Assessing necessity and proportionality
imposition of reporting obligations, sureties or other
conditions).175 Also, the Committee on the Rights of the
Child and the Special Rapporteur on Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
have called on all states to establish alternatives to
detention, in accordance with the best interests of the
child and the right to liberty.176 In this spirit the UN Working Group on Arbitrary Detention concluded that, given
the availability of alternatives to detention, it is difficult
to conceive of a situation in which the detention of an
unaccompanied child would comply with the requirements stipulated in Article 37 (b) of the CRC, according
to which detention can be used only as a last resort.177
In relation to using detention as a last resort, most
Member States have not established alternatives
to detention specially designed for children in law,
although Finland introduced designated residence as an
alternative to detention for children aged 15 – 17 years
against whom the authorities have issued an enforceable expulsion order in 2017.178 However, even if not
limited to families and children, in practice, alternatives
to detention are often provided to families and children.
For example, in Spain children stay with their relatives in
the community while their status is being determined.179
Concerning children with families, alternatives may be
imposed on the family as a whole. For example, in Estonia the alternative to detention applied to the adult will
also be applied to the child.180 These alternative measures can include living in a specified place, appearing
for registration at the Police and Border Guard Board, or
surrendering a travel or identity document.181
175 UN, Human Rights Committee, Communication
No. 900/1999, C. v. Australia, 13 November 2002, para. 8.2;
Saed Shams and Others v. Australia, Communications
Nos. 1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004,
11 September 2007, para. 7.2.
176 UN, Committee on the Rights of the Child, Report of the
2012 Day of General Discussion: The Rights of all Children
in the Context of International Migration, paras. 79 and 84;
UN, Human Rights Council, Report of the Special Rapporteur
on Torture and other cruel, inhuman or degrading treatment
or punishment, 5 March 2015, A/HRC/28/68, para. 85.
177 UN, Report of the Working Group on Arbitrary Detention,
15 January 2010, A/HRC/13/30, para. 60. See also Report of
the Working Group on Arbitrary Detention, 10 January 2008,
A/HRC/7/4, para. 80.
178 Finland, Aliens Act (ulkomaalaislaki/utlänningslag)
(301/2004), Chapter 7, Section 120(b).
179 International Detention Coalition, NGO monitoring of
immigration detention: Tips, examples and positive
practices.
180 Estonia, Section 12(1) Obligation to Leave and Prohibition on
Entry Act (Väljasõidukohustuse ja issesõidukeelu seadus),
January 2016.
181 Ibid.
Promising practice
Accommodating families with
children in open facilities
Belgium has set up an option to accommodate
families with children in open facilities with caseworker support, such as from a social worker,
after several rulings from the ECtHR against
the country. If a family receives a repatriation
order because its application to stay in the
territory has been rejected or is no longer valid,
the family is transferred to a return house with
support from a case worker or stays in its own
residence, providing the dwelling meets the basic
requirements of safety and human dignity. This
alternative, introduced in practice in 2014, allows
families with children to stay in their own houses
when preparing to return to their country of origin.
Whether they stay in their own dwellings or are
placed in return houses, families must comply
with certain conditions. The conditions imposed
vary on the type of arrangement and may include
the reimbursement of costs incurred for damage
caused to the Belgian State or the need to pay
a deposit, being able to support the family needs,
permitting the case worker to access the house
at the requested time, and reporting or other
obligations.
Sources: Legal source for the return houses: Belgium, Royal
Decree fixing the regime and the determining rules applying
to the accommodation provided under Article 74/8, (1) of the
Law of 15 December 1980 on access to the territory, stay,
settlement and removal of foreigners 14 May 2009. Legal
source for the stay at the own residence with return support:
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); Belgium,
Royal Decree of 17 September 2014 determining the content
of the agreement and the sanctions which may be taken
pursuant to Article 74/9 (3) of the Law of 15 December 1980
on access to the territory, stay, settlement and removal of
foreigners 17 September 2014 (also legal source on the
condition to fulfil)
Judgments by the ECtHR can make a difference in
promoting the application of alternatives to detention,
as shown by initiatives taken in France following the
Popov ruling.182 After a recommendation by the General Controller of Prisons, the Ministry of the Interior
issued a circular stressing that alternatives to detention, namely designated residence, should be the norm
for families,183 although civil society reports that this
182 ECtHR, Popov v. France, No. 39472/07 and 39474/07,
19 January 2012.
183 France, Ministry of Interior (Ministère de l’Intérieur), Circular
(Circulaire), 6 July 2012.
51
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