the health service for any urgent or ordinary treatments. - Identification process and age assessment
The identity and age of the minor must be ascertained within 3 days of arrival on the national territory.
During the assessment procedure he must be assisted by the guardian, the linguistic mediator and the psychologist.
The identification procedure must take place in an appropriate environment and must stop at any time when the result is achieved.
The first step involves the acquisition of the documents in possession of the minor and the informative interview.
The interview is focussed on personal history, travel history, existing family relationships, language skills and maturity of the child.
When clarification is needed, the authorities of the country of origin are consulted, if this is not against the interest of the child.
If the previous steps have not led to a reliable result, upon authorization of the court the minor can be subjected to a medical examination, after obtaining his consent and that of the guardian.
The clinical examination is carried out in specialized centers by a medical team which includes a child neuropsychiatrist. The age assessment must take into account the apparent degree of maturity and respect the dignity of the minor, his sex and physical and mental integrity.
The minor must be informed that medical tests (such as X-ray, CT scan etc.) are characterized by a margin of error.
The results of the assessment and tests must be communicated to the minor, together with the information for appealing negative decision about minor age.
The refusal of medical examinations will be evaluated together with the other elements - Care system
When an accompanied minor arrives on the national territory or he is traced in the hosting country, the child must be located in a first facility accomodation dedicated to minors.
First aid must be provided in the first reception facility.
The minor is guaranteed accommodation, suitable clothing for the season, food and medical assistance.
The minor is supported by a cultural mediator and an interpreter, and the process of appointment of the guardian is started.
Time spent in the first reception facilities must be limited to the period needed to complete the identity and age assessment (no longer than one week).
The placement in a foster family is the preferable solution for the second reception.
The presence of other children and the cultural and religious traditions of the minor will be taken into account when choosing a family.
Foster families are adequately trained to provide emotional support and practical help and assistance with regards to the inclusion needs. Foster families must help the child maintaining personal links with the family of origin where this is appropriate and possible.
When the placement in foster families is not possible, the minor will be placed in state or local structures (reception facilities) that will take care of him.
A legal representative of the minor is identified and he is responsible for the minor’s educational project.
Reception facilities are subject to a process of regular monitoring, which includes interviewing the child.
Reception facilities work with other stakeholders to facilitate the social inclusion of the minors.
In case of minors over the age of 16, placement in shared apartments or accommodation is allowed.
In any case, supervision by national social services guarantees that the rights of the child are exercised. - Guardianship
The suggestion is for a single individual who carries out all the duties of the child’s care.
When the unaccompanied foreign minor is on the national territory, he must be assisted by a guardian appointed by the judicial authority or by a government body.
Every child should have a guardian regardless of his immigration status.
The appointment must take place as soon as possible and in any case before ascertaining the identity and age.
The guardian has the following functions:
— legal representation of the minor;
— care of the minor (i.e. promotion of well-being, adequate standard of living, appropriate
housing, healthcare, education, training)
— assistance and support (assessment of individual needs, material assistance, integration
in the hosting country, life project, gathering information)
— asset management
— safeguarding the rights of the child
— protection of the well-being of the child
— cooperation with institutions.
In particular, the guardian will be able to help the minor in the application for asylum or international protection, repatriation, age assessment procedure (i.e. consent to medical treatment), residence permit, request for damages, all civil, criminal and administrative proceedings.
The guardian is appointed from a list of qualified individuals, kept by the court or government body.
The requirements for the admission to the list of eligible individuals are:
— age over 25 years
— exercise of civil rights
— good behaviour
— possession of suitable qualifications.
The guardian will be subject to annual training.
The guardian has the right to reimbursement of expenses, to paid leave to carry out his / her role, and has an insurance to cover damage paid by the state.
The court or government agency will supervise the performance of the guardian and will periodically update the lists of qualified individuals.
Each guardian may have a maximum of three minors in charge.
The guardianship lasts until the child reaches adult age or parental responsibility is restored in favour of parents or relatives. - Resident permit
The unaccompanied foreign minor (except in the case of a minor seeking asylum or international protection for which a specific permission is required) has the right to a residence “permit for minors”, which lasts until the conclusion of the educational project for social integration has been reached. - Durable solution
In the year before reaching adult age, the minor is supported by a nationally recognized association which, in collaboration with social services, implements practical measures to support his integration into the world of work or his intention to continue school or training.
The association will take care of finding accommodation in apartments or shared housing. - Non refoulement and expulsion
The minor cannot be refouled at the border.
Expulsion (except in the case of a minor seeking asylum or international protection) can only be ordered by the judge when it does not involve a serious risk for the minor.
Voluntary repatriation of the child is always allowed (in the country of origin or in a third country) when it has been possible to trace the family of origin and it is not in contrast to the interest of the child.