Detention of third-country nationals in return procedures
these countries, Latvia and Luxembourg, the research did
however not find any evidence confirming that a separated
child has ever been kept in pre-removal detention.347
Denmark and Latvia have set the bar at 14 years,354
whereas in the Czech Republic separated children below
15 years cannot be detained.355
Among those countries that allow the detention of
separated children some make express reference in their
national laws to the fact that detention is only allowed
exceptionally.348 Policy guidance in the UK states that
unaccompanied minors “must only ever be detained
in the most exceptional circumstances and, then, only
overnight, with appropriate care, whilst alternative
arrangements for their safety are made”.349
A few countries require in their legislation that facilities
where separated children are held are equipped to cater
for the needs of children and thus ensuring enjoyment
of their rights under the Convention on the Rights of the
Child while they are deprived of liberty.
Various other safeguards to limit the detention of
separated children can be found in domestic law as
the following examples illustrate. The Austrian Higher
Administrative Court as well as a German court has
required a higher threshold, as compared to adults,
in order to conclude that alternatives to detention
would not suffice.350 In Finland, before a child is placed
in detention, the representative of the social welfare
authorities shall be heard351 and the best interests of the
child shall be duly considered.352
Furthermore, pre-removal detention of separated
children below a certain age is prohibited in at least six
countries. Such age can, however, be rather low; as for
example the prohibition to detain separated children
below 12 years in Greece or the Netherlands.353 Austria,
Articles 124(1) and 125(1) read in conjunction with Section 178; Finland,
Aliens Act, Section 123 (not keeping unaccompanied minors in police
detention); Greece, Presidential Decree No. 140/91 at Article 118; Poland,
Act on Aliens, Article 101 and Article 102; Latvia; Immigration Law, Ch. VII,
Article 51; Lithuania, Aliens Act, Article 114 (3); Luxemburg, Immigration
Law, Article 120; The Netherlands, Vc 2000 A6/1.5. a-c. (unaccompanied
minors between the ages of 12 and 16 years can only be detained if
they can be transferred to a detention centre for youth within four
days); Sweden, Aliens Act, Chapter 10, Section 3; and the UK, UK Border
Agency Code of Practice for keeping children safe from harm, p. 5. Malta
and Romania do not have a specific legal provision making reference
to detention of separated children. In Malta, children are detained until
medical clearance is given and age assessment concluded. For Denmark
see below, footnote 347.
347 Communication of 5 June 2009 from Caritas, Luxembourg.
348 Bulgaria, Article 44(9) of the Law on Foreigners and Sweden, Ch. 10, Sec. 3,
Aliens Act.
349 UKBA, Operational Enforcement Manual, Ch. 26.1.
350 See, for Austria, decisions by the Verwaltungsgerichtshof [Higher
Administrative Court] of 24 October 2007, 2007/21/0370 and
29 April 2008, 2007/21/0079 referring to Section 77(2) of the Aliens
Police Act available online at: http://www.ris.bka.gv.at/Vwgh,
and for Germany, Oberlandesgericht [Regional Court] Cologne,
decision of 11 September 2002, case No. 16 Wx 164/02, http://www.
abschiebungshaft.de/home/R125.html. See also the Danish Administrative
of Justice Act, Chapter 75(b), paragraph 821(a), available online at: https://
www.retsinformation.dk/Forms/R0710.aspx?id=105378: the act provides
that before deciding to detain a child, it must be confirmed that it is
impossible to achieve the purpose of the detention by less intervening
measures.
351 Aliens Act, Section 122.
352 Aliens Act, Section 6(1).
353 Greece, Presidential Decree No. 140/91, at Article 118, Netherlands, Vc
2000 A6/5.1.5.
60
In the Netherlands, for example, unaccompanied
children between the ages of 12 and 16 years can only
be detained if they can be transferred to a detention
centre for youth within four days.356 In Luxembourg,
unaccompanied children shall be placed in detention
in an appropriate place.357 In Finland, unaccompanied
children may not be placed in a Police or Border Guard
detention facility, even in exceptional circumstances and
a representative of the social welfare authorities has to
be heard before detaining a child.358 In Bulgaria, special
areas designed for the needs of children have to be set up
within the detention facility.359
FRA Opinion
Several EU Member States currently prohibit the
detention of separated and/or unaccompanied
children, whereas others allow it only in very
exceptional circumstances. This is a good practice
that should be maintained and followed by other
states, also in light of the provision at Article 4.3
of the Return Directive which allows adopting
or maintaining more favourable provisions. It is
namely difficult to imagine a case in which the
detention of a separated or unaccompanied child
simply for securing his or her removal would comply
with the requirements of the Convention of the
Rights of the Child.
354 The Austrian Ministry of Interior reported the existence of an internal
ministerial decree prohibiting the detention of children under 14. See
Anfragebeantwortung 748/AB XXIII. GP, answer in response to questions
1 and 2. For Denmark, see Written replies by the government of Denmark
concerning the list of issues (CRC/C/Q/DNK/3) received by the Committee
on the Rights of the Child relating to the consideration of the third periodic
report of Denmark (CRC/C/129/Add.3), 18 August 2005 at page 55
according to which under part 69 of the Act on Administration of Justice
part a child younger than 15 can never be detained for more than 24
hours. For Latvia, see Immigration Law at Section 51.1.
355 See FORA Article 124.1 read in conjunction with Section 178.
356 Vc 2000 A6/5.1.5.
357 Immigration Law, Article 120.
358 Aliens Act, sections 122 and 123(5), as amended 581/2005 (in force
15.07.2005).
359 Law on Foreigners, Article 44.9.
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