In September 2016, all 193 Member States of the United Nations committed to working towards ending immigration detention of children. See paragraph 33 of the New York Declaration.
CHILDREN, FIRST AND FOREMOST
The Convention on the Rights of the Child is the most widely and rapidly ratified international human rights treaty in history. Only the United States has not ratified the agreement.
The Convention defines children as any person up to the age of 18 years, and establishes in international law that States Parties must ensure that all children—without discrimination in any form—benefit from special protection measures and assistance. The Convention establishes that children must be treated as children, first and foremost.
These special protection measures and assistance include, among other things, that children: have access to services such as education and health care; can develop their personalities, abilities and talents to the fullest potential; grow up in an environment of happiness, love and understanding; and are informed about and participate in, achieving their rights in an accessible and active manner.
The CRC released a Joint General Comment which provides authoritative guidance on the interpretation of State obligations regarding the human rights of children in the context of international migration. It clarified that that immigration detention is a child rights violation, and that the principle of ‘detaining as a last resort’ does not apply to children in the context of migration.
MOVING BEYOND A ‘LAST RESORT’
The standard for migrant children has been clarified after joint lobbying in 2012.
Before 2012, many assumed that child migrants could be detained as a last resort. The text of the CRC Convention specifies that children can be detained as a last resort. Specifically, Article 37(b) states that:
No child shall be deprived of his or her liberty unlawfully or arbitrarily. 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.
But, this article is not specific to immigration detention. It speaks to the detention of children in all situations, including those who have been convicted of a criminal offence, or a serious health protection issue.
The case of child migrants was clarified in 2012, with the CRC Committee adopting a higher standard.
Now the standard is immigration detention is always a child rights violation.
The CRC Committee clarified the rights of children in the context of migration in a non-binding day of general discussion. In the The CRC 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. In this light, States should expeditiously and completely cease the detention of children on the basis of their immigration status. Source Para 78. 79
Accordingly, the CRC Committee has called on states to:
… adopt alternatives to detention that allow children to remain with family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved, consistent with their best interests, and with children’s rights to liberty and family life. Source: Para 78, 79
This has been reinforced by the CRC / Committee for Migrant Workers Joint General Comment on Children in the Context of Migration which provides authoritative guidance on the interpretation of the provisions of the Conventions.
THE BEST INTERESTS OF THE CHILD
One of the most important rights enshrined in the Convention on the Rights of the Child is the principle of the best interests of the child.
- In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The Committee on the Rights of the Child (CRC)–the body of 18 Independent experts that monitors implementation of the Convention on the Rights of the Child by its State parties—has consistently and clearly stated that a child’s best interests should supersede other considerations of the state, including immigration control. In its General Comment No. 6, (para. 86), the Committee stated:
The principle of the best interests therefore requires States to take a clear and comprehensive assessment of the child’s age and identity, including their nationality, upbringing, ethnic, cultural and linguistic background, as well as any particular vulnerabilities or protection need they may have. The child’s best interests must supersede state aims, for example, of limiting irregular migration.
THE RIGHT TO LIBERTY
Liberty is a fundamental human right not only due to children but to all individuals, irrespective of legal status, citizenship, gender, culture, ethnicity, or country of origin. Its denial is a particularly grave limitation on the rights and dignity of human beings, and therefore must always be an exceptional measure of last resort.
According to the Universal Declaration of Human Rights, ‘no one shall be subjected to arbitrary arrest, detention or exile.’ Similarly, the International Covenant on Civil and Political Rights asserts: ‘Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.’
This general prohibition against arbitrary detention applies to children as well as adults. According to the Convention on the Rights of the Child, ‘no child shall be deprived of his or her liberty unlawfully or arbitrarily.’ Furthermore, the Convention states that children must be ‘protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions or beliefs’ of their parents, legal guardians, or family members.
In the context of child migration, the Committee on the Rights of the Child has found that:
“Children should not be criminalised or subject to punitive measures because of their or their parents’ migration status. 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” Recommendation 79, General Day of Discussion 2012.
This means that the denial of liberty to migrant children and families is never appropriate when based solely on irregular entry or status.
Accordingly, the Committee has called on states to “expeditiously and completely cease the detention of children on the basis of their immigration status” and to “adopt alternatives to detention that allow children to remain with family members and/or guardians in non-custodial, community-based contexts while their immigration status is being resolved, consistent with their best interests, and with children’s rights to liberty and family life.”
THE RIGHT TO FAMILY
The Universal Declaration of Human Rights outlines that the family is the fundamental and natural unit of society and requires the full protection of the state. This is further outlined in the International Convention on Economic, Social and Cultural Rights.
The CRC suggests States should take the child’s best interests into primary consideration. Article 9 of the
CRC crucially recognises that separation against the child’s wishes can only occur when necessary for the
best interests of the child, and only when the competent authorities deem it necessary.
THE RIGHT TO ECONOMIC, CULTURAL AND SOCIAL RIGHTS
Children are entitled to the full spectrum of socio-economic human rights – including the right to education, the right to housing and the right to health.
The Universal Declaration of Human Rights:
Article 25 “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care”
Article 26 (1)“Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory.”
Convention on the Rights of the Child:
Article 24 “States Parties recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to
such health care services”
Article 28(1) “States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all.”
- UN Convention on the Rights of the Child
- UN CRC / CMW Joint General Comment on Children in the Context of Migration
- UNICEF: Convention on the Rights of the Child page
- PICUM: Children, First and Foremost
- Captured Childhood: Chapter 1 International Law
- Report of the 2012 CRC Day of General Discussion
- PACE Committee report and resolution
- IACHR Advisory Opinion
- SR Migrants report on detention
- New York Declaration for Refugees and Migrants
- Global Compact on Refugees
- Global Compact for Migration