1. Introduction
1. Every day, all around the world, millions of children
are detained simply because they do not have the right immigration
documents. Immigration detention of children is also a growing phenomenon
in Council of Europe member States. The use of immigration detention
has been growing over the past twenty years as governments strive
to control migrant entry and settlement.
2. Children leave their homeland due to a variety of reasons.
Some children leave with their families, but some also flee alone,
due to armed conflict in their home country, because their human
rights are being violated or simply in search of a better life.
Accompanied or unaccompanied, all children travelling without official documents,
whether seeking asylum or as refugees or irregular migrants, are
at risk of being detained.
3. Despite some improvements in legislation and practice in a
number of European countries, hundreds of immigrant children still
end up in detention. Accurate detention statistics are difficult
to obtain, particularly relating to the detention of children; however,
the rising trend is confirmed by United Nations bodies, as well
as non-governmental organisations (NGOs), such as the International
Detention Coalition (IDC), one of the leading organisations in the
field.
4. The United Nations Committee on the Rights of the Child has
called on States to “expeditiously and completely cease the detention
of children on the basis of their immigration status”
as detention constitutes a violation
of the rights of a child. The Committee has also urged States to
“adopt alternatives to detention that fulfil the best interests
of the child”.
Despite these unequivocal calls,
the immigration detention of children continues to be a real and
serious concern among Council of Europe member States.
5. In the present report, I argue that children are first and
foremost children and should never be detained for immigration purposes.
The detention of children is a denial of their fundamental right
to liberty. In addition to arguing against children’s detention
from a human rights perspective, I offer an insight into the cost
benefits of alternatives to detention and outline some of these
alternative models to promote and facilitate their use throughout
the Council of Europe member States.
1.1. Available statistics
6. As indicated in the submission of PICUM (Platform
for International Cooperation on Undocumented Migrants)
to the United Nations Committee
on the Protection of the Rights of all Migrant Workers and Members of
their Families, the data on undocumented migrant children remains
particularly limited. For dependent migrant children, this is partly
due to the fact that children’s movements are often not recorded
separately from those of their parents.
The
Population Division of the United Nations Department of Economic
and Social Affairs reports that globally, 16% of migrants are under
the age of 20.
In Europe, Eurostat figures show
that 41 455 of migrants apprehended in Europe in 2011 were children.
This figure included 16 250 children below the age of 14 and 25 205
between the ages of 14 and 17.
7. The Parliamentary Assembly has also highlighted the difficulty
of obtaining child detention statistics. In 2011, Mr Pedro Agramunt,
the rapporteur of the Committee on Migration, Refugees and Population,
stated in his report that he was “at a loss to estimate the number
of undocumented migrant children in Europe”.
However, some national
estimates on undocumented children in Europe do exist, showing the
large magnitude of the phenomenon. The Clandestino project estimated
that there were between 44 000 and 144 000 undocumented children
born in the United Kingdom out of a total of 417 000-863 000 undocumented
migrants. Following the data collated by Clandestino, the COMPAS
research project at the University of Oxford put forth an estimate
of 120 000 undocumented children in the United Kingdom in 2011,
of which over 85 000 were thought to be born there.
According
to a study conducted by the Swiss Monitoring Office for Asylum and Foreigners’
Law, children make up at least 10% of undocumented migrants in Switzerland.
1.2. Negative impact
of detention on children
8. Detention has severe negative short- and long-term
effects on children’s physical and mental health and is always contrary
to the best interests of the child, as defined in the United Nations
Convention on the Rights of the Child. While detention is a traumatic
experience in general, children are particularly vulnerable to the negative
effects of detention and can be severely traumatised. Research indicates
that even short periods of detention negatively impact children’s
cognitive and emotional development; at times such dire consequences can
cause lifelong trauma and developmental challenges for children.
Also, there is a high risk of detained children being subjected
to different forms of violence and/or being deprived of the right
of access to education and health care.
1.3. International and
European legal protection of migrants against detention
9. In its Resolution 63/184, the United Nations General
Assembly called on States “to respect the human rights and the inherent
dignity of migrants and to put an end to arbitrary arrest and detention”.
It called for alternatives to detention to be implemented and for
periods of detention to be reviewed. It also welcomed practices
among States aimed at reducing the detention of irregular migrants.
In 2010, the General Assembly adopted a Resolution on the protection
of migrants in which it repeated its calls to reduce the detention
of unauthorised migrants. In October 2013, it held the second High-Level
Dialogue on International Migration and Development, where the Secretary
General stated: “We need to create more channels for safe and orderly migration
and to seek alternatives to the administrative detention of migrants.”
10. In 2009, the United Nations Human Rights Council held a special
panel discussion devoted to the human rights of migrants in detention
due to “human rights concerns related to the recourse to detention
of migrants and the duration and conditions of their detention”.
The Council further recognised the problem of immigration detention
in the resolution on the human rights of migrants. This resolution
calls on States to “put an end to arbitrary arrest and detention
and ... to adopt, where applicable, alternative measures to detention”.
11. In September 2009, the United Nations High Commissioner for
Human Rights remarked that the plight of “migrants, and particularly
migrants in an irregular situation, is one of today’s most critical
human rights challenges”. More recently, the High Commissioner called
on States to “explore effective alternatives to immigration detention,
particularly for children and other vulnerable groups of migrants”.
12. The Parliamentary Assembly has condemned the detention of
child migrants, in particular unaccompanied minors.
Resolution 1707 (2010) on detention of asylum seekers and irregular migrants
in Europe unequivocally states that “unaccompanied minors should
never be detained”. The European Court of Human Rights has also
delivered judgments on the inadmissibility of the detention of children
in a number of cases
and
has argued for alternative care arrangements respecting the best
interest of the child. The European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment (CPT) considers
that every effort should be made to avoid resorting to the deprivation
of liberty of an irregular migrant who is a child.
1.4. Reasons why children
are falling through the gaps
13. Even though in most member States alternative care
arrangements do exist, particularly for unaccompanied migrant children,
member States still resort to detention in too many instances. Children
are detained for health and security screening, and for identification
and status determination purposes. Some children are incarcerated
in facilities exclusively for minors, but others are detained with
unrelated adults. In some member States, children end up in detention
facilities which are totally unsuitable for catering to their needs.
14. At times, States detain children inadvertently, due to difficulties
associated with age determination. All too often, however, age-assessment
procedures are used for the benefit of the State seeking to justify detention.
Despite the existing standard that persons who claim to be juveniles
should be treated as such until proven otherwise, unless the claim
is manifestly unfounded, a number of States still detain such persons
in institutions for adults. Age-determination procedures, which
should be applied as a measure of last resort, are often delayed
for undue reasons.
15. There is also a big risk that the age-assessment procedure
might negatively affect the dignity of a person subjected to it,
unless the assessment procedure is conducted by interdisciplinary
(namely not solely medical) methods with respect for the individual’s
dignity, and based on the informed consent of said individual. The methods
and the persons conducting the assessment must be adapted to the
person’s age, gender and culture.
2. Alternatives
to detention: policy, legislation and practice
16. States use a wide range of reasons to justify the
detention of irregular migrants. At the same time, they have an
obligation to establish presumption in favour of liberty and develop
alternatives to detention, while applying non-custodial and less
restrictive measures.
2.1. Policy
17. Despite the growth in policies of containment and
control, government interests in alternatives to detention have
recently increased as well. Alternatives to detention are seen as
a way to achieve effective migration management, while protecting
the rights and dignity of migrants. More governments are taking
steps to explore and implement alternatives ranging from scoping
studies and small-scale pilot projects to systemic policy developments
and systemic change.
2.2. Legislation
18. Efforts to reduce child detention in Europe have
been reflected in the introduction of the alternatives to detention
in the legislation of the Council of Europe member States and the
adoption of new policies.
19. A number of member States made changes to their legislation
in 2012. More specifically, Croatia introduced several alternatives
to detention in its national legislation, namely the duty to surrender
documents, to deposit sureties, to have a fixed address and to report
to the authorities regularly.
At
the end of 2011, Cyprus amended its legislation as well and created
the possibility to apply alternatives, without however defining
the type of alternatives available.
Slovakia’s
new Law on Residence of Foreigners which came into force in January
2012 also introduced alternative measures; under the new law, detention
with designated residence and the possibility of financial guarantees
can be applied.
2.3. Practice
20. Malta is the only remaining European Union member
State allowing the application of alternatives only when release
is foreseen.
Non-application
of the alternatives in practice remains a serious matter of concern as
many States resort more often to detention rather than to the different
alternatives available.
21. European and non-European countries have developed different
practices that allow irregular migrant children to remain in the
community with a certain freedom of movement. This period lasts
until their migration status is resolved or their removal takes
place. Alternatives to detention, which reduce the application of custodial
measures, include a wide set of alternatives such as the duty to
report regularly to the police, residence restrictions and counselling,
the duty to surrender documents, sureties/bail, and electronic monitoring.
22. Some States have opted for different models developed by leading
organisations in the field such as the IDC, more specifically the
Community Assessment and Placement Model (CAP). This model is built
on a few principles, which have to be followed by the implementing
authorities:
- the presumption
that detention is not necessary;
- screening and assessing the individual case;
- assessing the community setting;
- applying conditions in the community if necessary;
- detention only as a last resort in exceptional cases.
23. A few States like Australia, Argentina, Canada, Hungary, Hong
Kong, New Zealand, the Philippines, Spain, Sweden the United Kingdom,
the United States and Venezuela have started to apply some of these principles
in practice and are consequently bringing down the rates of migration
detention.
24. Despite significant changes in legislation and attempts to
change practice, the detention of migrant children still remains
a matter of serious concern in the majority of member States. While
a few States approach detention as a measure of last resort and
in most cases opt for alternatives, others still resort to detention
as a routine practice. As a result, children end up behind bars
in various institutions including police facilities and special
holding centres, which do not cater at all to their needs and violate
their fundamental rights.
3. Why alternatives?
25. The research commissioned by the International Detention
Coalition (IDC) identified a number of benefits that governments
receive when resorting to alternatives and avoiding detention:
- they maintain high rates of
compliance;
- they cost less than detention;
- they reduce wrongful detention and litigation;
- they reduce overcrowding in detention centres;
- they protect and fulfil human rights;
- they improve client health and welfare;
- they increase voluntary returns and departures.
3.1. Detention is not
an effective deterrent
26. There is no doubt that dealing with irregular migration
is an everyday issue of governance. The evidence available and statements
made by governments once again prove that a policy of detention
is not effective in deterring asylum seekers, refugees and irregular
migrants. Despite increasingly tough detention policies being introduced
over the past twenty years, the number of irregular arrivals has
not decreased.
27. Several studies have been undertaken to establish which factors
most impact the choice of the destination of asylum seekers and
irregular migrants. According to numerous research done in this
field, the principal aim of asylum seekers and refugees is to reach
a place of safety.
Asylum seekers have a very limited
understanding of the migration policies of destination countries
before arrival and are often reliant on people smugglers to choose
their destination. Rather than being influenced primarily by immigration
policies such as detention, most refugees choose destinations where
they will be reunited with family or friends, or where they believe
they will be in a safe, tolerant and democratic society.
3.2. Cost reduction
28. It is incontestable that with effective laws and
policies, clear systems and good implementation, managing asylum
seekers, refugees and irregular migrants can be achieved in the
community in most instances. By learning to screen and assess the
case of each person subject to or at risk of detention and introducing
appropriate support and conditions into the community as needed,
authorities can learn to manage people in the community in the majority
of cases without the financial and human cost that detention incurs.
29. The costs of detention and the number of migrants who might
be eligible to be detained are just too great. Research commissioned
by the IDC shows that cost-effective and reliable alternatives to
detention are currently used in a variety of settings and have been
found to benefit a range of stakeholders affected by this area of
policy.
30. A few countries have managed to significantly cut their migrant-related
costs through changes in their policy and practice. Significantly
reducing the number of detentions and the introduction of individual
case management tools and community placement enabled the United
States, Canada and Australia to reduce their expenditures by 60%-90%,
compared to their spending on detained migrants.
3.3. High rates of compliance
31. It is evident that the benefits gained through the
application of alternatives to detention are not only limited to
cost savings. According to available data, the compliance rates
are high as well and only a very small percentage of migrants and
asylum seekers violate the conditions. A recent study collating
evidence from 13 programmes found compliance rates ranged between
80% and 99.9%. For instance, Hong Kong achieves a 97% compliance
rate with asylum seekers or torture claimants in the community,
and in Belgium, a pilot programme working with families facing removal
had an 82% compliance rate. IDC research found asylum seekers and
irregular migrants rarely abscond while awaiting the outcome of
a status determination or other lawful process. They are better
able to comply with liberty or release conditions, or a negative
final decision if they can meet their basic needs in the community,
if they have been through a fair and efficient determination process,
if they have been kept informed throughout the process, including
receiving legal advice, and have also been advised on all options
to remain in the country legally and, if need be, supported to consider sustainable
avenues of departure.
3.4. Better health and
welfare conditions
32. The third benefit is the promotion of health and
well-being of migrants, both children and adults. There are several
reasons to believe that alternatives to detention promote better
health and well-being outcomes when compared with immigration detention.
It is obvious that all people awaiting an immigration outcome can experience
stress and anxiety associated with uncertainty about their future,
but
the state of the health, both mental and physical of people who
are detained is much poorer than that of people who have never been
in detention.
3.5. Combined benefits
of alternatives
33. It is obvious that if the States want to manage migration
successfully, minimise risks and significantly cut costs and save
on resources, they need to opt for alternatives and stop detaining
migrants. It would appear that when detention is avoided, the chance
of migrants absconding is rather low, and the chances of keeping them
in proper health and ensuring their well-being are much higher.
In addition, the government manages to better adhere to its international
and local human rights commitments, avoids public criticism and
provides an example of good practice to other States.
34. Despite numerous studies and recommendations produced by international
organisations, human rights groups and special rapporteurs, there
is still huge room for action to achieve the goal and bring detention
rates of children down. It is evident that much more has to be done
to persuade governments about the benefits of alternatives and negative
effects originating from any type of detention. Many more resources
are required to promote reforms and to train civil servants involved
in the process in the best practices to manage the migration-related
problems. Training should target migration services, the police,
the judiciary and the prosecution authorities, as well as social
services dealing with the issue.
4. Policy and practice
of the member States
4.1. Positive practice
35. Some member States have stopped the detention of
children, including unaccompanied minors. They are either not detained
or there is an alternative legal provision or practice in place
to enable them to be released (Belgium, Denmark, France, Hungary,
Ireland, Italy, the Netherlands and the United Kingdom).
36. Austria, Germany, Denmark, the Netherlands, Slovenia and the
United Kingdom have also opted for a presumption against detention
in law, policy or practice. Presumption against detention gains
effect when established in law. This presumption is strengthened
when alternatives to detention are also established in legal acts.
The effectiveness of such laws is dependent upon their proper implementation.
Those laws might also include mechanisms to monitor the use of alternatives
and ensure that unnecessary restrictions are avoided.
37. Several States are taking decisive steps to avoid detention
and establish special shelters or launch special, targeted projects
to enforce alternatives. Those States are setting proper standards
and promoting best practice in the region. These approaches are
certainly not uniform and each model has its strengths and weaknesses,
though all of them have a few common elements:
- detention is not practiced;
- costs are significantly reduced;
- migrants are in better health and their well-being is
ensured;
- rates of compliance are still high.
38. Hungary prohibited the detention of migrant children
and, with the assistance of local
NGOs, established a shelter for unaccompanied children. The Netherlands
is piloting four alternatives to detention. One of the programmes
works with migrants who are obliged to leave the country.
In
Sweden, asylum seekers are registered upon arrival and after being
issued an identity card and having spent about a week in transit
they are moved into a reception programme. The authorities accommodate
those who do not have their own funds to cover accommodation costs.
As a rule, they are placed in a private apartment rented for them
by the government. These migrant children are receiving the same
medical care as Swedish children. Migrants are assigned a caseworker;
they can receive free legal aid and participate in special courses
of the Swedish language. They receive a daily allowance and in some
cases they are even allowed to work.
Belgium
has developed policies not to detain children. The project works
directly with migrant families and accommodates them in designated
apartment buildings. In Spain, migrants who enter the refugee determination
process can be housed in an open reception centre only if they cannot
afford private accommodation. The government manages some open centres
and several of these are under the control of non-governmental organisations. The
capacity of these centres is rather limited; therefore the priority
is given to vulnerable individuals including families with children.
Residents are assigned a social worker that assists them with their
case and access to education, health-care and other social systems
of the country.
4.2. Issues of concern
39. Regrettably, the introduction of alternatives to
detention in national laws is not itself a prerequisite for the application
of the alternatives in practice. As mentioned above, most of the
member States do not produce proper statistics on alternatives to
detention, which makes it rather difficult to assess the levels
of their application.
40. Available statistics from nine member States indicate that
some States make regular use of alternatives (Austria, Czech Republic
and Romania), while this does not appear to be the case in Bulgaria,
Croatia, Latvia, Lithuania, Slovakia and Slovenia.
In
those countries, the authorities resort to detention of migrants
in the majority of cases.
41. Italian law does not prohibit the detention of children accompanied
by parents in detention centres for migrants, but the detention
of unaccompanied children in those centres is prohibited.
In Poland, children are detained
with their parent(s), usually in separate family units within the
detention centres.
The
Aliens’ Law of Lithuania provides that an alien under the age of
18 may be detained only in extreme cases, taking into consideration
the alien’s best interests.
The Aliens’
Law provides a list of alternatives which can be applied when the
alien’s identity has been established and he or she does not constitute
a threat to national security and public policy, and provides assistance
to the court in determining his/her status in Lithuania.
42. The British Government pledged to end the detention of children
for immigration purposes by May 2011. However, a Freedom of Information
request by the Children’s Society revealed that in the four-month
period between May and August 2011, almost 700 children were detained
in the United Kingdom. The Children’s Society also found that the
United Kingdom Home Office is not sufficiently monitoring these
cases, as they are not collecting information on the length of the
detention of these children or why they were detained in the first place.
43. Furthermore, the government proposed an alternative to detention:
“pre-deportation accommodation”, which also remains highly contested.
Families who refuse to leave the United Kingdom may be held in “pre-departure
accommodation” for up to 72 hours, or in “exceptional circumstances”,
up to a week. The government has assured that the centre, a converted
special needs school near Gatwick, will be family-friendly and only used
as a last resort, as advised by an Independent Family Returns Panel,
and will take into account the welfare of children. However, families
will not be free to come and go, and the centre will have 24-hour
security and a 2.3 meter high perimeter fence. Thus, the “pre-departure
accommodation” retains many of the defining features of detention
centres, and PICUM and many civil society organisations are concerned
that it will still have significant negative effects on children.
44. Greece continues to receive a large number of migrants each
year, but the system of reception is poorly organised. Even though
detention should be applied only as a measure of last resort; all
migrants, including accompanied and unaccompanied children picked
up by the Greek police force are still routinely detained for up
to a few months.
45. It is evident that in numerous member States, the law provides
possibilities to apply alternatives, but for various reasons, detention
is still practised, and in some States is applied more often than
alternatives. A change of attitude and the allocation of resources
and trained personnel is required to achieve positive results. States
should develop effective systems of alternatives, start producing
proper nationwide statistics, and train their officials in the application
of alternatives to detention. Officials in charge of the process
should be encouraged to apply alternatives and avoid the detention
of children.
5. Concluding remarks
and recommendations
46. There is compelling evidence that immigration detention
of children has a detrimental impact on their mental and physical
health. The detention of children violates their rights, and deprives
them of access to general education and proper health care. The
impact of detention on children is similar to its effect on adults. However,
because of children’s particular vulnerabilities, detention may
cause additional problems for their developmental and physical health.
The detention environment itself impacts on children’s development
and psychosocial health. The prison-like environment, the lack of
freedom and the constant surveillance and control is confusing and
intimidating.
47. Statistics show that the situation varies from country to
country and no uniform approach has been developed so far. While
a few States are taking measures to avoid the unnecessary detention
of children and opt for alternatives, the majority of States still
resort to detention while applying different policies and using specialised
institutions.
48. The laws of most member States prohibit the detention of children
and provide the possibility of applying alternatives. Nevertheless,
the majority of these States are not applying the alternatives in
practice or alternatives are used only rarely. In some States, deficient
legislation is supplemented with wrong policies and practice. The
situation requires concerted efforts from the State authorities
to put an end to the detention of migrant children and, based on
the practices described in this report, start developing effective
models for the application of alternatives to detention.