The New European Pact on Migration and Asylum and the Rights of Child Asylum Seekers

Between Migration Management Efficiency and Enhanced Child Protection 

Migrant Childhood – EU Pact on Migration and Asylum – Rights of the Child – Best Interests of the Child – Asylum.

This paper examines the impact of the New EU Pact on Migration and Asylum on the rights of child asylum seekers, identifying the tensions between the logic of migration management efficiency underlying the reform and the international obligations of enhanced child protection derived from the principle of the best interests of the child. An examination of the main legal instruments adopted under the Pact shows how the expansion of border procedures, the possibility of detention in the early stages and the application of automatic responsibility criteria may undermine the effective protection of children. The study concludes that the new regulatory framework consolidates a model of migration governance focused on control, whose legal coherence will depend on its application in conformity with the standards of the European Convention on Human Rights and the Convention on the Rights of the Child.

Lucía Padilla Espinosa

A. Introduction: The New European Pact on Migration and Asylum and Its Relevance for Migrant Children

The various migration crises that have affected the European Union over the last decade have revealed its inability to respond effectively to mass arrivals of people from third countries. The 2015 crisis, marked by the arrival of more than one million people – mostly Syrian refugees – exposed the structural shortcomings of the Common European Asylum System (CEAS) and the lack of effective solidarity mechanisms between Member States. More recent events, such as the armed conflict in Ukraine following Russian aggression and the tensions with Belarus resulting from the instrumentalisation of migrants at the EU’s external borders, have further confirmed the fragility of the system and the need for comprehensive reform.

In response, the European Commission presented, on 23 September 2020, the New Pact on Migration and Asylum, conceived as a comprehensive and integrated framework for migration and asylum governance, aimed at restoring mutual trust among Member States through a balance between responsibility and solidarity[1]. This approach, defined as “flexible solidarity”, seeks to involve all Member States in the management of migration flows, whether through direct reception, financial contributions or cooperation in return operations[2]. However, the New Pact functions more as a corrective mechanism for a structural deficiency than as an effort to address its root causes, thereby maintaining the logic of containment and control that has long characterised European migration policy. 

After three years of complex negotiations, the Council of the European Union and the European Parliament reached a political agreement in December 2023, culminating in the formal adoption of the legislative package on 14 May 2024. This set of instruments, consisting of nine Regulations and one Directive, comprehensively reforms the Union’s legal framework on asylum and migration[3]. One of the most significant innovations of this reform is the widespread use of the Regulation as a legislative instrument, replacing the traditional Directive. This choice aims to reduce divergences between national systems and ensure uniform implementation, but it also entails a higher degree of rigidity and regulatory centralisation in the field of migration[4]. At the same time, the reform proclaims a commitment to administrative coherence and efficiency, which nevertheless raises concerns regarding its compatibility with international human rights obligations. From a broader asylum-law perspective, commentators have stressed that the Pact’s tightening of border controls and the generalisation of accelerated procedures, only partially offset by a modest and largely optional resettlement framework, already put access to international protection and procedural guarantees at risk[5].

In this context, migrant children – particularly those who are unaccompanied or separated – occupy an especially vulnerable position. Although the New Pact repeatedly affirms the duty to respect the best interests of the child and to consider their specific needs^[6], the provisions giving effect to this principle are fragmented and at times ambiguous. The instruments structuring the new system – including Regulation 2024/1356 on the screening procedure at borders, Regulation 2024/1348 on asylum procedures, Regulation 2024/1351 on asylum and migration management and Regulation 2024/1359 on crisis and force majeure situations – contain formal references to the protection of minors, yet their practical implementation raises clear tensions with the standards established by the Convention on the Rights of the Child (CRC), the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights (ECHR).

