Une réflexion sur la protection des mineurs non accompagnés à la lumière du droit international et du droit européen

Resumen

Unaccompanied minor, unaccompanied foreign minor, unaccompanied foreign minor, or simply UFM, whatever the name which differs from one country to another, the definition remains common as recognised in Community law. In this case, it is the minor who enters the territory of the Member States unaccompanied by an adult who is responsible for him or her, by law or practice in the Member State concerned, and as long as he or she is not effectively taken into the care of such a person; this expression also covers the minor who has been left alone after entering the territory of the Member States. The presence of UFMs in the community-citizen landscape is no longer a sporadic phenomenon. Since the 1990s, UFMs have been taking every possible route to reach their Eldorado, even though they know their lives are in danger. Their presence, which is widely noticed, calls for international organisations, civil society and NGOs to join their efforts and adopt a legal framework to protect children. it is regrettable to contrast that this is absolutely not the case for UFMs. This study of reflection on the protection of UFMs in international and European law has enabled us to highlight the fact that in the former there is an absence of a binding international legal instrument that allows both the protection of UFMs and a framework for this phenomenon. It appears that the International Convention on the Rights of the Child cannot be adapted to the case of UFMs mutatis mutandis. With regard to the second, the visibility of UFMs in legal texts cannot be underestimated. Nevertheless, the phenomenon is dealt with in a scattered manner between directives and regulations. Subsequently, there is a total absence of a legal act governing UFMs in particular, hence the need for a regulation or a directive to better manage and control this phenomenon. Although in the case of a directive, as is the case at present, it will help to address a common problem by methods and means that differ from one country to another, subsequently we see cases where some countries manage better or worse than others do. In the end, it is the UFMs who suffer the consequences.