المنتدى العالمي المعني بالهجرة والتنمية – أيام المجتمع المدني، اجتماع جانبي بشأن احتجاز الأطفال، البيان الذي أدلى به مقرر الأمم المتحدة الخاص المعني بحقوق الإنسان للمهاجرين، فرانسوا كريبو

Stockholm, 12 May 2014

The detention of migrants is one of the priorities in my work as the UN Special Rapporteur on the human rights of migrants. This is why my first thematic report as a Special Rapporteur, which I presented to the Human Rights Council in June 2012 , dealt with the detention of migrants in an irregular situation, and alternatives to detention. A subheading of that report is dedicated to the detention of migrant children.

I will first provide an overview of the legal framework for detention of migrants in an irregular situation, and thereafter the additional rules that apply specifically to children.

The main rule, which follows from, inter alia, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, is the right to liberty and security of person. This applies to everyone subject to the jurisdiction of a State, and to all forms of detention, including for immigration control purposes. In order not to violate the right to liberty and security of person, and to protect against arbitrariness, detention of migrants must be prescribed by law, and must be necessary, reasonable and proportional to the objectives to be achieved.

Legitimate objectives for detention are the same for migrants as they are for anyone else: when someone presents a risk of absconding from future legal proceedings or administrative processes or when someone presents a danger to their own security or to public security. States therefore have an obligation to establish a presumption in favour of liberty in national law, to consider alternative non-custodial measures before resorting to detention, to proceed to an individual assessment, to choose the least intrusive or restrictive measure, and to limit detention, when it is considered necessary, to the shortest possible time.

In my country missions and throughout my research, I have observed with concern that States use a wide range of reasons to justify the detention of migrants, well beyond the two I’ve mentioned, including lack of documentation and deterrence, that States very rarely implement alternative measures to detention, that migrants are often uselessly detained for months or years, and that several States continue to see irregular migration as a national security problem or a criminal issue, which it is not for the vast majority of migrants.

Yet, there is no empirical evidence that detention deters irregular migration or discourages persons from seeking asylum. Thus States should reconsider the deterrent argument as a reasonable justification for detention of migrants.

Beyond the issue of arbitrary detention, detention of migrants raises a number of other serious human rights concerns. Migrants in detention are frequently denied key procedural safeguards, such as prompt access to a lawyer, interpretation/translation services, means of contacting family or consular representatives, and access to legal means to challenge their detention. These restrictions are a clear violation of a number of due process rights enshrined in the international human rights standards. Additionally, detention conditions are often inadequate, with insufficient access to medical care, poor quality food, overpopulation, lack of information, and lack of meaningful activities.

Children are particularly vulnerable to the negative effects of detention, and will easily become traumatized. Children in detention are also vulnerable to becoming victims of violence, especially if they are separated from their parents.

The general human rights framework briefly described above obviously applies to children – but they are also entitled to additional protection afforded to them by the Convention on the Rights of the Child, which is the most widely ratified UN human rights treaty (all UN member states except two).
The Convention on the Rights of the Child provides, inter alia:

• That the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time (art 37(b))
• The obligation of States to take appropriate measures to ensure that children who are seeking refugee status or who are recognised refugees, whether accompanied or not, receive appropriate protection and humanitarian assistance (art 22)
• The right for children not to be separated from their parents against their will (article 9)
• The right for children not be punished for the acts of their parents, legal guardians or family members (art 2(2))
• That, in all actions concerning children, the best interests of the child shall be a primary consideration (art 3).

The Committee on the Rights of the Child has determined that the administrative detention of migrant children can never be in their “best interest” and is therefore always a violation of their rights. Alternatives to detention should therefore always be found for children and their families.

During my country visits, I have met with a large number of detained children. Some were detained with their parents or other relatives, some were detained separately from their parents in the same detention centre, and others were unaccompanied. In some cases, no efforts had been made by the authorities to trace the families of unaccompanied detained children. I have also met unaccompanied children detained in centres for adults, and adults in centres for children, due to the complete lack or inadequacy of age assessment.

As noted in my report to the Human Rights Council in 2012, the detention of migrant children together with their parents when the latter are found to be in an irregular situation, justified on the basis of maintaining family unity, may not only violate the principle of the best interests of the child and the right of the child to be detained only as a measure of last resort, but it may also violate their right not be punished for the acts of their parents. This does not mean that the best interests of the child are served through splitting up the family by detaining the parents and transferring their children to an alternative care system. The detention of parents has a detrimental effect on children, and may violate children’s right not to be separated from their parents against their will, as well as the right to protection of the family provided by both the ICCPR and ICESCR. Instead, in order to comply with international human rights standards, States should rather apply alternatives to detention to the whole family.

When children are accompanied by their parents or other adult family members, and unconditional release is not possible, the whole family should be subject to alternatives to detention. Such non-custodial measures may include registration requirements, deposit of documents, reasonable bond/bail or surety/guarantor, reporting requirements, and case management/supervised release.

Unaccompanied children should be placed in the alternative care system, either family-type or institutional care. They should under no circumstance be left on their own, as this leaves them vulnerable to becoming victims of violence, including sexual or economic exploitation, and trafficking. And they should quickly be appointed a legal guardian to protect their interests in loco parentis, as well as a lawyer to represent them in the various proceedings that they may face. Yet, during my missions, I have rarely met migrant children in an irregular situation who were not either left to their own devices, or detained, and, most of the time, guardians had not been appointment.

When applying alternatives to detention, States need to make sure they respect children’s rights, including their rights to education, to the enjoyment of the highest attainable standard of health, to an adequate standard of living, and to rest, leisure and play.

However, I have also seen some good practices, including shelters for families and for unaccompanied children, operated by NGOs or local community activists. Such initiatives must be encouraged and expanded.

I warmly welcome the International Detention Coalition’s work advocating for alternatives to detention, and I urge governments to work with all stakeholders in order to put in place non-custodial alternative measures to detention in favour of all migrants, particularly where children are involved.
Thank you.