Ruling identity documents invalid

4 French child protection law is clear: in theory, it applies to all minors, whether or not they are of French nationality. [9] All minors who are at risk, in particular because they are unaccompanied, may therefore receive a placement from the ASE public services, under the authority of departmental councils. [10] However, such protection can only be granted if they are under the age of eighteen. In this regard, an individual’s foreign nationality should not pose any particular problems, as civil status documents issued abroad are valid, in the absence of evidence to the contrary, under French law. [11] Thus, when the date of birth of the party concerned indicates he is a minor, this must in principle be presumed. It should therefore be down to those who wish to contest the person’s status as a minor to prove that he is not a minor.

5 In practice, however, this is not the case for young foreigners applying for protection from the ASE in Paris. When these young people present their foreign identity documents, these are very often quickly ruled invalid, judged to be unreliable or fraudulent and to have been issued under questionable circumstances. [12] Despite the fact that official circulars urge local authorities not to “question the minor’s claim to the administrative documents he presents and whose authenticity is not contested,” [13] the reality is that the Parisian authorities, and the courts in turn, very often rule invalid the identity documents presented by these young people, particularly if they do not include an identifying photograph. [14] This rejection of documents is facilitated by the fact that the Bureau de la fraude documentaire (BFD) (Office for Document Fraud), which can be consulted by judges or departmental councils, [15] can state whether a document is genuine or fake without providing its opinion on the conditions in which the document was issued (the BFD can therefore never know if a document is a genuine document created from a fake). Dismissing the identity documents that are supposed to prove the date of birth in general law makes it possible to implement a system for assessing the specific age of young foreigners requesting protection. [16] Considerations relating to biological age, [17] behavior, or the physical appearance of the foreigner presenting himself as a minor are then often taken into consideration, and this is the case at all stages of the process.

Creating public services for sorting

6 The process for young foreigners who come to France and want to be recognized as minors is long and interspersed by stages in which sometimes the public services, [18] and sometimes a judge, will attempt to determine the validity of their claim. [19] Specific assessment bodies have been created in response to the growing number of young people seeking protection from the ASE. While it is of course difficult to provide an exact figure for the number of people concerned, there is no doubt that it has increased over the last fifteen years or so. [20] The first responsibility of these bodies in relation to new arrivals is to determine whether or not they are unaccompanied minors who should be taken into care. Despite differences in the assessment criteria from one country to another, [21] in France and in Europe more generally, these bodies are essentially organized at a local level, namely the departmental or municipal level. In comparison with other countries, France has a highly institutionalized and relatively homogeneous system for receiving unaccompanied foreign minors, as it is connected to its child protection policy. In other countries, such as Italy (a major arrival point for migrants in Europe), there is significant infranational variability and there has been fierce debate about the appropriate institutional and political response to migrant populations. [22] The situation in France may change, as there are current plans to transfer the assessment of young foreigners to the state, due to its authority over migration policy. However, for now, the responsibility remains at the departmental level. [23]

7 In Paris, a dedicated body was created in 2011 under the name PAOMIE (Permanence d’accueil et d’orientation des mineurs isolés étrangers) (Center for the Reception and Orientation of Unaccompanied Foreign Minors). This was formed through a government contract with the organization France Terre d’Asile to provide reception facilities for young people, but also to assess their age and whether or not they were unaccompanied. Initially, the PAOMIE was responsible for deciding whether a young person was a minor and therefore eligible for an ASE placement. However, the rules changed in 2015, with the Direction de l’action sociale de l’enfance et de la santé (DASES) (Directorate of Social Action, Children, and Health) in Paris becoming responsible for taking this decision based on a recommendation from the PAOMIE, without meeting the young person concerned. The assessment operator has now changed, with the government contract moving to the French Red Cross in January 2016, but the task of assessment has remained and is now made explicit in the new name of the service, with the PAOMIE becoming the DEMIE (Département d’évaluation des mineurs isolés étrangers) (Unaccompanied Foreign Minors Assessment Service). As our study covers the years 2013 to 2015, we will focus on the assessment activities of what was then the PAOMIE, but the DEMIE plays the same role. Pending a potential placement, this service is able to refer young people to a temporary reception facility where they can be placed in short-term accommodation, usually in a hotel. This falls under the work of the SEMNA (Secteur éducatif mineur non accompagné) (Education Service for Unaccompanied Foreign Minors). Temporary accommodation is supposed to be provided to all, but in practice this norm is variably applied since it does not cover people who are “clearly” adults. [24] More generally, the assessment process involves rigorous sorting, with the DASES apparently rejecting 75% of the applications it receives. [25] In such cases, the decision can be contested in court with a view to the placement being ordered by a judge. Although this study does not consider the legal side of assessment, it is necessary to take a look at the barriers that may be put in place at this stage.