The significance of analysing the New Pact from the perspective of migrant children lies precisely in the fact that it represents the first attempt by the European Union to establish a comprehensive system for asylum and migration governance, covering all phases of the process – from arrival to return – under a unified legal framework. This integrated approach gives coherence to the system but also heightens the risks that child protection may become subordinate to administrative and security imperatives. Assessing the coherence of the New Pact with international obligations in the field of children’s rights is therefore not merely a technical exercise, but a legal and ethical imperative that goes to the very heart of the European system of protection.

This paper examines, from this perspective, the main provisions of the New Pact that affect the rights of child asylum seekers, analysing the tensions between the objectives of migration management efficiency and the obligations arising from the principle of the best interests of the child. This analysis seeks to contribute to an essential debate on the protection model that the European Union is building: whether one that recognises migrant children and adolescents as full rights-holders, or one that conceives of them primarily as objects of administrative management within the common border-control policy. 

B. Child Asylum Seekers in the New European Regulatory Framework

The adoption of the legislative instruments that make up the New European Pact on Migration and Asylum constitutes a substantive reform of the Common European Asylum System, guided by the pursuit of efficiency, shared responsibility among Member States, and the integrated management of migratory flows. Although its overall formulation invokes the need to ensure respect for fundamental rights and the principle of the best interests of the child[7], a closer examination of its normative architecture reveals significant tensions with the heightened standards of protection required by the European Court of Human Rights (ECtHR), particularly in relation to unaccompanied or separated children and adolescents. 

The first area of concern arises from Regulation 2024/1356, which introduces the screening procedure at the Union’s external borders. This instrument establishes the obligation to carry out a preliminary vulnerability assessment to identify persons who may be victims of torture or inhuman or degrading treatment, stateless persons or those who may have special reception or procedural needs, in accordance with Directive 2024/1346 and Regulation 2024/1348[8]. In principle, screening is conceived as a mechanism for early identification of specific needs. However, its uniform and accelerated implementation in border contexts, often devoid of adequate safeguards, seriously undermines the possibility of conducting an individualised and thorough assessment of the child’s best interests.

The screening procedure does not guarantee the effective participation of the person concerned, nor does it provide for specialised legal assistance or the involvement of professionals trained in the detection of vulnerability from a child-, gender-, diversity- or human-rights-based-perspective. Moreover, the notion of “making available” provided for in the Regulation, which may last up to seven days, in practice amounts to a form of deprivation of liberty, without a clear differentiation between adults and minors^[9]. This is particularly problematic in the case of unaccompanied or separated children, whose legal status and protection needs require heightened attention from the very moment of their arrival on European territory. Recent ECtHR case law on age-assessment procedures for unaccompanied children has also stressed that the use of unreliable medical techniques and the failure to apply the benefit of the doubt are incompatible with States’ positive obligations, particularly where indicators of trafficking are present[10]. 

The widespread use of detention at the initial stages of the procedure further exacerbates these concerns. Although Regulation 2024/1351 on asylum and migration management and Regulation 2024/1359 on crisis and force majeure situations refer to the principle of necessity and proportionality in detention^[11], the overall regulatory framework of the New Pact reinforces an essentially security-driven and deterrence-oriented approach. In practice, the systematic detention of applicants for international protection, including children, in facilities located at the external borders or in transit zones – whose legal nature remains ambiguous – is thereby legitimised[12]. This approach is difficult to reconcile with the standard established by the Strasbourg Court in cases such as A.B. v. France or W.S. v. Greece, where it was held that the detention of unaccompanied or separated children is permissible only in absolutely exceptional circumstances, for the shortest possible period, and only if it genuinely serves their best interests^[13].

Regulation 2024/1348, which establishes a common procedure for international protection, extends the possibility of applying accelerated procedures even to applications submitted by minors in certain circumstances, for instance when they are deemed a threat to national security, originate from countries with a recognition rate below 20%, or come from States considered to be safe[14]. Similarly, Regulation 2024/1359, concerning situations of crisis or instrumentalisation, authorises the examination of all applications lodged in such contexts through the border procedure, except for those submitted by children under twelve years of age[15]. Consequently, applications from adolescents between twelve and eighteen years old may be processed under the border or accelerated procedure, which offers fewer procedural safeguards, thereby raising serious doubts as to the compliance of this design with international obligations of enhanced protection. 

