Europe continues to be faced with unprecedented numbers of migrants seeking protection. Migrant children are the most vulnerable group, whether they are arriving with their families or as unaccompanied minors. A worrying number of them end up in administrative detention as a result of existing immigration laws and policies. In detention facilities they are at high risk of abuse and neglect. Moreover, minors that are unaccompanied or separated from their parents or guardians are often unable to advocate for their fundamental human rights.
As shown in a number of relevant studies and documents, irrespective of the conditions, detention can lead to a number of negative health consequences to children. Even if detained for short periods, the children’s psychological and physical well-being can be undermined and their cognitive development compromised.
The action needed:
There is a great need to raise awareness on the problem of immigration detention of children in Council of Europe member States. As Doris Fiala recalled, member States have the “obligation to expeditiously and completely cease this serious violation of children rights in compliance with the UN Convention on the Rights of the Child”.
Measures need to be taken at national level to ensure that all migrant children can enjoy their full rights. This entails implementing relevant laws and adopting alternatives to immigration detention that fulfil the best interests of children.
The legal framework:
The UN Convention on the Rights of the Child defines that the best interests of the child shall be a primary consideration in all actions concerning children (Art. 3) and that “no child shall be deprived of his or her liberty unlawfully or arbitrarily” (Art. 37).
The UN Committee on the Rights of the Child has called on states to “expeditiously and completely cease the detention of children on the basis of their immigration status” and “adopt alternatives to detention that fulfil the best interests of the child” (para 78 and 79).
The EU Reception Conditions Directive obliges member States to not detain a person solely because he or she is seeking international protection (Art 8.1). Detention of minors is allowed only as a last resort and when less coercive alternative measures cannot be applied effectively. The Directive obliges member States to lay down alternatives to detention in national law (Art. 8.4). The minor’s best interests need to be a primary consideration (Art.23).
Council of Europe action:
The Parliamentary Assembly has recalled, in its Resolution 2020 that unaccompanied children should never be detained and that the detention of children on the basis of their or their parents’ immigration status is contrary to the best interests of the child and constitutes a child rights violation. PACE has called on the member States to: introduce legislation prohibiting the detention of children for immigration reasons and ensure its full implementation in practice. Governments should adopt alternatives that meet the best interests of the child and allow children to remain with their family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved.
The European Court of Human Rights has found in its rulings that: “the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant” (Art. 91 of the case of Popov v. France and Art. 55 of the case of Mubilanzila Mayeka and Kaniki Mitunga v. Belgium).
The Secretary General of the Council of Europe has stated that it is “unacceptable” that any refugee and migrant children who arrive on the continent unaccompanied by their parents are held in detention centres. He called on European countries to ensure such children can be housed in special facilities and quickly reunited with their families. [Video, Article]. The Secretary General sent a letter in March 2016 to member States urging them to make every effort to end the placement of children in immigration detention facilities, together with a document proposing a set of priority measures. [Press release]
Join the Campaign:
Join us in an international effort to combat detention of immigrant children and help put an end to this violation of their rights by signing the Global petition.
For further information, visit the Global campaign website
- « Faire évoluer vers les meilleures pratiques la prise en charge des enfants migrants en Suisse », 2017, Interpellation, Parlement suisse (French only);
- « Mettre fin à la détention administrative de mineurs, dans le respect de l’intérêt supérieur de l’enfant », 2017, Initiative parlementaire, Parlement suisse (French only);