Judicialization of the procedure

8 Unusually, the question of who the competent judge is to decide on the care of an unaccompanied foreign minor has not been formally settled. Over the years, several paths have been explored, thanks in particular to the work of activist groups. However, despite the lack of clarity in the legal texts, the possible routes of appeal for persons claiming to be minors are gradually being closed off.

9 When a young person is passed over by the public assessment services that have denied him minor status, an appeal before an administrative judge appears to be the most obvious way to challenge this decision and apply for care from the ASE. However, the Council of State (Conseil d’État) has ruled that it is impossible for the administrative court to decide on such an appeal, on the grounds that a person claiming to be a minor does not have the legal capacity to take legal action. [26] This is a clearly paradoxical solution that could soon be challenged. [27] Due to this initial barrier, attempts have been made to take appeals to the family court judge who, as a guardianship judge for minors, might have had the authority to appoint a person to represent the child and exercise his rights. However, this judge is not legally competent to order an emergency placement with the child welfare services. This leaves the route of an appeal with a children’s judge (juge des enfants, JE). But the question of competence in this area is again not straightforward.

10 While the public prosecutor’s office can, in certain cases, issue orders for temporary emergency placements for a very short period of time, only JEs, since they are responsible for protecting children at risk, can order long-term placements for minors. Despite this, however, some judges have decided that the cases of unaccompanied foreign minors do not fall under their remit, arguing that their role is to mitigate the inadequate exercise of parental authority rather than its absence. [28] This resistance has however been dismissed by the rulings of courts of first instance and by appeal decisions, [29] and the JE is now the main judge dealing with the cases of unaccompanied minors (UAM). [30]

11 This leaves the whole other issue of determining minority, the sine qua non condition for the competence of children’s judges. As we will see, it is generally on this point that ASE placement is rejected. While it is theoretically possible for a foreign citizen with recognized minor status not to be provided with a placement—for example, because investigations reveal that he does have a legal representative or trusted person in the country who can care for him—the reality is that “sorting” is primarily between “real” and “fake” minors. The decision of the children’s judge can subsequently be appealed: not only by the young person who wants to challenge a rejection, but also by the departmental council who wants the placement decision to be annulled. Here, the strain on the care system becomes clear: the ASE services may decide they are so overloaded that they cannot execute placement decisions, or even challenge them, on the grounds that they are unable to fulfil their reception role under acceptable conditions.

12 Determining the age of young foreigners claiming ASE protection is therefore an integral aspect of their care, since it is what makes it possible to determine their inclusion or exclusion from the care system. However, it is extremely difficult to observe the reality of these practices solely by examining legal decisions in the public domain. For while there are many legal challenges involving UAMs in the courts of first and second instance, the decisions are of limited theoretical interest in themselves. [31] They demonstrate a very wide margin of appreciation on the part of the courts and often provide incomplete justification. It is therefore often difficult to identify what led to the decision, particularly since the materials submitted to the judge cannot be studied. This is compounded by the fact that, since the persons concerned are particularly vulnerable and the situations are often urgent, there are very few legal proceedings—which are time-consuming and of uncertain outcome—resulting in decisions by the upper courts (Court of Cassation and Council of State); decisions that apply to all legal jurisdictions and are the only ones to be published widely. Studying court decisions alone would therefore tell us almost nothing about the reality of the experiences of unaccompanied young foreigners.

13 Examining only the applicable legal texts would be no more enlightening, since the specific features that define the experiences of these young people, when they are taken into consideration, are generally done so only through measures with limited normative value: official circulars, action plans, or decisions from the defender of rights. This is a specific characteristic of the law on foreign nationals, described by Danièle Lochak many years ago as an “infra-law” phenomenon. [32]

The multitude of age indicators

19 Various age indicators are used for the purposes of assessment. Our analyses reveal that the young person’s physical appearance and behavior are the most important elements, but that significant weight is also placed on assessing the consistency of their stories.

