Assessing necessity and proportionality
for example, in the context of asylum procedures, the
Federal Office for Immigration and Asylum reviews
a detention order every four weeks. 237 In Malta, the
Immigration Appeals Board automatically reviews the
detention order imposed upon an asylum applicant
after seven working days, although this period can be
extended by additional seven working days for duly
justified reasons. If the applicant remains in detention,
further reviews are conducted every two months.238
These two examples concern all detention orders. In
some cases, there are specific provisions for children.
For example, in Finland, a District Court must confirm
the detention order within four days, or 24 hours for
unaccompanied children.239 If the detained person is not
released, the District Court must review the matter on
its own initiative no later than two weeks after its previous decision.240 Similarly, in Romania, when children are
detained with one or both parents or a legal guardian,
the General Inspectorate for Immigration reviews the
detention decision within one month, instead of three
months as for adults.241
Promising practice
Involving specialised child protection
staff when ordering or extending
detention
Regular assessments and reviews involving
competent child protection authorities and
other specialised staff serve to safeguard the
best interests of the child. They can determine
whether or not the child’s health has deteriorated
as a result of the deprivation of liberty.
This is the case in Finland. Section 125 (a) of the
Finnish Aliens Act requires the municipal child
welfare authority to provide a written assessment
by a professionally qualified social worker to
a District Court that is hearing a child detention
case.’ The qualified expert has an opportunity to
be heard by the court.
Source: Finland, Finnish Aliens Act, Section 122 read in
conjunction with Section 117a and Section 121
237 Austria, Aliens Police Act Act (Fremdenpolizeigesetz),
Article 80 (6).
238 Malta, Reception of Asylum-seekers Regulations, Subsidiary
Legislation 420.06, as amended by Legal Notice 417 of 2015
Reg.6.3–4.
239 Finland, Aliens Act, Section 124 (2) .
240 Finland, Aliens Act, Section 128.
241 Romania, Aliens Act, Emergency Ordinance No. 194/2002
on the legal regime of aliens in Romania, Article 101(13) and
106(3).
5.3.3. Prioritise procedures involving
children
Another factor affecting the length of potential
detention is the overall duration of the procedure based
on which the detention is imposed. In this context, the
vulnerability of children and their perception of the
passing of time mean that prolonged decision-making
in asylum or return-related proceedings have particularly adverse effects on children. The UN Committee
on the Rights of the Child, therefore, called in its General Comment No. 14 (2013) for procedures or processes
regarding or impacting children to be prioritised and
completed in the shortest time possible.242 In A.B. and
Others v. France, the ECtHR criticised the absence of
effective steps by the authorities to execute the expulsion order swiftly, noting that the applicants had been
detained for 18 days without any flight being organised
or documents being obtained.243
Prioritising procedures involving children requires that
children are immediately identified, particularly when
they travel unaccompanied or are at risk. At borders,
the Frontex Vega Handbook, initially designed for airports but now being adapted for use at land and sea
borders, is a handy tool for Frontex as well as national
border guards to swiftly refer children at risk to appropriate child protection services thus reducing the risk
of arbitrary detention.
In the field of asylum, one way to complete procedures
swiftly without reducing the quality of the examination
is to assess the claims of children first. Article 31 (7)
of the Asylum Procedures Directive explicitly gives
EU Member States the option to prioritise examination of an application for international protection in
the case of applicants who are vulnerable or in need
of special procedural guarantees. It refers in particular
to unaccompanied children. In the exceptional cases
where detention of asylum-seeking children is deemed
absolutely necessary as a last resort, such an approach
could help reduce the length of detention to the minimum possible time.
Some EU Member States address the need to conduct
procedures related to children swiftly in national law.
Article 6 of the Finnish Aliens Act, for example, stipulates that matters concerning children are to be processed urgently. In Romania, the relevant legislation
explicitly stipulates that the asylum application of an
unaccompanied child must be “analysed as a matter of
242 UN, Committee on the Rights of the Child, General Comment
No. 14 (2013) on the right of the child to have his or her best
interests taken as a primary consideration (art.3, para. 1),
29 May 2013, CRC/C/GC/14, para. 93.
243 ECtHR, A.B. and Others v. France, No. 11593/12, 12 July 2016,
para. 155.
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