The right of children to protection and care and the principle of the best interests of the child as set out in Article 24 of the EU Charter of Fundamental Rights are the starting points when examining deprivation of liberty of children. As noted by the European Commission in its 2017 Communication on the protection of children in migration, in some instances, children have been accommodated in closed facilities due to a shortage of suitable alternative reception facilities. Prompt identification of children is needed to trigger the special protection to which children are entitled.
To promote children’s right to protection and care, the EU and its Member States should develop credible and effective systems that would make it unnecessary to detain children for asylum or return purposes, regardless of whether they are in the EU alone or with their families. This could include building on, for example, case management, alternative housing, counselling and coaching.
EU Member States should use age assessments only where there are grounds for serious doubt about an individual’s age. Age assessment procedures should take into account children’s rights. Independent experts, familiar with the respective child’s cultural background and fully respecting the child’s dignity, should undertake in a gender-appropriate manner age assessments. Recognising that age assessments cannot be precise, in cases of doubt, authorities should treat the person as a child. They should also permit appeals against age assessment decisions. The forthcoming European Asylum Support Office (EASO) guidance should provide further advice to EU Member States on how to apply these considerations in practice.
A person’s right to liberty and security, as enshrined in EU, Council of Europe and UN instruments, is a fundamental right. Any restriction of this right must respect the requirements established by international, European and national law, which are particularly strict for children. Neither EU law nor the ECHR prohibit immigration detention of children. The stringent requirements flowing from the Charter and the case law of the European Court of Human Rights (ECtHR) mean, however, that only in exceptional cases depriving children of liberty will be in line with EU law.
To protect the right to liberty and security (Article 6 of the Charter), EU Member States are encouraged to introduce more favourable provisions in national laws – as envisaged in Article 4 (3) of the Return Directive and Article 4 of the Reception Conditions Directive – either prohibiting or further restricting the possibility to detain children for immigration purposes. This would significantly contribute to avoiding the risk of arbitrary detention of children. Concerning asylum detention, the current reform of the asylum acquis is an opportunity for EU legislators to take a stronger stand against child detention.
EU Member States should systematically collect disaggregate data on children in immigration detention, while the European Commission should encourage the comparability of such data through Eurostat.
For detention to be lawful, it is essential under EU law, the ECHR and international law that national law provides for the possibility to detain non-nationals for immigration or asylum purposes. In the absence of a clear domestic legal basis, no detention whatsoever can be deemed lawful. Several EU Member States manage their asylum and return policies without resorting to deprivation of liberty.
The European Commission should disseminate information about and promote EU Member States’ positive experiences with managing their asylum and return policies without resorting to child detention or resorting to it in very exceptional cases only. The forthcoming 2017 European Forum on the Rights of the Child could be an ideal venue for taking the first step regarding this.
The ECHR and EU law list exhaustive but not identical permissible grounds for detention, which apply to everyone regardless of age. EU Member States must strictly adhere to these detention grounds, which have to be interpreted restrictively, according to Article 18 of the ECHR. In practice, immigration detention is sometimes imposed for public order-based reasons.
Domestic legislation regulating immigration or asylum should not be used to detain individuals on grounds of public order, thereby circumventing the safeguards established under human rights law for criminal detention. EU Member States should ensure that grounds for immigration detention established at national level do not extend beyond the exhaustive list of legitimate grounds listed in Article 5 (1) of the ECHR, as well as those permissible under the EU asylum and return acquis.
Detention to secure return is not lawful in the absence of realistic prospects for removal. EU Member States could consider introducing a presumption against pre-removal detention for de jure as well as de facto stateless persons, including children. This should be one in cases where it is evident from past experience that the country of former habitual residence will not readmit the person or, for de facto stateless persons, the country of nationality will refuse any cooperation in establishing the citizenship and issuing related travel documents.
Given its short- and long-term consequences on children’s development, EU Member States should not use deprivation of liberty as a means to protect children from exploitation and to mitigate risks of them going missing. These risks should be countered by improving reception conditions (including by assigning specialised support staff on a 24/7 basis); strengthening guardianship systems; and gaining a better understanding of why children go missing and what can be done to prevent their disappearance. These efforts should be accompanied by effective mechanisms to record when a child goes missing and to follow up when the child is found again, as FRA points out in its Opinion on the impact on fundamental rights of the proposal for a revised Eurodac Regulation.
EU and human rights law prohibit automatic detention; an individual examination is therefore always needed before ordering detention. In practice, detention decisions involving children are not necessarily based on careful, individual assessments of necessity and proportionality, as required by Articles 6 and 52 (1) of the Charter. In addition, they do not always give primary consideration to the best interests of the child. Regarding the length of detention, for all persons and not just children, European and international law require immigration detention to be only as long as necessary and to last for the shortest appropriate period.
