European legal and policy framework on immigration detention of children Ø The CJEU has underlined that any deprivation of liberty must have a legal basis in national law and that such legal basis must be of a certain quality.86 Similarly, the ECtHR requires the national legal basis to be compatible with the rule of law, a  concept inherent in all articles of the ECHR. For the law to be of a  certain quality, it must be sufficiently accessible, and precise and foreseeable in its application to avoid a  risk of arbitrariness. Any deprivation of liberty has to be in line with the purpose of Article 5 of the ECHR to protect the individual from arbitrariness.87 3.1. National laws on immigration detention of children Several EU  Member States’ provisions against immigration detention of children give more protection than the minimum requirement of EU law. Ireland prohibits child detention altogether, and more EU Member States forbid it for unaccompanied children. This section does not deal with detention of migrant children for violating national criminal law, even if in some cases such detention is very closely linked to immigration. In 2013, 17 EU Member States allowed imprisonment and/or fine for irregular entry, and 10 EU Member States allowed it for irregular stay, as illustrated in FRA’s report Criminalisation of migrants in an irregular situation and of persons engaging with them.88 In principle, children above the minimum age of criminal responsibility (set at 14 years or above in 24 out of 28 Member States)89 are not exempted from these sanctions. 86 CJEU, C-528/15, Policie ČR, Krajské ředitelství policie Ústeckého kraje, odbor cizinecké policie v. Salah Al Chodor and Others, 15 March 2017, para. 38. 87 ECtHR, Del Río Prada v. Spain [GC], No. 42750/09, 21 October 2013, para. 125; Amuur v. France, No. 19776/92, 25 June 1996, para. 50; Dougoz v. Greece, No. 40907/98, 6 March 2001, para. 55. 88 FRA (2014), Criminalisation of migrants in an irregular situation and of persons engaging with them, Luxembourg, Publications Office. 89 The exceptions are France (13 years for serious crime), Ireland, the Netherlands and the United Kingdom. See European Commission (2014), Summary of contextual overviews on children’s involvement in criminal judicial proceedings in the 28 Member States of the European Union, Table 3.1, p. 7. 34 • Hungary criminalised crossing the border fence without authorisation and seriously damaging the border fence with a penalty of imprisonment for up to 3 and 5 years, respectively.90 • An example from Lithuania details the case of two asylum-seeking children who were held in a regular prison for more than four months by mistake. They were held on charges related to irregular border crossing, since a doctor assessed their age on the basis of x-ray images without seeing the children themselves. The children were kept with adult men in a pre-trial detention prison, were not allowed to contact relatives, had restricted access to their legal representative with an interpreter and faced constant harassment.91 3.1.1. Immigration detention of children under national law This sub-section examines immigration detention of children who are with their parents. Ireland is the only EU  Member State that prohibits immigration detention of children for asylum as well as for return purposes. Section 20 (6) of the 2015 International Protection Act clarifies that the relevant provisions regarding detention do not apply to persons under the age of 18 years. Other Member States do not permit detention in principle, but do not forbid it completely. In Belgium, for example, the principle is to maintain the family unit and avoid the detention of children. Children accompanied by their parents should not be held in detention but be transferred together in return houses – form of designated residence – or, if they were living irregularly in the territory, they can stay in their own residence or be transferred to an open reception centre.92 Article 74/9 (1) of the Immigration Act states that families with children (irregularly staying in the territory or applying for asylum at the border) are in principle not detained. However, the same legal provision makes exceptions possible “if the detention facilities are adapted to the needs of families with minor children.”93 Furthermore, if families with children try to enter Belgian territory 90 Hungary, Articles 352/A and 352/B of Act C of 2012 on the Criminal Code (2012. évi C. törvény a Büntető Törvénykönyvről). 91 Lithuania, Lithuanian Red Cross, 11 February 2016. 92 Belgium, Law of 15 December 1980 on access to the territory, stay, settlement and removal of foreigners (Loi du 15 décembre 1980 sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers / Wet van 15 december 1980 betreffende de toegang tot het grondgebied, het verblijf, de vestiging en de verwijdering van vreemdelingen), 15 December 1980, Article 74/9 (3). 93 Belgium, Article 74/9 (1) of the Immigration Act, as amended by the Law of 16 November 2011, (Loi sur l’accès au territoire, le séjour, l’établissement et l’éloignement des étrangers)