Although the texts provide for certain exceptions, their broad and open-ended formulation, together with the use of indeterminate legal concepts, allows for an extensive interpretation that undermines the standard of differential treatment required by the best interests of the child. One of the most serious risks arising from this lack of thoroughness and rigour in the assessment is the potential violation of the principle of non-refoulement. The ECtHR has consistently held that any measure affecting migrant children must be preceded by a substantive and reasoned assessment of their rights and specific needs[16], which is hardly compatible with expeditious procedures, short time limits and detention-like settings that restrict effective access to legal counselling, representation and adequate remedies. 

Another critical aspect of the New Pact concerns the determination of the Member State responsible for examining an application for international protection submitted by a minor. Regulation 2024/1351, on asylum and migration management, replaces the former Dublin Regulation and introduces a partially reformed regime in its Article 25, which specifically addresses unaccompanied children. Although it preserves the previous criteria for family reunification and formally strengthens the best interests of the child as a binding principle – by providing that reunification may be refused only where it is demonstrated to be contrary to the child’s interests – the absence of explicit references to separated children generates legal uncertainty[17]. Moreover, the residual application of the “country of first entry” criterion continues to impose a disproportionate burden on border Member States, while the new framework fails to ensure effective remedies with automatic suspensive effect against transfer decisions[18]. In addition, the Regulation does not expressly incorporate the doctrine of the Court of Justice of the European Union (CJEU), which calls for avoiding unnecessary transfers when such measures may undermine the stability and well-being of the child[19]. 

Taken together, these factors show that, despite certain technical improvements, the reform continues to prioritise procedural efficiency over the enhanced protection of migrant children[20]. Recent Belgian practice illustrates how this tension may materialise at domestic level: in a case concerning the removal of a third-country parent of Belgian children, the Council for Alien Law Litigation criticised the administration for opposing the “family and private interests” of the children to a so-called superior interest of the State, and for failing to carry out a genuine best-interests assessment before refusing residence[21].

The set of instruments adopted under the New Pact on Migration and Asylum thus reflects a paradigm shift in European migration governance. Despite the formal invocation of the principle of the best interests of the child, its practical implementation is often diluted in generic formulations and subordinated to the imperatives of border control and inter-State cooperation. This stands in contrast with the consistent case law of the ECtHR, which requires individualised assessments of the best interests of the child in any decision affecting unaccompanied or separated children and adolescents within European territory[22]. 

In short, the architecture of the New Pact consolidates a model of migration governance that is structurally incompatible with the heightened standards of child protection established by the ECHR. It remains to be seen to what extent the Member States, at the stage of implementation, will be able to ensure that this reform does not result in a regression in the effective protection of the rights of the most vulnerable migrant children. 

C. Final Reflections

The analysis of the New European Pact on Migration and Asylum confirms the consolidation of a management logic grounded in efficiency and control, which progressively shifts the focus of protection towards a policy of border containment. This shift has particularly significant implications for child asylum seekers, whose protection, under the standards of the European Convention on Human Rights and the Convention on the Rights of the Child, requires reinforced and individualised safeguards. 

Even though the New Pact proclaims its commitment to the principle of the best interests of the child, its practical implementation remains limited. The introduction of the screening procedure, the expansion of border and accelerated procedures, and the normalisation of deprivation of liberty in the early stages together create a system in which attention to the specific needs of children gives way to the imperatives of speed and control. These mechanisms, designed to standardise migration management, in practice create a structurally high-risk environment for the rights of migrant children and adolescents, particularly those who are unaccompanied or separated. 

