Ensuring children’s right to protection and care
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.
Fully respecting children’s right to liberty and security
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.
Establishing clear legal basis for detention in national law
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.
Adhering strictly to the exhaustive list of detention grounds
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.
Assessing necessity and proportionality
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.
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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.
Applying child-specific procedural safeguards
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.
Ensuring humane and dignified detention conditions
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.
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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.
Using effective oversight mechanisms
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.