The UN Committee on the Rights of the Child (CRC) recently delivered a landmark decision in a case involving immigration detention of children. In Jas.K.B. and Others v the Czech Republic (communication No. 193/2022), the Committee found that the State party had violated the rights of two sisters under articles 3 and 37(a) and (b) of the Convention on the Rights of the Child, guaranteeing the child best interests principle and their freedom from torture or other ill-treatment and from arbitrary detention, respectively. The Committee’s decision reaffirms the obligations of States towards migrant children. The ICJ, the AIRE Centre, the Dutch Council for Refugees and the European Council on Refugees and Exiles (ECRE) had intervened in the case by filing a legal brief with the Committee.
The case concerns the immigration detention of an 11-year-old girl from Afghanistan together with her older sister and parents in the Czech Republic, pending transfer to Austria under the EU Dublin III Regulation. No detention order was issued against the younger girl, but she was placed with her family in a closed detention centre and subjected to the same restrictions as adults held there.
The UN Committee on the Rights of the Child reiterated that “detention of a child because of their or their parents’ migration status constitutes a violation of children’s rights and is contrary to the principle of the best interests of the child given the harm inherent in any deprivation of liberty and the negative impact that immigration detention can have on children’s physical and mental health and on their development.” (para 9.3).
The Committee also clearly held that “in the context of immigration, the possibility of deprivation of liberty as a measure of last resort is not applicable, and that such deprivation of liberty is generally disproportionate and therefore arbitrary within the meaning of article 37 (b) of the Convention.” (para 9.3)
Recalling joint general comment No. 4 of the Committee on Migrant Workers and No. 23 of the Committee on the Rights of the Child (2017), the Committee reiterated that “children should never be detained for reasons related to their or their parents’ migration status and States should expeditiously and completely cease or eradicate the immigration detention of children,” and that “any kind of child immigration detention should be forbidden by law and such prohibition should be fully implemented in practice.” (para 9.3)
“This is a landmark case on immigration detention of children by the UN CRC, confirming that the possibility of detention as a measure of last resort does not apply to children in the context of migration control. The Committee set out this position in its Joint General Comment No 4 and 23 (together with the Migrant Workers Committee). It has now also clearly reaffirmed and applied these standards in this case, finding that the detention of children with their parents for 34 days, in a facility the authorities presented as adapted to families, was incompatible with the prohibition of torture or other cruel, inhuman or degrading treatment or punishment” said Karolína Babická, ICJ Europe and Central Asia Programme Senior Legal Adviser.
“States can no longer use the “family unity” as a reason to detain children with their parents. On the contrary – they have the obligation not to detain the child and keep the family together, using real alternatives to detention,” she added.
The Committee also notes in its decision, that the assessment conducted by the domestic authorities focused primarily on the preservation of family unity and the alleged suitability of detention conditions. However, the Committee recalled that, where the best interests of the child require maintaining family unity, this does not justify the detention of the child but rather requires the adoption of non-custodial solutions applicable to the family as a whole. (para 9.4). The Committee also found that the authorities had assessed the best interests of the child only to a limited extent, without addressing the harm inherent in detention giving meaningful consideration to non-custodial measures that could also have preserved family unity or showing how the children’s interests had been weighed against other considerations, as article 3 requires (para. 9.5).
In their intervention, submitted on 5 October 2023 after the Committee granted leave to intervene, the ICJ, the AIRE Centre, the Dutch Council for Refugees and ECRE argued that international law prohibits immigration detention of children, including when they are accompanied by their families, that the possibility of detention as a measure of last resort under article 37(b) does not apply in the context of migration, that family unity requires non-custodial solutions for the whole family rather than detention, and that age assessment must be guided by the presumption of minority and the benefit of the doubt (paras 6.2-6.5).