The revision of the system for determining the responsible Member State, introduced by Regulation 2024/1351, further reinforces this orientation. The possibility of applying automatic criteria, such as that of the “country of first entry”, even in cases involving minors, represents a step backwards compared with the previous framework and weakens the legal weight of the best interests of the child as a determinative criterion. Despite the formal references to this principle, its role is reduced to a subsidiary interpretative element, subordinated to the logic of responsibility-sharing and inter-administrative coordination among Member States. In practice, this configuration may result in transfers that prolong the vulnerability and instability of minors, contrary to the case law of the CJEU, which requires avoiding unnecessary transfers when they could affect the child’s well-being. 

Furthermore, the extension of border procedures to adolescents between twelve and eighteen years of age, together with the possibility of detention in transit zones or fast-track processing facilities, raises serious doubts as to their compatibility with Article 3 of the ECHR and with the principle of priority and differential treatment imposed by international human rights law. The material conditions under which these procedures are conducted, combined with the absence of immediate guardianship and the lack of effective access to specialised legal assistance, make it difficult for migrant children to effectively exercise their procedural and substantive rights. 

Finally, this control-oriented logic has been further reinforced by the political agreement reached within the Council in December 2025 on the proposal for a new Return Regulation, as well as on the proposal for a Regulation on the safe third country concept and the proposal for a Regulation establishing a common EU list of safe countries of origin and the agreement on the annual solidarity pool[23]. According to the Council’s position, these instruments are intended to lead to swifter, simpler and more effective asylum and return procedures throughout the Union, through accelerated inadmissibility assessments based on the safe third country concept and the fast-track examination of applications submitted by nationals of countries designated as safe countries of origin. 

More specifically, the Return Regulation significantly reinforces enforcement mechanisms by imposing binding obligations on returnees, extending both the grounds and the maximum duration of detention, reinforcing the mutual recognition of return decisions between Member States and introducing a European Return Order to be inserted in the Schengen Information System[24]. It also expressly enables the establishment of “return hubs” in third countries through agreements or arrangements with non-EU States. In practical terms, this new regulatory framework gives shape to a deeply punitive and externalised return regime, shifting the axis of EU migration policy from protection towards coercion, with the attendant risk of pushing a growing number of persons into situations of extreme vulnerability and prolonged legal limbo.

From an axiological perspective, such an orientation is difficult to reconcile with the Union’s founding values and with a conception of migration governance rooted in human dignity and fundamental rights[25]. At the current stage of the legislative process, the European Parliament is called upon to exercise decisive scrutiny over this trajectory, to prevent the consolidation of a model of migration management anchored in fear, exclusion and a sanction-driven logic, to the detriment of an approach centred on effective protection. Although this legislative package remains subject to interinstitutional negotiations, it already represents a decisive step towards the consolidation of an externalised and enforcement-driven model of EU migration governance, with potentially serious implications for legal certainty, the principle of non-refoulement and for the effective protection of asylum-seeking children.

In short, the new legislative instruments introduce a legal framework that is coherent from a management perspective, yet insufficient from a protection standpoint. Policy coherence cannot substitute for consistency with fundamental principles. As long as children continue to be treated as objects of control rather than as rights-holders, the principle of the best interests of the child will remain a rhetorical declaration rather than a binding legal obligation. The real challenge for Member States will not lie in formally implementing the provisions of the Pact, but in applying them in a manner that ensures individualised assessments, effective protection and full access to international protection procedures. Only in this way will the new European asylum system cease to place children at the margins of exception and instead recognise them as the core of the system of international protection.

D. Suggested Reading

Jurisprudence: 

• ECtHR, 12 October 2006, Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, App. No. 13178/03.
• ECtHR, 5 July 2011, Rahimi v. Greece, App. No. 8687/08.
• ECtHR, 4 November 2014, Tarakhel v. Switzerland, (GS), App. No. 29217/12.
• ECtHR, 12 July 2016, A.B. v. France, App. No. 11593/12.
• ECtHR, 22 February 2017, Adbdullahi Elmi and Aweys Abubakar v. Malta, App. Nos. 25794/13 and 28151/13.
• ECtHR, 4 June 2020, W.S. v. Greece, App. No. 56827/13.
• ECtHR, 21 July 2022, Darboe and Camara v. Italy, App. No. 5797/17.
• ECtHR, 17 January 2024, A.D. v. Malta, App. No. 57841/17.
• CJEU, 6 June 2013, M.A. and Others, C-648/11, EU:C:2013:367.