The intersectional analysis of age indicators

30 The different classification criteria produced by the assessment of young foreigners are characterized by porous relations with more or less implicit age, gender, class, and race norms. [53]

31 The majority of those assessed are boys (this was the case for 96% of the young people in our corpus [54]) and the traits considered to be signs of their adulthood generally relate to the gendered body, namely the male body (we have already noted the importance of hair growth and muscles). The consistency of the story, or the evaluation of the statement, is also considered from the perspective of the gender of the young people assessed: as highlighted above, experience of sexual abuse is thus very little explored when it comes to boys. [55] Class also plays a role, insofar as assessment of the consistency of the story is often based on living conditions in the country of origin, and on the resources (social, but also economic, capital) to which a young person has access during their migration journey. Thus, in relation to Yassa, a sixteen-year-old originally from Mali, the assessor writes: “The young man does not have the demeanor of an illiterate adolescent.” Other examples are found in the reports for a second young Malian boy, stating that the detail in which he describes the timeline of his journey contradicts his claim to have attended only three years of school, [56] and for a third, whose lack of education is said to be inconsistent with the fact that he can speak “a little” French. The assessment report for Adbou, a sixteen-year-old Pakistani boy, highlights that it is hard to believe he “comes from a poor family [as] he appears to have traveled with significant sums of money.” Harsh comments are sometimes made about the intellectual ability of the young people being assessed. In relation to Abdel, a seventeen-year-old from Guinea, the assessment first notes that “he claims to be intelligent, but does not remember the year he dropped out of school,” and a little later on that “he seems to be accepted into adult circles and considerations would therefore appear compatible with adulthood.”

32 These different norms of perception of the bodies and stories of the young people are typically connected to a perception of age, and in particular of what is “childish,” “adolescent,” or “adult” speech, and what is expected in terms of consistency and detail. These norms used by the assessors are interlinked and can only be considered in light of the intersectionality of power relations. [57] This is because, when an assessor judges a story to be “too consistent” for a particular young person, he does so in relation to his age (only an adult can produce such a consistent story) but also his nationality or “culture of origin.” For example, the assessors claim to be aware that a particular migrant community teaches newcomers to present a pre-prepared story, and sometimes they go as far as arguing for the inconsistency of a story based on the young person’s ethnic origin. For instance, this is the case for Moussa, a fifteen-year-old from Mali, whose Soninke origin, according to the assessor, explained his difficulty setting out a consistent timeline. The assessment of Imba, a Guinean boy aged fifteen and a half, provides an even more striking example: “The reasons and circumstances of the user’s departure are hard to believe. It is still very common for users of Guinean origin to claim mistreatment by an uncle, their father’s second wife, or an aunt as their reason for leaving. Stories of the ‘heaven-sent’ figure, always a friend of their late father, who pays for the entire journey only to then leave the child on the streets of a foreign country are hard to believe.” Ethnic origin thus plays an active role in evaluating the value of the statement.

33 The “expectation” of what a childish statement should be is also constructed in relation to the idea of vulnerability: because the young person has requested help, this request must be consistent with their general demeanor, that of a child at risk. Thus, the person assessing Madi, a sixteen-year-old from Mali who claimed to have spent twenty days on the streets in Rome, considered his story to be inconsistent, since “it is hard to believe that the user could feed himself through begging for nearly a month and remain on the streets without asking for help.” This makes the paradoxical nature of the requirements clear, since, conversely, the stories in which the young people claim to have been helped by adults during their migration journey are often seen as hard to believe. The assessors often refuse to believe in the “heaven-sent figure,” though without ever asking questions about the nature of the relations between the young person and these adults. We found several files in which the young person is described as not displaying a sufficient level of emotion when recounting tragic events such as the death of a close friend or family member, or crossing the Mediterranean. Beyond the issue of the influence of repetition on the statement, as mentioned above, these comments highlight the way in which the assessment is based on the image of what an “unaccompanied, vulnerable migrant child” should be like.

