European legal and policy framework on immigration detention of children
5.3. Shortest appropriate
period of time
European and international law requires that immigration
detention be only as long as necessary. This means
that, for example, detention in view of implementing
a removal becomes arbitrary where reasonable prospect of removal no longer exists and the person must
be immediately released.211 There must be clear and
cogent evidence, not just bare assertion, of the necessity in each individual case.212 This safeguard concerns
anyone, not only children.
For children, this safeguard is even stronger. At the
EU level, Article 11 (2) of the Reception Conditions
Directive and Article 17 (1) of the Return Directive provide that detention of children must be for the shortest appropriate period of time. It is in this spirit that
the Dublin Regulation contains reduced time limits for
submitting and responding to transfer requests when
asylum applicants are detained.213
Sometimes a more stringent approach is taken, by
requiring detention to be for not only the shortest
appropriate time, but the shortest possible time. This
is the approach that, for example, the Dublin Regulation
takes. Its preamble mentions that detention “should be
as short a period as possible”.214 Similarly, the CPT recommends that when, exceptionally, children are held
with their parents in a detention centre, the deprivation of liberty should detention of children be for “the
shortest possible period of time”.215
58
5.3.1. Setting maximum time limits for
detaining children
Neither international nor European human rights law
establishes a maximum time for detention of adults or
children. Only in 2012, the UNHCR underlined the need
to set a maximum detention period in national legislation to guard against arbitrariness.216
Ø The Return Directive is the first binding supranational document providing a maximum length
of immigration detention, albeit only for preremoval detention. No equivalent provision
is in the Reception Conditions Directive. The
rationale for an upper limit is the desire to
prevent instances of indefinite detention. It is
based on the consideration that, after a certain
time has elapsed and the removal has not
been implemented, however exceptional the
circumstances are, the deprivation of liberty
loses its initial purpose and becomes arbitrary.
EU Member States can take different measures to
ensure that children are kept in detention for the shortest possible period. This report reviews three options,
as illustrated in Figure 12, namely (1) the establishment
of maximum time limits for detention of children, (2)
ensuring more regular reviews and (3) speeding up the
main procedure (e.g. asylum or return procedure) during
which a child is detained.
The Return Directive has established the upper limit at
18 months. It received strong criticism internationally
and from civil society at the time of its adoption.217 The
Return Directive provides two ceilings. The first ceiling is set at six months (Article 15 (5)). Pre-removal
detention should normally not be extended beyond
such a period. In exceptional cases, Article 15 (6) of
the directive provides two exceptions in which detention can be extended for a further 12 months (up to 18
months in total), provided that the possibility is set forth
in national law and the authorities make all reasonable
efforts to carry out the removal. The first exception
is when the removal procedure is likely to last longer
because the person does not cooperate. The second
exception is beyond the person’s influence; it is if the
country of return delays issuing the necessary documentation. Further extension is not possible beyond
these reasons and these deadlines.218
211 Return Directive, Article 15 (4); CJEU, C-357/09, Said
Shamilovich Kadzoev (Huchbarov), 30 November 2009,
para. 63; ECtHR, Mikolenko v. Estonia, No. 10664/05,
8 October 2009, para. 68; UN, Report of the Working Group
on Arbitrary Detention, 18 January 2010, A/HRC/13/30,
para. 64. See also the Opinion by the Working Group
in Mustafa Abdi v. United Kingdom of Great Britain and
Northern Ireland, Opinion No. 45/2006, A/HRC/7/4/Add.1
at 40.
212 FRA and the ECtHR (2014), Handbook on European law
relating to asylum, borders and immigration, Luxembourg,
Publications Office, p. 156.
213 Dublin Regulation, Article 28 (3).
214 Recast Dublin Regulation, recital (20).
215 CPT, Factsheet on Immigration detention, CPT/Inf (2017)3,
March 2017.
216 UNHCR, Guidelines on the Applicable Criteria and Standards
relating to the Detention of Asylum-Seekers and Alternatives
to Detention, 2012, Guideline 6. See also UN, Committee on the
Protection of the Rights of All Migrant Workers and Members
of Their Families, General Comment No. 2 on the rights of
migrant workers in an irregular situation and members of their
families, 28 August 2013, CMW/C/GC/2, para. 27.
217 See press release of the UN, ‘UN experts express concern
about proposed EU Return Directive’, Geneva, 18 July 2008;
UNHCR, UNHCR Position on the Proposal for a Directive
on Common Standards and Procedures in Member States
for Returning Illegally Staying Third-Country Nationals,
16 June 2008, p. 2. See also ECRE and Amnesty International
(2008), ‘Returns’ Directive: European Parliament and
Member States risk compromising respect for migrants’
rights’, Joint press release, 20 May 2008 as well as the
attached letter to European Parliament Members.,
218 See CJEU, C-357/09, Said Shamilovich Kadzoev (Huchbarov),
30 November 2009, para. 60.
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