Doctrine: 

• Bodson, A. and Flamand, C. “Éloignement d’un parent du territoire, entre intérêt de l’enfant et de l’État: rappel de la supériorité du premier”, Cahiers de l'EDEM, September 2025
• Carrera, S. and Geddes, A. (eds.), The EU Pact on Migration and Asylum in light of the United Nations Global Compact on Refugees International Experiences on Containment and Mobility and their Impacts on Trust and Rights, European University Institute, 2024.
• Debaere, L., “L’arrêt T.V. c. Espagne sous l’angle des procédures d’évaluation de l’âge des mineurs non accompagnés”, Cahiers de l’EDEM, décembre 2024. 
• ECRE, Reforming EU Asylum Law: The final stage ECRE’s analysis of the most important unresolved issues in the legislative reform on the Common European Asylum System (CEAS) and recommendations to the Co-legislators, Policy Paper, 2023.
• García Andrade, P., “La reforma de la legislación de la UE sobre asilo: ¿una solución europea basada en la solidaridad?, LA LEY Unión Europea, no. 125, May 2024, pp. 1–18.
• Guild, E., “Seeking Coherence Among Member States: the Common European Asylum System”, Spanish Yearbook of International Law, No. 23, 2019, pp. 183–192.
• Jakulevicenie, L., “EU Screening Regulation: closing gaps in border control while opening new protection challenges?”, EU Migration Law Blog, 2024.
• Kanics, J., “The best interests of unaccompanied and separated children: a normative framework based on the Convention on the Rights of the Child”, in M. Sedmak, B. Sauer and B. Garnik (eds.), Unaccompanied children in European migration and asylum practices. In whose best interests? Routledge, London, 2018.
• Leclercq, C., “Nouveau pacte européen pour la migration et l’asile: accès à la protection internationale en péril, la réinstallation comme contrepoids au durcissement des mesures aux frontières?”, Cahiers de l’EDEM, janvier 2024.
• Matata, G. P., “Garanties procédurales dans le cadre d’évaluation de l’âge d’un MENA – La Cour demande aux États de passer du minimal au suffisant et approprié”, Cahiers de l’EDEM, mars 2025. 
• Nama, R., “La protection des droits fondamentaux des migrants mineurs en détention. Quand la cour exige des réformes nationales”, Cahiers de l’EDEM, novembre 2024.
• Petit De Gabriel, E. W., “Separated Minors of the Dilema between General and Individual Interest in the European Union Migration Law Compliance”, Cuadernos europeos de Deusto, no. Extra-6, 2022 (Issue dedicated to: The EU Migration, Border Management and Asylum Reform in the Aftermath of the “Refugee Crisis”: Towards an Effective Enforcement), pp. 87–116.
• PICUM, Children’s rights in the 2024 Migration and Asylum Pact. Analysis of the Screening Regulation, the Asylum Procedures Regulation, the Return Border Procedure Regulation and Eurodac, PICUM Analysis, New Migration Pact Series, October 2024.
• UNHCR, Guidelines on Policies and Procedures in Relation to Unaccompanied Asylum-Seeking Minors, 1997.
• Veys, S. and Flamand, C., “L’effectivité du principe de l’intérêt supérieur de l’enfant dans l’évaluation du besoin de protection internationale”, Cahiers de l’EDEM, septembre 2024.

To cite this contribution: L. Padilla Espinosa, “The New European Pact on Migration and Asylum and the rights of child asylum seekers: between migration management efficiency and enhanced child protection”, Cahiers de l'EDEM, December 2025.