A considerable part of the refugees that came to Germany in 2015 and 2016 were unaccompanied minors. Time and again, their situation, their possibilities and society’s dealing with them are in the spotlight of public debate. In legal terms, unaccompanied minors are subject to the stipulations of Book VIII of the Social Code, in which the Child and Youth Welfare Act is codified. They are thus accommodated, cared for and assisted by the regular youth welfare system in the same way that other minors are. This also means that the accommodation, care and assistance of unaccompanied minors are not primarily dependent upon the decisions on status under residence law.
However, the residence status of unaccompanied minors does play a role especially when looking at the possibilities of integration and social participation or at the possibilities of family reunification. With the transition to adulthood and the changes in legal status connected to this, the residence status of (former) unaccompanied minors becomes decisive.
Accommodation, care and assistance
When children or juveniles enter Germany unaccompanied, they are taken into care by the youth welfare system (Kinder- und Jugendhilfe). As of 2015 this process of taking unaccompanied minors into care is organised in several steps: upon arrival, the youth welfare office on site takes them into preliminary care. Within a short period of time, an assessment is carried out on whether they should stay in that location or be distributed throughout the Federal territory. After the distribution or the exclusion hereof, the phase of regular taking into care follows. During this phase, the situation of the unaccompanied minor as well as further accommodation and youth welfare assistance measures are clarified in a so-called clearing procedure. As part of this step, a guardian is appointed. Further accommodation then mostly takes place in a regular youth welfare institution or in facilities designed specifically to the needs of unaccompanied minors. Such specialised services exist, however, the increase of their capacities as well as a better qualification of the staff are seen as challenges - especially with regards to traumatised unaccompanied minors. Young adults may still be accommodated within the framework of the youth welfare system as long as their individual situation necessitates such support.
The integration of unaccompanied minors into education and employment is given a high priority in Germany. All unaccompanied minors are entitled to schooling. However, access to schools is regulated differently from Land to Land and, partially, also from municipality to municipality. Specific schooling measures for unaccompanied minors are scarce, but different integration measures for newly arrived juveniles can be used by unaccompanied minors. For example, there are preparatory or transitional classes in schools or support and counselling for the transition into a vocational training or into the labour market. Most unaccompanied minors are aged 16 or older when they arrive. As questions of vocational training and employment often become relevant only shortly before reaching adulthood, indirectly, the residence status can have an impact on integration processes: for example, the prospect to remain conditions, whether unaccompanied minors have access to certain support measures before or during vocational training or whether a permit to take up a vocational training is issued at all.
The return of unaccompanied minors to their country of origin or to another state can take place both on a voluntary basis and by force. Explicit legal provisions, however, only exist for the removal of unaccompanied minors. The authorities removing unaccompanied minors have to make sure that transfer, as well as assistance for the minor in the return state, is ensured by a family member, a person with custody or a suitable reception facility. In practice, this legal assurance obligation is often hardly possible to realise, which is why removals of unaccompanied minors are extremely rare. Some Länder, as a matter of principle, do not consider removals of unaccompanied minors. However, there have been refusals of entry at the border and removals following unauthorised entry, as well as transfers under the Dublin Regulation. There are no provisions for the voluntary return of unaccompanied minors in residence law. Return counselling services or the foreigners authorities can indicate possibilities for the financial support of return, for example through the so-called REAG/GARP programme for assisted voluntary return.
A motive of the disappearance of unaccompanied minors is often thought to be them travelling on to family and friends or a dissatisfaction with the decision in the federal distribution process. However, it cannot be precluded that unaccompanied minors can be victims of criminal activity. In order to better clarify the whereabouts of unaccompanied minors and to protect them better, data availability and exchange need to be improved.
Family reunification under youth welfare law and under residence law
In general, living together with their parents and/ or other relatives is in the best interest of a child. On the question of whether and how a reunification of unaccompanied minors with their family can take place, stipulations of both youth welfare law and residence law play a role.
During the preliminary and the regular taking into care, the youth welfare services are obliged to assess the possibility of family reunification within Germany or another Member State of the EU and initiate this process, where possible. During the following accommodation as part of the youth welfare assistance measures, the responsible youth welfare office may also effect a family reunification within Germany (e.g. with uncles or aunts), however, here the stipulations of the respective residence status of the unaccompanied minor concerned come into play, as do questions of competence and responsibility under youth welfare law.
With regards to family reunification under residence law (the subsequent immigration of dependent family members from a third country), the residence status of unaccompanied minors is decisive. Legal differences also exist with regards to the persons that are supposed to immigrate in order to join the unaccompanied minor. The Residence Act foresees different regulations regarding the possibility of family reunification with of parents, siblings and or other relatives.