CRC/GC/2005/6
page 23
83.
Whenever family reunification in the country of origin is not possible, irrespective of
whether this is due to legal obstacles to return or whether the best-interests-based balancing test
has decided against return, the obligations under article 9 and 10 of the Convention come into
effect and should govern the host country’s decisions on family reunification therein. In this
context, States parties are particularly reminded that “applications by a child or his or her parents
to enter or leave a State party for the purpose of family reunification shall be dealt with by
States parties in a positive, humane and expeditious manner” and “shall entail no adverse
consequences for the applicants and for the members of their family” (art. 10 (1)). Countries of
origin must respect “the right of the child and his or her parents to leave any country, including
their own, and to enter their own country” (art. 10 (2)).
(c)
Return to the country of origin
84.
Return to the country of origin is not an option if it would lead to a “reasonable risk”
that such return would result in the violation of fundamental human rights of the child, and
in particular, if the principle of non-refoulement applies. Return to the country of origin shall
in principle only be arranged if such return is in the best interests of the child. Such a
determination shall, inter alia, take into account:
− The safety, security and other conditions, including socio-economic conditions,
awaiting the child upon return, including through home study, where appropriate,
conducted by social network organizations;
− The availability of care arrangements for that particular child;
− The views of the child expressed in exercise of his or her right to do so under
article 12 and those of the caretakers;
− The child’s level of integration in the host country and the duration of absence from
the home country;
− The child’s right “to preserve his or her identity, including nationality, name and
family relations” (art. 8);
− The “desirability of continuity in a child’s upbringing and to the child’s ethnic,
religious, cultural and linguistic background” (art. 20).
85.
In the absence of the availability of care provided by parents or members of the extended
family, return to the country of origin should, in principle, not take place without advance secure
and concrete arrangements of care and custodial responsibilities upon return to the country of
origin.
86.
Exceptionally, a return to the home country may be arranged, after careful balancing of
the child’s best interests and other considerations, if the latter are rights-based and override best
interests of the child. Such may be the case in situations in which the child constitutes a serious
risk to the security of the State or to the society. Non-rights-based arguments such as those
relating to general migration control, cannot override best interests considerations.
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