European legal and policy framework on immigration detention of children
Tools and guidance: Presenting legal sources and tools on alternatives to detention
FRA has compiled guidance to policymakers and practitioners
on the use of non-custodial measures for asylum seekers and
people in return procedures. Alternatives to detention can
include the obligation to surrender passports, the duty to live
in a particular address or region, or the obligation to report
regularly to the police (see graphic).
Any restrictions on the rights concerned must conform
with human rights law. A particularly useful tool in the FRA
compilation is the 2015 handbook on There are alternatives by
the International Detention Coalition. In 2015, UNHCR also issued
a paper on Options for governments on open reception and
alternatives to detention.
For more information, see FRA’s paper on Alternatives to detention
Ø EU law, the Council of Europe and international
human rights law require to provide for
alternatives to detention. The ECtHR has been
very firm in suggesting that respecting the
best interests of the child requires states to
adopt alternatives to detention. Where the
authorities fail to examine all alternatives
to detention, the detention of a child will be
considered arbitrary and a violation of their
rights to liberty and security.168
EU secondary law requires Member States to first
examine the viability of alternatives to detention before
resorting to deprivation of liberty for asylum or return
purposes. This requirement concerns everyone, regardless of age. Recital (20) of the Reception Conditions
Directive allows detention only “after all non-custodial alternative measures to detention have been duly
examined” and underlines that any alternative measure to detention must respect the fundamental human
rights of asylum applicants. In Article 8 (4) the directive provides some examples of possible alternatives
to detention (regular reporting to the authorities, the
deposit of a financial guarantee, or an obligation to stay
at an assigned place) and requires Member States to
lay down alternatives to detention in national law. Article 28 of the Dublin Regulation and Article 15 (1) of the
Return Directive require priority to be given to the use
of “other sufficient but less coercive measures” than
detention. The Return Directive establishes that deprivation of liberty is justified only if there are no less
coercive measures that would be sufficient to achieve
the same aim.169 Article 15 (1) of the directive must be
interpreted as requiring each Member State to provide
168 ECtHR, Rahimi v. Greece, No. 8687/08, 5 April 2011,
para. 109.
169 Return Directive, Article 15 (1) read in conjunction with
recital (16).
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alternatives to detention in its national legislation.170
Furthermore, the Return Handbook reminds Member
States that they should end detention on a case-by-case
basis if alternatives to detention become an appropriate option.171
Respecting the best interests of the child requires the
state to explore all alternatives to detention for migrant
children, the ECtHR considers. As a result, if the authorities do not examine the situation of the child, and do
not verify that the child’s placement in administrative
detention is a last resort and no alternative is available,
then this amounts to a violation of the child’s right to
liberty.172 The Court has also ruled that, if the authorities
fail to examine all alternatives to detention, the detention of a child will be considered arbitrary and a violation of their rights to liberty and security as enshrined
by Article 5 of the ECHR.173 The CPT also considers that
there should be meaningful alternatives to detention
for certain vulnerable categories of person, including
children and families with young children.174
At the UN level, in interpreting the prohibition of
arbitrary detention contained in Article 9 (1) of the
ICCPR, the Human Rights Committee observed that
deprivation of liberty cannot be considered necessary if other, less invasive means to achieve the same
ends could have been available and applied (e.g. by the
170 European Commission (2015), Commission Recommendation
of 1.10.2015 establishing a common “Return Handbook”
to be used by Member States’ competent authorities
when carrying out return related tasks, C(2015) 6250 final,
Brussels, 1 October 2015, p. 79.
171 Ibid, p. 84.
172 ECtHR, Popov v. France, Nos. 39472/07 and 39474/07,
19 January 2012, para. 119.
173 ECtHR, A.B. and Others v. France, No. 11593/12, 12 July 2016;
R.M. and M.M. v. France, No. 33201/11, 12 July 2016; A.M.
and Others v. France, No. 24587/12, 12 July 2016; R.K.
v. France, No. 68264/14, 12 July 2016.
174 Council of Europe, CPT, Factsheet on Immigration detention,
CPT/Inf(2017)3, March 2017.
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