34 The files also include traces of this requirement for vulnerability continuing after a decision on placement has been made. In two cases in question, the ASE spontaneously terminated the support it had itself decided to provide due to the young person’s rebellious and demanding attitude. In the first case, the assigned children’s judge ultimately ruled that the applicant was an adult, based on the fraudulent nature of the documents presented and on bone tests, and denounced the fact that presenting a fake document had not prevented him from “leading a movement to improve the quality of care for unaccompanied foreign minors at the risk of undermining the credibility of his fellows.” In the second case, the young person was described as “settling” for a hunger strike and the same judge conversely paid great attention to the young person’s reasons for rebelling “against requirements he does not understand.” Despite the suspect nature of his birth certificate, the judge ultimately ruled that a placement should be provided, stating that “even if the young person’s identity and the truth of his story are not entirely clear, there would appear to be a great danger in leaving him to his own devices, given how isolated he is, even from his loved ones, and directionless.” This clearly demonstrates the tension experienced by the same system actor between the repressive policy of combating “fraud” and a policy of compassion toward young people at risk.

35 Failing to consider the situation of these young people from an intersectional perspective would therefore obscure the numerous mechanisms that construct their alterity in relation to adult society, whose work consists here of classifying those who claim to belong to it. Yet one implicit feature of this classification procedure is that it does not settle for determining a group of “real” and a group of “fake” minors: in reality, those ruled to be adults fall under the category of undocumented foreigners.

The ambiguous position of social workers

38 When asked about their perception of their position in the child welfare service, the PAOMIE assessors we met expressed unease regarding their role, which they described as “more administrative than social.” [60] Yet the “administrative” aspect of their work consists of selecting the young people who are presented to them. We can thus take it that, unwillingly, the role of assessors is more to police foreigners than to protect children. This is also what justifies their presence in the system even though they are not social workers: their training focuses on international affairs, enabling them to acquire a certain knowledge of the geopolitical issues related to the countries of departure, as well as the administrative, educational, and family systems in these countries. The profile of these assessors is in fact atypical for employees in the sphere of social work: they are neither social workers nor educators, but have training in history, psychology, and policy management, and experience in international and humanitarian cooperation (with master’s-level qualifications). At the time of our study, the profile and training of these assessors was not regulated nationally but determined by the expectations of local actors. [61] A recent study report on the reception of unaccompanied minors, conducted across several departments, also showed significant differences in recruitment from one department to the next. [62] The assessors that we met explained that their respective training pathways gave them a “different [perspective] on these minors.” They presented themselves as experts on the experiences of these minors, while regretting the need for a “balancing act” between their social role (providing these young people with immediate help, since minors must be placed in accommodation within five days) and their administrative role, which requires them to “sort” these minors—although they claimed that, at their level, they did not have “quotas” (a maximum number of young people recognized as minors) to fill. These employees presented their knowledge as helping to prevent them from ruling a young person’s statement invalid (“you can’t assume they’re talking rubbish when they refer to ‘their uncle’ to mean someone in the village” [63]). Information linked to the knowledge of assessors in relation to the stories of the young people assessed can in fact sometimes be found in the reports. [64] There is a striking comparison between this activity involving knowledge of the country of origin and the role given to staff at the Office français de protection des réfugiés et apatrides (OFPRA) (French Office for the Protection of Refugees and Stateless Persons), whose knowledge of regions of origin is meant to help them assess the credibility of asylum applications. [65] The parallels between these two procedures do not stop there. The assessors also note that the quality of their working conditions is dependent on migration “pressures.” They can be classed under what Didier Fassin and Carolina Kobelinsky describe as a “moral economy of asylum” in their work on the judges of the Cour nationale du droit d’asile (CNDA) (National Court of Asylum). [66] According to Fassin and Kobelinsky, this moral economy is characterized by the feeling that their work is particularly just, in an environment characterized by the double pressures of migration and politics (leading the public authorities to display a desire to control both legal and illegal migration), because it is based on selectivity. Like the judges at the CNDA, the assessors of minor status explained that their role is not to provide shelter to “all individuals,” but to identify those who really need protection: in other words, quality over quantity. As Gabriella Petti notes in an Italian context, the social actors working with these young people have a moral function, marking out those who “deserve protection from those who do not deserve it.” [67]

