Over the recent years, fleeing poverty, violence, persecution and war, the number of refugees and migrants trying to reach European shores has soared.
European countries have reacted to the challenges posed by migration by combining internal and external policies whose aim seem to focus on reducing the number of migrants and refugees entering Europe and increasing the number of people returned. However, this approach has drawn concerns over the risk that it undermines human rights standards and refugee protection.
One of those concerns is the use of detention in the context of migration for which there has been a visible increase in terms of infrastructure across Europe, with notable examples of rising detention capacity in the Mediterranean region. Moreover, there have been worrying developments: Hungary’s bill authorising automatic detention for asylum-seekers, the Belgian government’s intention to build a detention centre for families and the Polish government policy of forcing asylum-seekers back to unsafe Belarus in defiance of its duties as an EU member state.
There are therefore legitimate concerns over the risk that European countries may adopt policies which will further increase the use of detention for migrants, including for children who made up 32 percent of the total number of first time asylum applicants in European Union countries in 2016.
Yet, over the past few years, there has been a growing international consensus on the fact that children should not be detained for migration-related purposes and that alternatives need to be found so as to put an end to such practice which is harmful to their health and well-being.
“The detention of a child on the basis of their or their parent’s migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child.” – UN Convention on the Rights of the Child
“There are no circumstances in which the detention of a child for immigration purposes, whether unaccompanied or with family, could be in the child’s best interest.” – Council of Europe’s Commissioner for Human Rights
Detention for children in Europe: not such an exceptional measure
Three is an emerging widening gap between a growing international consensus on ending child immigration detention and EU law and national legislators. EU law puts some limitations on detention of child migrants, but does not prohibit it. And, while laws and policies are drafted in order to ensure that detention remains an exceptional measure for children, civil society organisations suggests that the reality is otherwise.
To give but a few examples: in Belgium, while the country has seemingly been able to limit the detention of children accompanied by family, the government’s late 2016 announcement to build a closed centre especially for families with children created concerns from civil society organisations which have led to the creation of a campaign “We do not detain a child. Full stop” bringing together 50 organisations against
In France, the annual report on administrative detention in France, published by six civil society organisations present in detention centres, details the systematic use of deprivation of liberty as a primary instrument of migration control. The report underlines that 2016 reached a record in terms of the number of children detained in spite of condemnations by the ECHR. 182 children were detained in mainland France and in one of the country’s overseas territories, Mayotte, the number goes up to a dramatic 4285 children detained.
In Hungary, unaccompanied children cannot be held in asylum detention. However, during 2016 attorneys working for the Hungarian Helsinki Committee found at least 35 cases when potentially under-aged persons were unlawfully held in detention. It was also reported that when unaccompanied children apply for asylum and are aged over 14, they are transferred to the closed transit facilities at the border with Serbia where they are deprived of liberty.
Alternatives exist but are underutilised
A 2015 study made an analysis of existing alternatives to detention practises in a selected number of EU countries (Austria, Belgium, Lithuania, Slovenia, Sweden and the United Kingdom). It has revealed that there are some good practices which show that it is possible to develop solutions outside detention which are functional, less costly and compliant with human rights. However, it has also shown that alternatives remains largely are underused and only a small number of individuals are submitted to them. Moreover, there are different interpretations of the concept of “alternatives to detention” which mean that it is not understood in the same way by everyone. This leads to situations where lighter forms of detention are considered as alternatives when they do not meet the level of protection and care a child should and has the right to receive.
In many countries, including across Europe, it is difficult to get an accurate picture of the number of migrants and refugees being held in detention. We do not know how many children are detained. Data is not easily available to the public, let alone disaggregated, and does not sufficiently take into account the gender dimension. Having comprehensive and comparable data is an important element on which stakeholders, especially decision makers, need to rely on in order to design and implement adequate policies and measures.
The main conclusion is that detention is never in the best interests of a child and it has detrimental impact on their health and well-being. While there is an international growing consensus on the need for alternatives to detaining children, European countries are continuing the practice. And yet, there are alternatives; some are not sufficiently used and others could be improved. This effort requires support for multiculturally trained staff and guardians and adequately equipped security, healthcare, psychological and educational services that are calibrated by gender-sensitive approaches.
The International Detention Coalition proposed a model “the 5 steps Child-Sensitive Community Assessment and Placement”. The model offers ways of avoiding detaining refugee, asylum seeker and irregular migrant children from the moment they come to the attention of the State, throughout the assessment of the status and through to the resolution of their cases. It takes the State’s interests to manage migration seriously, while at the same time recognizing that it is never in the best interests of children to be detained.
Without denying the lack of solidarity on the continent and the fact that some countries face difficult situations (Greece and Italy as first countries of reception; Germany, Italy, France, Hungary, Austria and Sweden as the ones with the most asylum applications), European countries need to work and cooperate with one another on prioritising children’s inherent dignity and fundamental rights above immigration enforcement. A child is a child and should be treated as such no matter from where he or she comes.