European legal and policy framework on immigration detention of children
priority”.244 In the Netherlands, unaccompanied children
will be detained only under exceptional circumstances,
and only based on limited grounds, one being that the
deportation of the child can happen within 14 days.245
In addition, the Dublin Regulation contains reduced
time limits for submitting and responding to transfer requests when asylum applicants are detained.
Although not specifically directed at children, this mechanism contributes to reducing the periods of detention
for all persons subject to a Dublin transfer.246
Conclusion
Mandatory detention is prohibited under EU and human
rights law; an individual examination is therefore always
needed before ordering detention. Research findings
indicate that detention decisions involving children are
not necessarily based on a careful, individual assessment 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. At the same time, experience shows
that protracted cases of child detention are rare and
often linked to reasons of public order or national security, which should be regulated by criminal law rather
than immigration law.
The requirement to provide alternatives to detention
is present in EU law, Council of Europe law and international human rights law. With respect to children, the
ECtHR has been very firm in suggesting that respecting the best interests of the child requires states to
adopt alternatives to detention. Where authorities fail
to examine all alternatives to detention, the detention
of a child will be considered arbitrary and a violation of
their right to liberty and security. EU secondary law also
requires Member States to examine first the viability of
alternatives to detention before resorting to deprivation
of liberty for asylum or return purposes. This requirement concerns everyone, including children.
The right to respect for private and family life (Article 7
of the Charter and Article 8 of the ECHR) is an additional
factor when national authorities decide on the necessity
and proportionality of detaining families with children.
In practice, when national authorities decide to detain
the child with the parents or separate family members,
they rarely assess the best interests and seldom involve
the competent child protection authorities. Such an
244 Romania, Asylum Act, Article 16 (1).
245 The Netherlands, Aliens Act, Articles 59 and 59a.
246 Dublin Regulation, Article 28 (3).
62
approach is contrary to Article 24 of the Charter (rights
of the child). Conflict between the right to respect
for family life (non-separation from the parents, thus
detaining the child together with the parents) and the
best interests of the child (not detaining the child unless
as a last resort) requires careful balancing.
Regarding the length of detention, European and
international law require that immigration detention
be only as long as necessary and for the shortest appropriate period. EU Member States can use various measures to ensure that children are kept in detention for
the shortest period. They include setting maximum time
limits for the detention of children; establishing more
regular reviews; and speeding up the asylum or return
proceedings by giving priority to children.
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.
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