39 In relation to the social aspects of the work of assessment, we asked assessors about their attitude toward the people whom they rule to be adults but who are still very young and vulnerable. We wanted to shed light on the possible difficulty of working in the social work sphere while excluding a significant number of potential users from the system. Their position was clearly an uncomfortable one: initially, assessors freely expressed the need to protect those who were “really minors,” but when asked about the difficulty of “passing over” young adults in need of protection, they suggested, without great conviction, that it might be dangerous for the minors to be mixed up with adults in reception facilities. [68] This discourse is therefore a way to give the administrative role a “social” foundation: refusing to include “fake minors” as a way to better protect real minors. The difficulties of migration are also minimized by the fact that some see it as having a “rite of passage” aspect: one assessor thus claimed that “in some cultures, heading off on an adventure is part of becoming a man,” thus implying that, once arrived, it would be inconsistent to claim minor status—and therefore not so bad for them to reject such a claim.

40 The insights provided by the words of the assessors directly echo the professionalization of migrant support organizations and their growing dependence on state systems, such as the work of organizations in administrative detention centers, studied by Nicolas Fischer. [69] In relation to this, a European comparison shows how, in other countries, organizations have maintained a greater degree of independence from the state and its bodies, while providing emergency reception facilities for migrants. [70] Meanwhile, it appears that the assessors in Paris have to reconcile the values promoted by their employer, a French humanitarian organization, with the public authority they report to, which is driven by a more strictly accounting logic. They thus embody the “humanitarian reason” described by Didier Fassin, which seeks to support policies for governing populations rather than calling for a change in the social structures. [71] The assessors are thus clearly distinguished from activists who are involved in the reception of unaccompanied young foreigners and in helping them through legal proceedings.

The criticisms of activists

41 The ambiguity of the classification—minors requiring protection or undocumented foreigners—was also expressed by the activists that we met. In addition to combing through the files of a voluntary collective for supporting young migrants, we also conducted interviews with activists—both employees and volunteers—involved in an advisory service. The collective initially planned to primarily handle the cases of young adults, but as the circumstances of care for UAMs in Paris overturned these plans, the collective became a major actor in supporting their care by the Paris child protection system, receiving an ever-increasing number of young people whose claims had been rejected by the PAOMIE. The position of this collective is thus interesting in a number of ways, as it focuses on a tension between state actors (including voluntary actors who carry out the sorting of foreigners delegated to them by departments) and non-state voluntary actors, activists who are characterized by advocacy on the rights of foreign persons, on public immigration policy, and on child protection. The group studied initially focused on the rights of foreign persons and as such essentially consisted of advisors from this area of activism. It was only through force of circumstance that all those involved in the collective had to specialize in child protection law. This gap in skills and positioning was also expressed in our interviews. Although it was clearly stated that “what binds them together” is a compassionate position toward the young people, whom they refrain from judging or viewing with suspicion, one of the volunteers did state that: “we don’t know how to talk to them.” She also suggested that their public indifference to the cases of young people who are presumed to be minors is not just a political position but also results from a decreased curiosity over time, since the number of cases handled impedes close relationships. The conditions under which migrants are received (working late, overloaded, offices in unsuitable premises) and the lack of interpreters, which makes communication difficult if not impossible, were both mentioned. The individuals interviewed appeared to be aware that, under these conditions, they ultimately provided only legal and administrative support, and that a genuine relationship of trust could only be developed with young people who came back to them on several occasions. As such, one of our interviewees noted that “if sexual abuse [which we had mentioned earlier in the interview], had taken place, we wouldn’t see it.” This position cruelly recalls that of the assessors: the voluntary activists who initially planned to provide an advisory service for foreign citizens who had recently reached the age of majority find themselves interacting with minors, some of whom are very young, just as the professionals theoretically attached to a child welfare service actually work on assessing migration journeys. This provides a reminder, were one required, that the processes of politicization within collectives develop in context, through interaction with other agents in the field, namely assessors and the public services they embody. [72] Here, an activist group usually focused on advocacy and legal support has found itself in the situation of providing social support, which may alter the ideological balance within the group (for example, by creating tension between the most radical positions and by giving credibility to “pragmatic” stances focusing on the cases of young people that have a chance of being recognized as minors [73]).