Where they have not yet done so, EU Member States should issue simple and practicable instructions to support officers responsible for preparing or issuing detention decisions. These instructions should advise officers on the steps to take to ensure that necessity and proportionality are adequately assessed in each individual case, giving primary consideration to the best interests of the child.
EU Member States must take adequate legislative and policy measures to ensure that alternatives to detention are not only available on paper but also used in practice for families and children. In the absence of such measures, national authorities cannot justify the use of detention as a last resort.
When deciding whether or not to detain a family with children, EU Member States should always thoroughly assess the best interests of the child, which means being with the parents in open facilities that enable the family to live with dignity. If they are detained, detention has to take place in facilities adequately equipped to host families, also duly taking into account the length of the deprivation of liberty.
EU Member States that allow immigration detention of children should consider fixing a maximum length of child detention. This should be coupled with regular judicial reviews of the necessity and proportionality of detention, which should be based on an individual assessment of the child’s situation by the competent national child protection authorities.
To ensure that detention is neither unlawful nor arbitrary and, when imposed, does not limit fundamental rights unduly, European and international law provides a set of procedural safeguards. These include the right to judicial review, access to free legal aid and linguistic assistance. Alongside these general safeguards, child-specific safeguards exist, such as appointing guardians for unaccompanied children, as well as conducting procedures and providing information in a child-friendly manner.
To ensure children’s right to be heard, which is a general principle of EU law, EU Member States should develop and use child-friendly information and materials, and train officers and other relevant staff to conduct procedures in a child-appropriate manner and facilitate children’s involvement.
In light of Article 24 of the Charter (rights of the child), EU Member States should appoint a guardian as soon as an unaccompanied child is identified and before they decide on deprivation of liberty.
Every detention facility at which children are held as asylum seekers or for the purpose of removal must ensure humane and dignified detention conditions. Strict legal standards have been developed at EU, Council of Europe and international levels. Even if detention in the migration context is based on valid grounds prescribed by law and fulfils the formal criteria of legality, the conditions of detention may result in breaches of EU law and render deprivation of liberty arbitrary.
Asylum-seeking children and children in return procedures must not be deprived of liberty if available facilities do not guarantee minimum standards for the child’s well-being. To achieve this, EU Member States must create child-friendly spaces and take effective measures to prevent holding facilities from being like prisons. This affects infrastructure (such as removing barbed wire or bars on windows), the use of force (e.g. avoiding systematic handcuffing of children or their parents during transport), reducing the number of uniformed and armed staff, and adopting flexible house rules (e.g. free access to the yard).
To guarantee the right to education set out in Article 14 of the Charter, EU Member States must provide children with access to education. Where detention lasts longer than a very short period, education must be provided. Children should have access to a formal education system, taught by qualified teachers through programmes integrated in the country’s education system. Priority should be given to providing education outside of detention facilities.
EU Member States should take proactive measures to guarantee detained children the right to healthcare enshrined in Article 35 of the Charter. To that end, they should ensure regular visits by paediatricians from outside the facilities, provide effective interpretation services and ensure accessibility of medicines. Medical consultations and medical information must be confidential and child-appropriate.
Persons deprived of liberty are confined to locations that are not subject to public scrutiny, so are at a higher risk of facing human rights violations. Therefore, effective oversight mechanisms are necessary to prevent abuse and essential to ensure accountability for potential human rights violations. These oversight systems include international, EU (Schengen evaluations under Regulation (EU) No. 1053/2013) and national mechanisms, such as independent monitoring bodies or child protection authorities. In addition, effective complaints procedures represent a basic safeguard against ill-treatment in detention.
When designing approaches to immigration detention of children, EU Member State authorities should make full use of the advice and engage the participation of ombuds institutions and National Human Rights Institutions, especially those with child-specific mandates. Child protection authorities in EU Member States should devote primary attention to children deprived of liberty for immigration purposes. Responsible authorities should consult child protection agencies, at least when assessing whether or not to detain a child together with their parents. Child protection authorities should also regularly visit children held in immigration detention
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The European Commission could consider undertaking unannounced Schengen evaluation visits if there is evidence of arbitrary use of child detention pending removal in a given EU Member State.
EU Member States should ensure that each detention or other holding facility offers childaccessible ways to submit complaints, for example through a complaint box, and that they inform children in a child-friendly manner about their right to lodge a complaint. Responsible authorities should follow up on each individual complaint.