Detention of (unaccompanied) minors: not at all or under certain conditions?

 

MAIN CONCLUSIONS: 

1. The EU law does not prohibit the detention of minors per se. However, detention of minors, especially unaccompanied minors, is rarely justified.

2. Decisions concerning detention must be guided by the principle of the best interests of the child, taking into account their vulnerable status, especially when unaccompanied.

3. Lack of residence status is not sufficient to justify detention of minors.

4. Alternative measures, such as family residences, foster care, or supervised independent living, are the preferred option.

5. Long-term routine detention of minors is not acceptable. Short-term detention with a valid reason (e.g. during the short initial verification phase or with the aim of effectively securing an immediately forthcoming expulsion).

6. Unaccompanied minors must be immediately provided with a guardian and, when appropriate, legal aid.

7. As a rule, minors should not be separated from their families. When detention of parents or the responsible care-giver is absolutely unavoidable, an individual assessment should me made to determine whether it is in the best interest of the child to be separated or to remain with family members in detention.

8. Detention is allowed only when appropriate separate accommodation (family units, leisure activities, no personnel in uniforms) can be guaranteed at the detention facility. Depending on the length of detention, access to education must be guaranteed.

THE LAW

Article 17 of the Return Directive

1. Unaccompanied minors and families with minors shall only be detained as a measure of last resort and for the shortest appropriate period of time.

2. Families detained pending removal shall be provided with separate accommodation guaranteeing adequate privacy.

3. Minors 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.

4. Unaccompanied minors shall, as far as possible, be provided with accommodation in institutions that have personnel and facilities which take into account the needs of persons of their age.

5. The best interests of the child shall be a primary consideration in the context of the detention of minors pending removal.

Article 37(b) of the UN Convention on the Rights of the Child provides that detention 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. According to Article 20(1) of the Convention, “A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State”. Article 3(1) stipulates that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

CPT standards (document CPT/Inf/E (2002) 1)

97. The CPT considers that every effort should be made to avoid resorting to the deprivation of liberty of an irregular migrant who is a minor. Following the principle of the “best interests of the child”, as formulated in Article 3 of the United Nations Convention on the Rights of the Child, detention of children, including unaccompanied and separated children, is rarely justified and, in the Committee’s view, can certainly not be motivated solely by the absence of residence status. When, exceptionally, a child is detained, the deprivation of liberty should be for the shortest possible period of time; all efforts should be made to allow the immediate release of unaccompanied or separated children from a detention facility and their placement in more appropriate care. Further, owing to the vulnerable nature of a child, additional safeguards should apply whenever a child is detained, particularly in those cases where the children are separated from their parents or other carers, or are unaccompanied, without parents, carers or relatives.

Villem Lapimaa, Court of Appeal of Tallinn (Estonia)

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