Unaccompanied minors coming to Germany are protected through international as well as national laws. In international legislation there are laws which account equally for refugee children as well as for adult refugees, whereas the UN Convention on the Rights of the Child, the Hague Convention on the Rights of Minors are special laws and agreements on the protection of minors, as well as the German Youth and Welfare Law at a national level.

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Unaccompanied minors coming to Germany are protected through international as well as national laws. In international legislation there are laws which account equally for refugee children as well as for adult refugees, whereas the UN Convention on the Rights of the Child, the Hague Convention on the Rights of Minors are special laws and agreements on the protection of minors, as well as the German Youth and Welfare Law at a national level. The most important international agreement for refugee children is the UN Convention on the Rights of the Child (20 November 1989) which came into effect in Germany in 1992. With ratification of this agreement signatory states have to change national laws in accordance with the international agreements for the well-being of the child. Article 2 is a general prohibition of discrimination, article 3 is the obligation for public and private organizations to consider the well-being of the child for all measures which apply to children and article 9 states that a child may be separated from its parents only if it is for his or her well being. Article 19 expects from the signatory states to prevent children of physical and psychological violence, mistreatment or exploitation including sexual abuse.

Additionally to these general protection mechanisms for all children, the agreement includes in article 22 concrete determinations for children refugees. No matter if they are with or without parents, a child that wants to be accepted as refugee has to be treated accordingly and has to receive protection and humanitarian help.

The Hague Convention for the Protection of Minors (October 5, 1961) was accepted in Germany in 1971. Persons are treated as minors according to the national law of the reception country. The state in which the minor has its usual place of residence is responsible for the protection of its life and property (it usually applies if a minor has been living in a country for six months). According to the German Children and Youth Welfare Law (Kinder und Jugendhilfegesetz) every young person has a right to be supported in his/her development and upbringing in order to become a self-reliant personality with a sense of community. Minor refugees have a legitimate claim to benefits by the respective youth welfare office, which is obliged to take them under protection, pay their maintenance, secure health care and appoint a guardian.

The German Civil Code contains regulations concerning guardianship, according to which the guardianship court nominates preferably an individual guardian, but also a member of an organization. The guardian has to advocate on behalf of his ward by law, is responsible for the initiation of the procedure and for the assessment of the residence status which is also needed by aliens under 16 years. The guardian usually applies for asylum on behalf of his ward or will submit an application for granting toleration or residency authorization. Accommodation usually takes place in a youth help organization recognized according to the Children and Youth Help Law. If the parents do not live in Germany, the youth welfare office submits an application for a legal guardian to the respective guardianship court.

The Citizenship Law [Staatsangehörigkeitsgesetz; StAG] contains a transitional regulation for children born in Germany and not older than ten years on January 1, 2000. They have a statutory right to naturalization [Anspruchseinbürgerung] when their parents fulfill specific requirements and apply for the naturalization of the child by December, 1st, 2000.

The entry and residence of refugees is regulated through various permits. As for all refugees the status unaccompanied minors receive is important because every status includes individual rights such as residence, social security, medical care, educational opportunities and protection against deportation. Children and youths without residency status are in a weak legal position. Many of them arrive in Germany without papers nor visas through the help of adults who bring them across the border and some of them do not register with the authorities thereafter. Others arrive legally but stay on beyond the expiry date of their visas. It is also possible that after an unsuccessful asylum application they disappear for fear of deportation or even during the asylum procedure. Some minors try to find work without authorization because they cannot expect to be granted a work permit.

The situation for these minors is especially dramatic since they are without protection against exploitation and violence and have no access to education.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.

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