Momentum is growing around the world to end child immigration detention. All major human rights experts now agree that immigration detention is a child rights violation. Meanwhile, more and more countries are passing laws that prohibit child immigration detention.
Like adults, children who cross borders are subject to migration rules and regulations. As a result, millions of children are affected by detention every year. Thousands of children are detained themselves, while others are impacted by the detention of their parents or guardians.
Immigration detention is known to have “undeniable immediate and long-term mental health impacts on asylum-seeking children and families.” Even very short periods of detention can compromise a child’s mental and physical wellbeing. The impacts can last a lifetime.
In light of this evidence, the UN Committee on the Rights of the Child (the Committee) reviewed the rights of children in the context of migration. The Committee made it clear that:
The detention of a child because 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.
The Committee also made it clear that the child’s best interests not to be detained extends to the entire family. As a result, States cannot detain children for the purpose of family unity.
It is within this context that more and more countries are prohibiting child immigration detention. The sections below present some examples of such laws; a more substantial review is available elsewhere.
Blanket prohibitions on child immigration detention
A number of countries have established a prohibition on immigration detention of all children below the age of 18, without restriction.
In Croatia, a minor can only be detained after being convicted of a criminal offence. There are therefore no legal provisions allowing for the detention of minors for reasons relating to migration status.
Ecuador’s Human Mobility Law prohibits detention of children and their parents or caregivers. Article 2 states:
At no time may children be detained for immigration infractions. When the best interests of the child requires that family unity be maintained, the obligation to protect personal freedom should be extended to the child’s parents or caregivers.
Ireland’s Immigration Act 1999 outlines the grounds for detention and deportation of non-nationals. Section 5 (4)(a) specifies that:
[detention pending deportation] shall not apply to a person who is under the age of 18 years.
Further, Ireland’s International Protection Act 2015 outlines grounds for detention of certain asylum applicants. However, Part 3, 20 (6) Act states that:
[detention of an asylum applicant] shall not apply to a person who has not attained the age of 18 years.
At no time will migrant children or adolescents, regardless of whether or not they are traveling with adults, be deprived of their freedom in Immigration Stations or in any other immigration detention centre.
Prohibitions for younger children
Some countries have laws that prohibit detention for a younger group of children.
The People’s Republic of China’s Exit and Entry Administration Law allows for the detention of foreigners. However, Article 61 establishes that:
[D]etention for investigation is not applicable to foreigners … [who] are under 16 years of age.
In Austria, minors are defined as children who have not yet reached the age of fourteen. Section 8, Article 76(1a) of the country’s Alien’s Police Act establishes that:
Minors shall not be held in detention pending deportation.
The Immigration Act of Taiwan was significantly amended in 2015 to temporarily suspend the detention sanction of an alien who falls under one of several circumstances, including children under 12 years old.
Prohibitions for unaccompanied or separated children
A number of countries only prohibit immigration detention for those children who are unaccompanied or separated from their families.
Amendment 3 of Israel’s Prevention of Infiltration Law establishes a number of grounds for release from on-arrival detention including if:
The infiltrator is a minor who is unaccompanied by his family members or a guardian.
The law also provides for release on ‘special humanitarian grounds’. An Administrative Court decision concluded that ‘special humanitarian grounds’ extend to accompanied children. As a result, all children have since been released from on-arrival detention.
Article 26(6) of Italy’s Legislative Decree no.25/2008 states that:
Unaccompanied minors may in no case be held at the [detention] facilities…
Prohibitions for children seeking asylum
Some countries have prohibited the detention of children who are awaiting an outcome on an application for international protection.
In Cyprus, Article 9ΣΤ(1) of the Refugee Law (6(I)/2000) prohibits the detention of minors who are seeking asylum. Although Cyprus law allows for the detention of children being deported from the country, since 2014 the government has had a policy not to detain children at all, and this has been observed.
Article 66 of Turkey’s Law on Foreigners and International Protection Law No. 6458 prohibits the detention of unaccompanied minors seeking international protection by mandating that they are placed in an appropriate accommodation facility, such as foster care.
The momentum is growing to end child detention. The Committee on the Rights of the Child and numerous human rights experts have made it clear that immigration detention is always a child rights violation. The next step is to ensure such protections are transposed into domestic law. A number of States have been proactive in prohibiting child immigration detention in law. It is only a matter of time until the rest of the world catches up.
Dr Robyn Sampson is Senior Advisor and Research Coordinator at the International Detention Coalition and Adjunct Research Fellow with Swinburne University of Technology. This post is an extract from a recent Briefing Paper Never in a child’s best interests: A review of laws that prohibit the detention of children.