First contact
Registration
Identification
Accomodation
First assistance
Age assessment
Family tracing
Relocation
Case assessment
Care planning Life project
Education and training
Work
Health care
Residence permit
Asylum procedure
Best interests determination
Identification of a durable solution
Implementation of a durable solution
Family reunification
Preventing Immigration detention
Turning 18: Leaving care
Aftercare
Ending guardianship
Preventing immigration detention
The Convention on the Rights of the Child affords
under Article 37(b) that no child shall be deprived of his or her liberty
unlawfully or arbitrarily. The arrest, detention or imprisonment of a child
shall be in conformity with the law and shall be used only as a measure of last
resort and for the shortest appropriate period of time. The
Committee on the Rights of the Child considers the immigration detention of
unaccompanied to fall under the scope of CRC Article 37(b) and noted that unaccompanied
should not, as a general rule, be detained: “Detention cannot be justified
solely on the basis of the child being unaccompanied or separated, or on their
migratory or residence status, or lack thereof.”[1]
In the
EU, the immigration detention of third-country nationals is primarily regulated
under the EU Return Directive 2008/115/EC.[2] The Directive establishes that third country nationals may be detained
prior to their return only under certain circumstances, for instance when there
are reasons to assume that the returnee will seek to evade the return (Article
15). In relation to unaccompanied
children and families with children, the Directive establishes that detention
shall be ordered only as a measure of last resort and for the shortest period
of time, giving due consideration to the best interests of the child. Qualified
personnel and appropriate accommodation need to be made available for
unaccompanied children as well as children detained together with family
members. Children in detention shall have the possibility to
engage in leisure activities, including play and recreational activities
appropriate to their age, and shall have, depending on the length of their
stay, access to education (Article 17).
The
Committee on the Rights of the Child emphasises that Article 37(b) provides not
only for the protection from administrative detention for immigration reasons
but protects children also from the deprivation of liberty in relation to child
protection matters, such as placement in closed institutions for children or
placements from which children cannot easily leave.[3]
The
guardian is responsible for representing the child and safeguarding the rights
of the child in the context of immigration detention – and any other situation
where the child is deprived of liberty – in particular by questioning the
competent authorities to document and reason how the immigration detention of
the child has been determined to be in the best interests of the child. A
guardian should advocate for the referral of the child to alternative measures
to detention and monitor compliance with the rights of the child.
Literature:
FRA
(European Union Agency for Fundamental Rights) (2014), Guardianship for children deprived of parental care,
A handbook to reinforce guardianship systems to cater for the specific needs of
child victims of trafficking, Luxembourg, Publications
Office of the European Union (Publications Office).
FRA
(European Union Agency for Fundamental Rights) (2011), Detention of third-country nationals in return procedures, Luxembourg, Publications Office of the European
Union (Publications Office).
Initiative
for Children in Migration (2019), Child immigration detention in the EU
.
Interagency
Working Group to End Child Immigration Detention (undated), Ending child immigration detention
.
UNHCR
(2017), UNHCR’s position regarding the detention of refugee and migrant children in the migration context,
Division of International Protection.
UNICEF
(2019), Alternatives to immigration detention of children
,
UNICEF Working Paper.
United Nations (UN), Committee on the
Rights of the Child (2005), General Comment No. 6 (2005), Treatment of
unaccompanied and separated children outside their country of origin, CRC/GC/2005,
1 September 2005.
[1] United Nations (UN), Committee on the
Rights of the Child (2005), General Comment No. 6 (2005),
Treatment of unaccompanied and separated children outside their country of
origin, CRC/GC/2005, 1 September 2005, par. 61.
[2] Council Directive 2008/115/EC of 16 December 2008 on common standards and
procedures in Member States for returning illegally staying third-country
nationals, OJ L 348 (Return Directive).
[3] United Nations (UN), Committee on the
Rights of the Child (2005), General Comment No. 6 (2005),
Treatment of unaccompanied and separated children outside their country of
origin, CRC/GC/2005, 1 September 2005, par. 40.
Shabas, William and Helmut Sax (2006), A commentary on the United Nations Convention on the Rights of the
Child, Article 37: Prohibition of torture, death penalty, life imprisonment and
deprivation of liberty, Martinus Nijhoff Publishers, Lieden, Boston, pp.
60, 82.