Executive summary and FRA opinions
interpreted restrictively, according to Article 18 of the
ECHR. In practice, immigration detention is sometimes
imposed for public order-based reasons.
FRA opinion 4
Domestic legislation regulating immigration or
asylum should not be used to detain individuals
on grounds of public order, thereby circumventing
the safeguards established under human rights
law for criminal detention. EU Member States
should ensure that grounds for immigration
detention established at national level do not
extend beyond the exhaustive list of legitimate
grounds listed in Article 5 (1) of the ECHR, as well
as those permissible under the EU asylum and
return acquis.
Detention to secure return is not lawful in the
absence of realistic prospects for removal.
EU Member States could consider introducing
a presumption against pre-removal detention
for de jure as well as de facto stateless persons,
including children. This should be one in cases
where it is evident from past experience that
the country of former habitual residence will
not readmit the person or, for de facto stateless
persons, the country of nationality will refuse
any cooperation in establishing the citizenship
and issuing related travel documents.
Given its short- and long-term consequences
on children’s development, EU Member States
should not use deprivation of liberty as a means to
protect children from exploitation and to mitigate
risks of them going missing. These risks should
be countered by improving reception conditions
(including by assigning specialised support staff
on a 24/7 basis); strengthening guardianship
systems; and gaining a better understanding of
why children go missing and what can be done
to prevent their disappearance. These efforts
should be accompanied by effective mechanisms
to record when a child goes missing and to follow
up when the child is found again, as FRA points
out in its Opinion on the impact on fundamental
rights of the proposal for a revised Eurodac
Regulation.
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.
FRA opinion 5
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.
9
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