Exhaustive list of grounds for detention
4.4. Inappropriate use of
detention to protect the
child
A common argument to support migration detention of
unaccompanied children is that it protects children from
going missing or falling prey to people traffickers. For
example, in Greece, unaccompanied children are regularly held in police cells as a discretionary protective
measure pending transfer to a specialised accommodation facility. In the mainland as well as in the hotspots set up on the Greek islands to register and host
new arrivals, unaccompanied children are in some cases
deprived of their liberty, a measure imposed to prevent exploitation and avoid children going missing.151
National law provides that unaccompanied children
should not, as a rule, be detained, although it allows
detention of asylum-seeking children in very exceptional cases, as a last resort, to ensure that they are
safely referred to specialised accommodation facilities.
The child could be detained for up to 25 days and exceptionally (e.g. in cases of mass influx) for 20 more days.152
In practice, because accommodation for unaccompanied children is limited, children have been detained in
hotspots or police cells, in inadequate conditions, often
for a long time.153
EU Member States sometimes place child victims of
human trafficking, or other children at imminent risk, in
safe houses where freedom of movement is restricted.
This aims to reduce the risk of disappearances or child
abduction. In its handbook on guardianship,154 FRA
underlines that restrictions on the child’s freedom of
movement should be:
• proportionate;
• based on a risk assessment;
• always confirmed by judicial authorities.
151 FRA (2016), Opinion of the European Union Agency for
Fundamental Rights on fundamental rights in the ‘hotspots’
set up in Greece and Italy, Luxembourg, Publications Office.
152 Article 46 (10)(b) L 4375/2016.
153 See https://www.synigoros.gr/resources/dt-asynodeytoianilikoi-3032016.pdf.
154 FRA (2014), Guardianship for children deprived of parental
care – A handbook to reinforce guardianship systems to
cater for the specific needs of child victims of trafficking,
Luxembourg, Publications Office.
When a victim is placed in a safe house where exit and
entry is controlled, mitigating measures should ensure
that the child is not in a detention-like regime. Such
measures could include regular outings with the guardian, social workers or volunteers. The guardian should
have unimpeded access to a child hosted in a closed
facility and the child should have unimpeded access to
the guardian and to other services. Judicial authorities
should review measures restricting freedom of movements every month, to ensure that the placement is
absolutely necessary for the safety of the child and is
limited to the minimum time necessary.155
Conclusion
The ECHR and EU law list exhaustive but not identical
permissible grounds for detention, which apply to everyone regardless of age.
The right to liberty and security in Article 6 of the
Charter corresponds to the same right in Article 5 of
the ECHR. The meaning and scope of Article 6 of the
Charter must therefore not go below the standard of
protection of the ECHR, as interpreted by the ECtHR.
EU law may, however, provide more extensive protection (Article 52 of the Charter). The scope and content
of the Charter’s right to liberty and security, as shaped
by the ECtHR, thus represents a minimum threshold of
protection under EU law.
Most grounds for deprivation of liberty in secondary
EU law correspond to those in the ECHR, but detention
to protect public order under the Reception Conditions
Directive seems difficult to subsume under Article 5 (1)
of the ECHR. This can lead to diverging interpretations
regarding the compatibility of national legislations with
European law standards.
155 FRA (2014), Guardianship for children deprived of parental
care – A handbook to reinforce guardianship systems to
cater for the specific needs of child victims of trafficking,
Luxembourg, Publications Office, pp. 78-9.
45
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents