The Detention of Children in Member States’ Migration Control and Determination Processes

Directorate-General Internal Policies

Policy Department C

Citizens Rights and Constitutional Affairs

THE DETENTION OF CHILDREN IN MEMBER STATES’ MIGRATION CONTROL AND DETERMINATION PROCESSES

BRIEFING PAPER

This briefing paper addresses the use (and misuse) by Member States of detention of children, whether separated or with parents or other adults claiming responsibility for them, as a consequence of their own or their families’ claims to international protection, or as a consequence of entry into the European Union for other migration purposes. It considers current practice in the context inter aliaof Title IV of the EC Treaty, the European Charter of Fundamental Rights, EU asylum directives, Member States’ international protection and human rights obligations and domestic laws and policies. It offers a selective snapshot rather than a comprehensive overview. The note serves primarily to highlight serious concerns from many quarters that despite various directives, guidance and case law formulated by relevant international actors and the institutions of the EU, the use of detention measures against migrant and asylum-seeking children continues to increase. The authors of this briefing consider that such practices run counter to the European Commission’s stated priority strategy [1] for ensuring that the rights of the child are effectively promoted and protected in all aspects of the body politic of the European Union and its Members, in full accordance with the United Nations Convention on the Rights of Child.

IP/C/LIBE/FWC/2005-22/SC2

This note was requested by: the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs.

This paper is published in the following languages: EN, FR.

Authors: Syd Bolton, Legal and Policy Officer (Children), the Medical Foundation for the Care of Victims of Torture, (London, UK). Supervised by Professor Elspeth Guild (University of Nijmegen).

Acknowledgements and thanks are owed to Liz Fekete of the UK’s Institute of Race Relations for her advice and assistance, and to the Jesuit Refugee Service-Europe, without whose activities and reports so much of the information we have about state practice in this most invisible area would not be known.

Manuscript completed in 25 July 2006

Copies can be obtained through: Tel: 32105

Fax: 2832365

E-mail: japap@europarl.europa.eu

Information on DG Ipol publications: http://www.ipolnet.ep.parl.union.eu/ipolnet/cms

Brussels, European Parliament

The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.

DETENTION OF CHILDREN IN MEMBER STATES’ MIGRATION CONTROL AND DETERMINATION PROCESSES

Syd Bolton

PRIMARY OBLIGATIONS

All children should be treated as ‘Children First, Migrants Second’. A person claiming to be a child should be treated as such until shown to be otherwise.

Whilst not itself a state signatory, The European Union (and its institutions) has effectively accepted that it will work in accordance with the rights and obligations enshrined within the almost universally ratified United Nations Convention on the Rights of the Child (UNCRC). [2] Member States are bound by these obligations to the extent of their own ratifications, reservations and declarations and incorporation into domestic law and also to the extent that the European courts’ jurisprudence guides its interpretation in the domestic law and practice of all Member States. It is critically important to all decisions made about or which affect children, and in the context of detention it is worth re-stating some of the main rights and obligations. [3] All other instruments should be read in the context of these fundamental rights.

The Charter of Fundamental Rights of the European Union (CFREU) [4]proclaimed in December 2000,goes some way to enshrining the UNCRC’s ‘principle’ rights within its institutions and States and reiterates the primacy of the best interests of children. As the European Commission itself stated: [5] "It is worthwhile referring to [the Charter] given that it constitutes the expression, at the highest level, of a democratically established political consensus on what must today be considered as the catalogue of fundamental rights guaranteed by the Community legal order."Whilst not yet legally binding, the Court of First Instance has ruled that it confirms the existence of a right within the general principles of EC law. [6]

CFREU Art. 24 – The rights of the child:

1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.

2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.

[3. – omitted]

The Council Directive laying down Minimum Standards for Reception of Asylum Seekers [7] specifically provides for the special vulnerabilities of asylum-seeking children and minimum standards for arrangements for their welfare, treating the best interests of children as a primary consideration. It is directly applicable to domestic law and practice effective from February 2005 and requires states to make special arrangements for the accommodation of children to meet their needs and best interests. This does not equate to detention.

Committee of Ministers Recommendation Rec (2003) 5 [8] – Additional provisions for minors:

20. As a rule, minors should not be detained unless as a measure of last resort and for the shortest possible time.

21. Minors should not be separated from their parents against their will, nor from other adults responsible for them whether by law or custom.

22. If minors are detained, they must not be held under prison-like conditions. Every effort must be made to release them from detention as quickly as possible and place them in other accommodation. If this proves impossible, special arrangements must be made which are suitable for children and their families.

23. For unaccompanied minor asylum-seekers, alternative and non-custodial care arrangements, such as residential homes or foster placements, should be arranged and, where provided for by national legislation, legal guardians should be appointed, within the shortest possible time.

There is insufficient space within this briefing to set out the many other guidance documents and position papers of the institutions of the EU and United Nations which set out the way in which asylum-seeking children are to be treated. None of these advocate detention except as a last resort. A non-exhaustive list is provided in Annex A of this note.

CIRCUMSTANCES OF DETENTION

Although the UNCRC’s ‘best interests’ principle is incorporated into the Reception Directive as «a primary consideration», [9] nonetheless it appears that states seldom undertake anything approaching a best interests test before detaining children. Children are detained in a variety of situations. Little effort is made to distinguish trafficked or economically-moved children from those whose entry has been facilitated to flee persecution and to claim asylum. Detention may occur at the border on arrival or having come to the attention of the welfare authorities later on, in-country. Children are detained alone or with family members, pending consideration of their asylum claim, post refusal and pending expulsion. They are frequently defined and detained as adults. The ‘last resort’ principle appears to be anything but, with migration policing interests put well ahead of the child’s best interests and sensible, viable alternatives to detention ignored. Detention is often not subject to independent judicial scrutiny and extendable in effect without time limit. As a norm, migrant/refugee children do not have legal guardianship/representation in decisions affecting their welfare. As long as there is no central collection and analysis of data about migrant children in Europe it is impossible to quantify the extent of the problem but objective evidence [10] suggests that the «last resort» exhortation is routinely ignored. Children are, sadly, seen and treated firstly as migrants and only a distant second as children.

Detention as part of the refugee status determination process is an administrative measure which does not form part of the criminal system of states. This briefing is concerned only with administrative detention but recognises that all member states’ criminal codes contain specific offences of unlawful entry onto their territory and that there is a growing concern about the use of criminal prosecution and custodial sentencing of children for such ‘crimes of arrival’. [11]

States’ Practices

There is no universal norm across Member States. Law and practice are as varied as the number of states. It is too early yet to say whether or not the Reception Directive has had the effect of improving standards of care and support for children and to reduce the use of detention.

As the Committee of Ministers Recommendation Rec (2003)5 stresses, minors should not be detained except as a measure of last resort. In other words, there should be a very strong presumption against detention. Ordinarily it is very difficult to see how any decision to detain could satisfy the ’best interests’ requirements of the UNCRC. The numbers of children and the length of time they are held in detention should therefore always be minimal.

Nonetheless, Member States that publish statistics reveal high numbers of child detainees, [12] some detained as a matter of law, others routinely as a matter of practice. Children are more likely to be detained as family members but the numbers of separated children detained are more difficult to identify, as an unknown number enter detention due to a growing use by the state of age dispute mechanisms, some of which are ethically questionable, and as a consequence treat children as adults, denying them access to appropriate support and care, the wrong standards of claim determination and a much higher risk of detention and expulsion.

In the absence of reliable data, monitoring and inspection of individual states detention practice can only address what is seen or reported on the occasion of that limited exercise. The process must be one of continuous accountability.

The circumstances of ‘arrest’ and the conditions a child may face in detention, even assuming an ‘appropriate’ decision has been made, must still comply with minimum standards and basic human rights obligations, not least the right to procedural fairness, respect for private and family life and physical and moral integrity. In reality, detention procedures and conditions can fall severely short and be damaging to a child’s psychological, developmental and physical health and well-being, particularly in the absence of any statutory obligation to complete a pre-detention best interests and welfare assessment and an independent review mechanism both of which properly take into account the wishes and feelings of the child. This must also include a comprehensive assessment of the rehabilitation/recovery needs of any child who may be a direct, or indirect victim of torture, inhuman or degrading treatment in order to meet the obligations contained in Article 39 UNCRC.

Country practices vary from state to state but overall they paint a depressing picture of failures to protect and provide for the needs and best interests of children. The following examples provide simply a cross-section of practices and concerns and are not intended to single out any individual state for criticism.

Malta

‘Automatically’ detains, by virtue of its Refugees Act 2000, all asylum-seekers including children in families for periods of up to 18 months. As a matter of policy, it releases them after 12 months if it has not reached a decision. Refused claimants may be detained, pending removal well beyond that duration. It claims not to detain unaccompanied children but to house them separately (although no established guidelines or criteria for identifying children exist), and to prioritise family claims. Reports (Footnote JRS reports index) [13]though show that in practice it has taken several months of detention to identify vulnerable people – including 30 children in families detained for 3 months. No judicial review of detention exists and ECtHR has ruled on more than one occasion that there is a lack of remedy under Article 5(4) ECHR. There is little or no access to legal representation and no state funded legal aid. Conditions of detention fail to improve post-accession with a recent Amnesty International report finding that «some detention centres were severely overcrowded, with people housed in tents and provided with inadequate sanitary arrangements and diets. Some detainees, including children, had little access to exercise in the open air and no recreational facilities. Children also experienced delays in gaining access to education.» [14]

Lithuania

The European Council on Refugees and Exiles (ECRE) - Country Report 2004 on post accession Lithuania – reported [15] that:

The new Law on the Legal Status of Aliens introduced special provisions and guarantees to unaccompanied minor asylum seekers. The principle of ‘safe third country’ may not be applied to a minor who is unaccompanied by his parents or legal representatives while making a decision on the admittance of an asylum seeker to the territory. Article 114 of the Law on the Legal Status of Aliens provides that a minor can be detained in exceptional cases only. After an unaccompanied minor submits an application for asylum he must be accommodated at the Refugee Reception Centre if the guardian appointed to the minor does not desire otherwise (Article 79). Article 9.5 of the Order of the Minister of Internal Affairs of 15th November 2004 on the Procedure of Investigation of the Applications for Asylum, Adoption and Execution of Decisions establishes that during the interviews with unaccompanied minors, the guardian of the child and the child’s legal representative must be present. Applications of unaccompanied minors should be examined as soon as possible.

The same level of procedural protection does not apply to children in families and it is arguable that the Refugee Reception Centre is still a place of detention and therefore unaccompanied children are routinely detained rather than exceptionally.

France

French law permits fixed (but extendable) periods of detention for foreigners (including asylum claimants) in zones d’attente,i.e. transit zones at ports and airports and in «centres de retention administrative» subject to the judicial oversight of the Procureur de la Republique. Unlike children in families, unaccompanied children should not be placed in these detention centres but may be held in transit zones. It is alleged that children have been held in these zones for several months. In February 2005, allegations of violent abuse and excessive force used on detainees were documented at the ZAPI 3 holding centre at Roissy outside Paris, which included injuries to children and pregnant women. [16]Anne de Loisy, a Red Cross medic, catalogued her findings in a recent book. [17] The European Council for Refugees and Exiles (ECRE) publication ECRAN Weekly Updateof 16 February 2006 [18] summarised the report of Alvaro Gil-Robles, Commissioner for Human Rights of the Council of Europe, on the respect for human rights in France presented to the Committee of Ministers on 15 February 2006. It lists grave shortcomings regarding prison conditions, the treatment of children in detention centres, asylum and immigration policy, including expulsion procedures.

In relation to the treatment of children, the report states that the «French authorities appear to completely underestimate the legal and humanitarian problems posed by the presence of children in holding centres». In relation to access to the asylum procedure, the report states that asylum applications submitted by foreigners in waiting zones are not systematically registered and processed… Detention centres for those waiting expulsion were said to be of varying quality and the one in the Palais de Justice in Paris was said to be «catastrophic and shameful». Annex B to this briefing contains more detailed extracts from that report.

Spain

Amnesty International’s 2006 report [19] on human rights in Spain found a catalogue of unacceptable conditions and ill-treatment of minors whilst in detention and stated that:-

Concerns about the conditions in detention centres for minors were raised in a report of the national Ombudsperson. The decrepit and unhealthy state of many centres did not comply with national law and regulations on the imprisonment of children. The Educational Centre for Child Offenders in Melilla was recommended for immediate closure in the report. It had a dilapidated structure, small and poorly lit cells, and only one small outdoor courtyard. Conditions in child detention facilities around Madrid were little better. They were overcrowded, had poor sanitary facilities and lacked basic furniture such as beds and tables. In April the Ombudsperson for the Autonomous Community of the Canary Islands condemned "institutional ill-treatment" of minors in the Canary Islands. In June the first assistant to the national Ombudsperson requested the immediate closure of the detention centre in Gáldar on Gran Canaria, where conditions were particularly unsanitary. The same recommendation was made by the Council of Europe’s Commissioner for Human Rights.

United Kingdom

The UK government continues to assert that detention, especially of families with children is used «sparingly and for the shortest period necessary… is subject to frequent and vigorous review»,. [20] and that no unaccompanied children should be detained. However, despite these assertions and explicit and strongly worded guidance to immigration staff against the detention of unaccompanied children, [21] children in families and unaccompanied children are still being detained in large numbers. There is no automatic judicial oversight of child detention and the 28-day Ministerial review is criticised by children’s organisations as being too late and not sufficiently independent to amount to a safeguard against inappropriate detention. A recent study by the UK offices of the NGO Save the Children, exploring the impact of detention on children and alternative proposals, [22] estimates around 2,000 children per year are detained with their families and the length of detention varied from less than 7 days to 268 days. [23] Children are also detained whose age has been disputed, for lack of an expeditious and/or properly conducted age assessment. The number of claimants whose age is disputed annually in the UK is around 2,000 to 2,500 on UK government figures. [24] These figures do not breakdown the numbers who were detained as adults and subsequently found to be children. Anecdotal evidence from legal representatives and refugee community organisations suggest that children as young as 14 are still being detained and their refugee claims determined (contrary to UNHCR guidance) as if they were adults.

Conditions of detention vary but Her Majesty’s Inspector of Prisons has observed, on planned inspections of immigration detention facilities, including short-term holding facilities that despite some improvements to conditions for detained children, «formal child protection procedures were lacking. There were inadequate initial and ongoing welfare and care assessments for children. Several children were causes of concern and one should have been identified as failing to thrive. Links with local social services were poor and child protection protocols had not been agreed» and «A family of eight, including four children between two and 16, had been in detention for nearly a month. The 16-year old was due to sit his [exams] within weeks. In another case, a woman and her three children, aged nine to 16, had been detained more than a month. On the day they were detained the 16-year old was due to start her preliminary examinations... She had brought homework papers with her to detention. She was distressed. Both families had been living in the UK for some years. The documents relating to them did not show evidence of appropriate review of the effect of continuing detention on these children.» [25]

CONCLUSIONS AND RECOMMENDATIONS

It is difficult to arrive at any positive conclusions on an overview of current practice towards asylum-seeking children, whose protection and best interests all too often come not just second but a long distance from many States’ perception that their overriding duty is to maintain their borders against irregular migration.

Many recommendations have been made by experts and others working in this field and those with international and domestic responsibility to monitor children’s rights and inspect against those standards, but children’s rights continue to be a very poor relation. There is now, with priority placed on the effective implementation of the UNCRC across all areas of EU law and practice, a real opportunity to improve those practices and to insist on a child-focused, child-centred status determination process. The first element of this must be real accountability of States for their actions. The second is for the EU and its institutions to provide the impetus to ensure that all activities of States place the child’s best interests first.

Therefore it is recommended:

1. Migrant children’s rights should be monitored by the Fundamental Rights Agency (FRA) as a basic element of EU policy to respect and promote fundamental rights. [26]

2. Detailed statistics on the detention of migrant children should be kept by all member states on a mandatory basis and reported annually to this Committee and the FRA. These statistics should be used to benchmark States’ efforts to comply with children’s rights.

3. A report to be produced annually by this committee documenting by State, practices in respect of the detention of children and recommendations requiring remedy within a specified period.

4. Access to physical and psychological health care in all places of detention, however short the period of detention, to include prompt access to child health and welfare professionals on request.

5. Access to legal representation for all children in their own right, to effective guardianship arrangements that enable the wishes and feelings of the child to be heard and their best interests taken properly into account before any decision is made to detain.

6. Automatic and timely right of independent judicial review for all migrant children about any decision to detain them or their family.

7. All States should withdraw such reservations against the UNCRC as seek to permit derogation from its fundamental principles and obligations.

8. Genuine adherence by all states to the principle of ‘detention only as a last resort’

ANNEX A

ADDITIONAL GUIDANCE AND RECOMMENDATIONS RELEVANT TO THE DETENTION OF CHILDREN

Twenty Guidelines of the Committee of Ministers of the Council of Europe on Forced Return

– especially Guideline 11 – September 2005

Council of Europe Parliamentary Assembly Recommendation 1703 (2005)1 on the Protection and assistance for separated children seeking asylum

 especially recommendation (k)

(Assembly debate on 28 April 2005 (15th Sitting) (see Doc. 10477, report of the Committee on Migration, Refugees and Population, rapporteur: Mr van Thijn). Text adopted by the Assembly on 28 April 2005 (15th Sitting).

Recommendation N° 1327 (1997) of the Parliamentary Assembly of the Council of Europe on the protection and reinforcement of the human rights of refugees and asylum seekers in Europe

 especially recommendation (h)

(Assembly debate on 24 April 1997 (14th Sitting) (see Doc. 7783, report of the Committee on Migration, Refugees and Demography, rapporteur: Mrs Brasseur).Text adopted by the Assembly on 24 April 1997 (14th Sitting).

Revised UNHCR Guidelines of 1999 on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers

http://www.unhcr.org.au/pdfs/detentionguidelines.pdf

UNHCR: "Guidelines on Policies and Procedures in dealing with Unaccompanied Minors Seeking Asylum" (1997).

http://www.unhcr.org/cgi-bin/texis/vtx/publ/opendoc.pdf?tbl=PUBL&id=3d4f91cf4

Separated Children in Europe Programme (SCEP) Statement of Good Practice 2004 -

http://www.unhcr.org/cgi-bin/texis/vtx/home/opendoc.pdf?tbl=RSDLEGAL&id=415450694

COMMITTEE ON THE RIGHTS OF THE CHILD CRC/GC/2005/6 39TH Session 3 June 2005 GENERAL COMMENT NO. 6 (2005)

Treatment of unaccompanied and separated children outside their country of origin

http://www.asyl.at/umf/ber/General_Comment_6_1.pdf

ANNEX B – Extract from:-

REPORT BY MR ALVARO GIL-ROBLES, COMMISSIONER FOR HUMAN RIGHTS, ON THE EFFECTIVE RESPECTFOR HUMAN RIGHTS IN FRANCE FOLLOWING HIS VISIT FROM 5 TO 21 SEPTEMBER 2005 [27]

e. The presence of children in administrative holding centres

254. The Senate…considers that the presence of minors in holding centres is becoming standard practice

255. Placing children in holding centres is contrary to the United Nations Convention on the Rights of the Child and to French law, which provides that under-age foreigners cannot be removed to the border…Yet a legal vacuum makes it possible to place children in CRAs and deport them, on the grounds of concern not to separate them from their families. The French authorities nevertheless appear to completely underestimate the legal and humanitarian problems posed by the presence of children in holding centres.

256. There are unfortunately all too many cases of children placed there. The Ombudsperson for Children, Ms Claude Brisset, told me about very young Roma children placed with their mothers in the Bobigny holding centre. This centre is admittedly equipped with special beds and changing mats, but provides neither nappies nor suitable food. The supplies needed for the care of infants had to be brought in by volunteers from outside. As no provision is made for it in the rules and regulations, each centre manages the presence of children according to its own resources, which results in extremely difficult situations.

257. Conditions in the CRAs are precarious and placing children there poses obvious security problems. Very few centres are equipped to receive them. In any event, no children should be detained on the grounds that their parents do not have the necessary papers to remain in France, in places marked by overcrowding, dilapidation, promiscuity and very strong tensions. …

258. Another practice causes me the greatest concern: the fact that children are «stopped and questioned» in the presence of one of their parents, or even in their absence. I heard several consistent accounts of children being taken from school or from their homes by police officers and taken to the police station to join their parents or, worse still, to compel their parents, who were under a deportation order, to go there. This illegal practice is also traumatic for children and proves that no distinction is made between minors and adults. Children are victims of the criminalisation of foreigners in the same way as adults, and their rights under the United Nations Convention on the Rights of the Child are not respected. I call on the French authorities to bring detention practices into line with French legislation and with the instruments France has signed.

ANNEX C

United Nations Convention on the Rights of the Child

Summary of Relevant Key Obligations

UNCRC Article 2: Non-discrimination

All rights in the Convention apply to all children without exception, and the State has an obligation to protect children from any form of discrimination.

Article 3: Best interests of the child

All actions concerning the child should take full account of his or her best interests. The State is to provide adequate care when parents or others with responsibility fail to do so.

Article 4: Implementation of rights

The State has an obligation to translate the rights of the Convention into reality.

Article 12: The child’s opinion

The child has the right to express an opinion, and to have that opinion taken into account, in any matter or procedure affecting the child, in accordance with his or her age and maturity.

Article 19: Protection from abuse and neglect

The State has an obligation to protect children from all forms of maltreatment perpetrated by parents or others responsible for their care, and to undertake preventative and treatment programmes in this regard.

Article 20: Protection of children without families

The State has an obligation to provide special protection for children deprived of their family environment and to ensure that appropriate alternative family care or institutional placement is made available to them, taking into account the child’s cultural background.

Article 22: Refugee children

Special protection is to be granted to children who are refugees or seeking refugee status, and the State has an obligation to co-operate with competent organisations providing such protection and assistance.

Article 37: Torture and deprivation of liberty

The State has an obligation to ensure that no child is subject to torture, cruel, inhumane or degrading treatment or punishment, capital punishment, life imprisonment, and unlawful arrest or deprivation of liberty. The child who is deprived of liberty must be treated with humanity and respect and in a manner that is appropriate to his or her age. Children who are detained should be separated from adults, have the right to contact with family, and access to legal and other assistance.

Article 39: Rehabilitative care

The State has an obligation to take all appropriate measures to promote the physical and psychological recovery and social integration of children who have been victims of any form of neglect, exploitation or abuse, torture or degrading treatment or of armed conflict

The Detention of Children in Member States’ Migration Control and Determination Processes