Lost in Migration: on the Detention of Unaccompanied Alien Minors

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Recently, the Belgian press honed in on the fact that the number of unaccompanied alien minors (hereafter: UAM) disappearing in Belgium is still rising. The problem is however not limited to Belgium and the issue reopens the debate on whether UAM should be held in detention or not. This blogpost focuses on recent EU developments in that respect.

More and more UAM are disappearing, many of them going missing from asylum centres only a few days after their arrival. In 2018, the Belgian Guardianship Service (Dienst Voogdij), registered almost 700 of these disappearances. In the Netherlands, no fewer than 2556 UAM disappeared over the past decade. The federation Missing Children Europe identifies multiple causes of disappearance, ranging from the fear of human trafficking to inappropriate detention conditions. The key question is whether, and under what circumstances, UAM can be held in detention.

The Common European Asylum System

In 1999, the idea of setting up a Common European Asylum System (CEAS) was born. The European Council agreed to create a legislative framework that would lay down the contours of Member States’ asylum policies (see now also Article 78 TFEU). Over the last twenty years, this CEAS has often been subject to adjustments, due to several structural weaknesses (e.g. unrealistic expectations regarding border control and a chaotic internal organisation).

More in particular, one of the CEASchallenges is to regulate the treatment and reception of UAM: non-EU national or stateless persons below the age of 18 who arrive on the territory of EU states unaccompanied by an adult or a guardian. Within the CEAS, multiple instruments address these minors. An example is the Reception Conditions Directive (RCD) (2013), a directive laying down the standards for the reception of applicants for international protection. This directive contains a specific provision on the detention of UAM. Article 11(3) provides the following: “Unaccompanied minors shall be detained only in exceptional circumstances. All efforts shall be made to release the detained unaccompanied minor as soon as possible.” This provision has already been the subject of criticism by various stakeholders in the past, who question its compliance with the right to liberty and security. 

Besides this provision, other CEAS measures were criticized as well. On top of that, in 2015 and 2016, the EU was confronted with an unforeseen large number of asylum seekers. This is why eventually, in 2016, the European Commission (hereafter: the Commission) came up with a number of proposals for a new reform of the CEAS.

More specifically, the Commission launched two packages with proposals for adjustments to the CEAS. Last year, after the EU elections, both reform packages were put into ‘unfinished business’, neither of them having been adopted. The new Commission is currently scrutinizing the CEAS once again. One of the six current headline ambitions of the Commission is to promote the European way of life, which includes the reform of the CEAS. The proposals made in 2016 will therefore be re-examined. The RCD too, will be reassessed. Will Article 11(3) RCD receive a make-over to ensure its compliance with the right to liberty and security?

The right to liberty and security

Within the context of the CEAS, UAM can invoke their human rights (e.g. Article 2 of the UN Convention on the Rights of the Child (hereafter: CRC) and Article 51 of the Charter of Fundamental Rights of the EU  (hereafter: Charter)). These include the right to liberty and security, enshrined in both Article 5 of the European Convention on Human Rights (hereafter: ECHR) and Article 6 of the Charter. In addition, the CRC also contains its own provision on the liberty and security of the child. Importantly, the CRC influences to some extent the interpretation of both the Charter and the ECHR (see Popov/France, §90). Article 37 CRC lays down three specific basic conditions for the detention of a child.

Firstly, Article 37(b) provides that a child may not be deprived of his or her liberty unlawfully or arbitrarily. This means that a child must be arrested or detained in accordance with a clear, non-arbitrary law and that the measure has to be exceptional, for the shortest possible period of time. The European Court of Human Rights (hereafter: ECtHR) also stressed this principle in a number of cases against France: a child can only be detained under Article 5(1) ECHR as an ultimum remedium and when no less far-reaching measure is available (e.g. A.B. and others/France, §124; R.C. and V.C./France, §63).

Subsequently, Article 37(c) lays down the rules governing the conditions of detention. A child must be treated with respect and humanity, which means that the child’s age should be taken into account, that the child is separated from other adults and that the child can generally maintain contact with family members. Finally, Article 37(d) requires the child to have legal and other appropriate assistance at his or her disposal.

The detention of UAM

The question now is whether the Commission proposal  (2016) for the RCD complies with the right to liberty and security of the UAM, since the proposal contained a provision on the detention of UAM. Article 11(3) of the proposal provided the following: “Unaccompanied minors shall be detained only in exceptional circumstances. All efforts shall be made to release the detained unaccompanied minor as soon as possible”. This is in fact merely a copy of what the current Directive (2013) requires (cf. supra).

The European Council for Refugees and Exiles (ECRE) strongly opposed this provision. In particular, ECRE encouraged an exception to detention for vulnerable persons with special reception needs, such as UAM. This would be in line with the case law of the ECtHR. Indeed, according to this case law, children should not be detained because the environment in which they end up often does not correspond with the best interests of the child (e.g. Popov/France, §147; Mohamad/Greece, §86). The UNHCR also firmly notes that “[a]s a general rule, unaccompanied or separated children should not be detained“.

On the other hand, Article 11(3) of the proposal does seem to meet the basic requirement for clarity set out in Article 37(b) of the CRC. Article 11(3) is clearly formulated and literally indicates that detention can only take place in exceptional circumstances and that every effort is made to lift the detention as soon as possible.

Nonetheless, the European Parliament opted for a very different approach from the one adopted by the Commission. In its report, the Parliament stated that the detention of children, including UAM, should be banned. According to amendment 64, instead of detaining the children, Member States should guarantee ‘appropriate care arrangements’. As the table below (based on data gathered by AIDA) shows, some Member States seem to already comply with this standard.

Location Are UAM detained in practice?  
Frequently Rarely Never
Belgium X
France X
Greece X
Ireland X
Italy X
The Netherlands X
Poland X
Portugal X

On the 14th of June 2018, the European Parliament and the Council reached a partial provisional agreement on the reform of the RCD. According to this provisional agreement, ‘[m]inors cannot be sent to prison, while detention of children will only be possible for family unity and protection purposes‘. There was however no final endorsement of the agreement in the Council, and as a result, the reform could not take place in the end.

Conclusion

At this moment, it is rather unclear which direction the future Reception Conditions Directive will take, since the Commission and the European Parliament seem to have different views with regard to the detention of UAM. Detention might seem the only way out to avoid the disappearance of UAM, but stakeholders and the European Parliament call for other solutions, such as the above-mentioned ‘appropriate care arrangements’. An important factor to be taken into account is the standard set by the relevant human rights instruments. Providing safe alternatives for detention might be the challenge Member States will have to face in the future.

Caranina (Nina) Colpaert is a PhD researcher at the Institute for Consumer, Competition and Market (CCM) at KU Leuven. She wrote her master’s thesis on the rights of UAM and the reform of the CEAS, under the supervision of Professor Koen Lemmens (Leuven Centre for Public Law). Last November, she received the EU@School@KULeuven award (organised by fund Lenaerts-Grimonprez and Case4EU@School) for adapting this master’s thesis into a secondary school course. Her current research focuses on the legal framework for medicine shortages, under the supervision of Professor Wouter Devroe.

This blogpost is partly based on Caranina’s upcoming article in Family & Law.


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