Detention of third-country nationals in return procedures
This research could not document any good practices
on type and methodology of the assessment required
in order to determine in each individual case whether
detention with the parents or separation is in the best
interests of the child.
FRA Opinion
When determining whether families with children
should be detained with their parents or primary
caregiver, paramount importance has to be given to
the child’s best interests and alternatives to detention
actively considered. Where, exceptionally, alternatives
are not sufficient and it is considered necessary to
detain the parent(s), children should only be detained
with their parents, if – after a careful assessment of
all individual circumstances and having given due
weight to the views of the child in accordance with his/
her age and maturity – keeping the child with them
is considered to be in the child’s best interests. This
should be clarified in national legislation.
6.3. Detention of separated children
Committee on the Rights of the Child,
General Comment No. 6
Paragraph 61
Detention cannot be justified solely on the basis of the
child being unaccompanied or separated, or on their
migratory or residence status, or lack thereof.
This section relates to children who are separated
from their parents or primary caregiver (but not
necessarily from other family members).335 Pre-removal
detention of separated children is controversial under
international law.
According to Article 20 of the Convention on the
Rights of the Child, children deprived of their family
environment are entitled to special protection and
assistance to be provided by the State. A joint reading
of the restrictions to resort to detention included in
Article 37, the protection provision of Article 20, and the
best interests principle enshrined in Article 3, can lead
to the conclusion that in principle separated children
should not be deprived of their liberty for the purpose of
facilitating their removal, unless this is considered to be
in the child’s best interests (for example, to prevent harm
to the child).
26 October 2009 at 62.0.5, as well as for Denmark, Danish Institute
for Human Rights, Afviste asylansøgere og andre udlændinge i
udsendelsesposition i Danmark [Rejected asylum seekers and other aliens
in return positions in Denmark], 2009.
335 See on the detention of separated asylum seeking children, FRA,
Separated, asylum-seeking children in European Union Member States,
Summary Report, April 2010, pp. 45-47.
58
In this sense, as highlighted in the box above, the
Committee on the Rights of the Child rejects detention
of unaccompanied or separated children, if based only
on the lack of residence status.336 The UN Working Group
on Arbitrary Detention takes the same approach, albeit
using a more cautious language. It indicated that “[g]
iven the availability of alternatives to detention, it is
difficult to conceive of a situation in which the detention
of an unaccompanied minor would comply with the
requirements stipulated in Article 37 (b), clause 2, of the
Convention on the Rights of the Child”.337
While not excluding the possibility of resorting to
deprivation of liberty, the Council of Europe Twenty
Guidelines on Forced Return recommend that separated
children be accommodated in institutions equipped
with “personnel and facilities which take into account the
needs of persons of their age”.338 In Mitunga v. Belgium,
the ECtHR concluded that the closed centre in which the
applicant was detained was not suitable for the extreme
vulnerability of an unaccompanied foreign minor, thus
attaching particular importance to the fact that the facility
used to accommodate separated children must cater for
the specific needs of the child.339
The recent EU Action Plan on Unaccompanied Minors
envisages that where detention is exceptionally justified, it
is to be used only as a measure of last resort, for the shortest
appropriate period of time, and taking into account the
best interests of the child as a primary consideration.340 In
addition, Article 17.3 of the Return Directive reaffirms the
duty to accommodate separated children in institutions
equipped with personnel and facilities which take into
account the needs of persons of their age. Such duty is
however qualified by ‘as far as possible’.
Regarding state practice, in one third of the EU Member
States, separated children cannot be kept in pre-removal
detention.341 These include the three countries which
prohibit the detention of children in general,342 as well as
an additional six countries that allow the detention
336 Committee on the Rights of the Child, General Comment No. 6, Treatment
of unaccompanied and separated children outside their country of origin,
CRC/GC/2005/6 at 61.
337 See Report of the Working Group on Arbitrary Detention, paragraph 64
(Human Rights Council, 13th session UN General Assembly, A/HRC/13/30,
18 January 2010), paragraph 60.
338 See Guideline 11.3
339 See Footnote 55.
340 Communication by the Commission to the European Council and the
Parliament, Action Plan on Unaccompanied Minors (2010–2014),
COM(2010)213 final, Brussels, 6 May 2010, p. 9.
341 More detailed information on detention of separated children can be
found in the recent study undertaken by the European Migration Network,
which covered most European Union countries, see country reports as
well as synthesis report on Policies on Reception, Return and Integration
arrangements for, and numbers of, Unaccompanied Minors – an EU
comparative study, 2009-2010.
342 This is the case of Hungary, Italy and Ireland (see Footnote 320).
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