42 During one of our interviews, an activist stated the position, approved by the rest of the group, that “saying ‘us’ is the wrong approach.” This highlights the diversity of volunteers participating in advisory services, particularly in terms of their position on the issue of migration. It thus affirms that some volunteers may hold a position that leans toward believing they must not “let themselves be used” and that adults should not be given ASE protection. Some of the files studied do show that the compassionate position adopted does not appear to prevent the advisory staff, for example, from assessing the authenticity of an identity document and ruling out an appeal before the JE if they consider it suspicious. But this approach was also presented by one of the volunteers—an educator—as “informed support”: it is because of the risks incurred (particularly legal proceedings for false claims [74]) that they recommend against the approach, which he saw as “acting considerately toward [the young person].” Conversely, another interviewee said in relation to the young people he saw that he “didn’t care about [their] story” since he “played a role” in the “game” of the system: the role of defender. He did however concede that it is “easier if you come from an organization that supports freedom of movement” (which was the case for him). These words express awareness of the true alternative that is expressed in the classification of young foreigners: minors requiring protection or undocumented foreigners. Being in favor of freedom of movement is thus clearly an attitude that facilitates a certain position: once you believe that “those who are here have the right to be here,” then it does not matter whether or not they are here under a “false” status. The only question that is relevant is the specific situation of the person received: whether they are vulnerable or in need of support or protection. Nevertheless, regardless of the individual political position taken by these activists, their experience of public services and the cases of young people have left them with a critical view of the system for receiving unaccompanied young foreigners, and they have a shared opinion on the sorting of young foreigners and the irrelevance of the age criteria that make them eligible for protection.

43 The driving force behind the assessment of unaccompanied foreign minors is thus clear: because they are situated on the shifting frontier between two categories of migrants—migrants who are acceptable, at least temporarily, because they are minors, and migrants who are unwelcome, or even fraudulent—the situation of unaccompanied young foreigners profoundly questions the very idea of sorting among people in a vulnerable situation. Rejecting claims from young people over the age of eighteen by categorizing them as undocumented adults is a way to avoid questions about where institutional responsibility for their care lies. This system thus contributes to a paradoxical policy that pushes to the forefront both France’s duty of solidarity and humanitarianism in relation to “refugees” and the need to restrict migration flows, which is justified by the impossibility of integrating the new arrivals economically and socially. The adult/minor and foreign/French oppositions are therefore clearly inadequate to express the complexity of the situation for unaccompanied young foreigners, who are caught in the middle between a child welfare system that is increasingly reluctant to care for foreign minors, and a highly repressive migration policy that seeks to flush out those individuals with no “humanitarian need” to leave their country of origin. Again, the existence of a limit situation—here, at the frontiers of child protection and migration policies applied to adult migrants—questions the very relevance of categories that structure our legal and institutional system [75]: namely, the distinction between adults and minors. [76] The officials responsible for conducting categorization are very much aware of this difficulty and, although their activity is situated at the “end of the chain” and they are unable to influence the reception places available or the public policies implemented in relation to unaccompanied young foreigners, they have a non-negligible “discretionary power,” like the “street-level bureaucrats” described by Michael Lipsky. [77] The absence of presumption of minor status, or a protective rather than repressive migration policy, seems to push officials to draw on more informal criteria to distinguish between individuals, particularly as they are encouraged to do so by the public authorities, particularly at the local level (the department), which is subjected to the greatest budgetary pressure.

44 More broadly, it is clear that the representations and categories linked to different power relations (including gender, age, and race) constitute a basis for the response from the public services to vulnerable situations in which the age of applicants might be considered irrelevant. While the institutional handling of these young people seems, on the face of it, to be based on administrative criteria linked to their civil status, government authorities, and those to whom they delegate the activity of sorting and reducing the costs of immigration, base their assessment on bodies and stories. In summary, the situation of unaccompanied young foreigners reminds us that when it comes to the treatment of foreigners, the biopower described by Michel Foucault has changed very little and appears to still be in effect: here, it is a case of managing the flow of people who are politically constructed as “undesirable” [78] by reinforcing power relations at the local level (for example, by assigning young people to their gendered or racial identity) and the global level (by limiting access to support in the countries of the Global North for vulnerable populations from the Global South). The scale chosen for this study thus enables us to understand how actions seen by certain actors as forms of expertise (that of the assessors) are constrained by the use of essentializing categories and representations, and beyond this by a political and ideological context of the rejection of migrant populations.