224. In addition, when the applicant for refugee status is a child, the principles contained in
the Convention on the Rights of the Child must guide both the substantive and the procedural
aspects of the decision on the child’s request for refugee status.260 Thus, when children are the
applicants, they must enjoy specific procedural and probative guarantees to ensure that fair
decisions are taken when deciding their requests for refugee status, which requires the
establishment and implementation of proceedings that are appropriate and safe for children and
of an environment that creates trust at all stage of the asylum procedure. Also, and under this
same principle, if the main applicant is excluded from refugee status, the family members have
the right to have their own requests evaluated independently.261 However, such situations have
not been described in this case.
225. In addition, if an applicant for refugee status receives protection, other members of the
family, particularly the children, may receive the same treatment or benefit from that
recognition, based on the principle of family unification.262 In the proceeding to decide refugee
status, the applicant’s family members may eventually be heard, even if there are children
among them. In each case, it is for the authorities to evaluate the need to hear them based on
the contents of the application. In this case, although Juan Ricardo was only one year old, Frida
Edith and Juana Guadalupe could have been heard by the authorities in relation to the request
presented by their parents.
226. Regarding the second aspect, in relation to the proceeding on the expulsion of the
Pacheco Tineo family based on their situation as irregular aliens, the Court recalls the intrinsic
relationship that exists between the right to protection of the family and the rights of the child.
In this regard, the Court has found that the right to protection of the family, and to live in a
family, recognized in Article 17 of the Convention, means that the State is obliged not only to
establish and execute directly measures of protection for children, but also to promote, as
extensively as possible, the development and enhancement of the family unit.263 Consequently,
the separation of children from their family constitutes, under certain circumstances, a violation
of the said right,264 because even legal separations of the child from its family are only
admissible if they are duly justified in the best interests of the child, exceptional and, insofar as
possible, temporary.265
259
“Separated children” are children separated from both their parents or from their previous legal or customary
primary caregivers but not necessarily from other relatives. UNHCR. Child asylum under Articles 1(A)2 and 1(F) of the
1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, 22 September 2009, para. 6.
260
United Nations High Commissioner for Refugees. Guidelines on international protection No. 8. Child asylum
under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees,
HCR/GIP/09/08, 22 September 2009, para. 5. The Committee on the Rights of the Child has identified the following four
articles of the Convention on the Rights of the Child as general principles for its implementation: Article 2: the obligation
of States to respect and ensure the rights set forth in the Convention to each child within their jurisdiction without
discrimination of any kind; Article 3 (1): the best interests of the child as a primary consideration in all actions
concerning children; Article 6: the child’s inherent right to life and States parties’ obligation to ensure to the maximum
extent possible the survival and development of the child; and Article 12: the child’s right to express his/her views freely
regarding “all matters affecting the child”, and that those views be given due weight. See also: Committee on the Rights
of the Child, General Comment No. 5 (2003): General measures of implementation of the Convention on the Rights of
the Child (Articles 4, 42 and 44, para. 6), CRC/GC/2003/5, 3 October 200, para. 12. These principles guide both the
substantive and the procedural aspects of the determination of a request for refugee status for a child.
261
Cf. Expert opinion of Juan Carlos Murillo provided on March 29, 2013 (evidence file, folios 1423 and 1424)
262
See, in general, UNHCR, Procedural Standards for Refugee Status Determination under UNHCR’s mandate. See
also, UNHCR. Guidelines on international protection No. 8: Child asylum under Articles 1(A)2 and 1(F) of the 1951
Convention and/or 1967 Protocol relating to the Status of Refugees.
263
Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, para. 66,
and Case of Forneron and daughter v. Argentina, para. 116
264
Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, paras. 71
and 72, and Case of Forneron and daughter v. Argentina, para. 116.,
265
Cf. Juridical Status and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002, para. 77.
70
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