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Key Words Archives: Right to interpretation

R.R. and Others v. Hungary, ECtHR, Application no. 36037/17, Judgment of 2 March 2021

Keeping asylum-seeking family in the transit zone amounts to detention in breach of Articles 5(1) and 5(4). Significant case, as the Court finally joined the broad consensus regarding the nature of placement in the Hungarian transit zones, contrary to the findings in Ilias and Ahmed ECtHR GC judgement, where it concluded that transit zones are not detention. The Court also found that the conditions in the transit zone amounted to a violation of Article 3. It found that given the physical conditions of the containers in which the applicants were accommodated, the unsuitability of the facilities for children, the lack of professional psychological assistance and the duration of the stay in the transit zone, the threshold of severity required to engage Article 3 had been reached.

http://hudoc.echr.coe.int/eng?i=001-208406

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General comment No. 5 (2021) of the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) on migrants’ rights to liberty, freedom from arbitrary detention and their connection with other human rights (advanced unedited version)

The UN Committee in its General Comment understands as ‘alternatives to detention’ all community-based care measures or non-custodial accommodation solutions – in law, policy or practice – that are less restrictive than detention and which must be considered in the context of lawful detention decision procedures to ensure that detention is necessary and proportionate in all cases, with the aim of respecting the human rights and avoiding arbitrary detention of migrants, asylum seekers, refugees and stateless persons.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CMW/GEC/9459&Lang=en

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EASO, Practical Guide on Age Assessment (2nd edition)

The EASO Practical Guide on Age Assessment acknowledges, inter alia, that the benefit of the doubt in age determination procedures is a key principle and safeguard since none of the currently available methods of age assessment can determine a specific age with certainty. So, if after the age assessment remains the doubt that the individual could be a child, they should be treated as such.

https://www.easo.europa.eu/publications/easo-practical-guide-age-assessment-second-edition

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Sh. D. and others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, ECtHR, Application No. 14165/16, Judgment of 13 September 2019

In its judgment the ECtHR reiterated the finding that States Parties to the Convention on the Rights of the Child have a positive obligation to protect and take care of unaccompanied migrant children under Article 3 ECHR and Article 20 CRC. The decision also challenged the lawfulness of the detention of migrant children on the basis of the best interests of the child principle.

https://hudoc.echr.coe.int/eng?i=001-193610

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Council of Europe Parliamentary Assembly: A study of immigration detention practices and the use of alternatives to immigration detention of children

This study from the Council of Europe Parliamentary Assembly (PACE) provides an overview of issues relating to immigration detention practices, and promotes the use of alternatives to immigration detention of children (ATDs). The study argues that the main idea behind ATDs is identifying options which provide state authorities with a degree of control over asylum seekers while allowing for a basic freedom of movement. ATDs need to be regulated in order to avoid the arbitrary imposition of restrictions on liberty or freedom of movement and, even when alternatives apply, access to legal aid should be given to migrants, especially to children.

https://edoc.coe.int/en/migration/7533-a-study-of-immigration-detention-practices-and-the-use-of-alternatives-to-immigration-detention-of-children.html

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Report of the Special Rapporteur on the Human Rights of Migrants: ending immigration detention of children and providing adequate care and reception for them

This report of the Special Rapporteur on the Human Rights of Migrants, Felipe González Morales, was submitted in accordance with General Assembly resolution 74/148 and Human Rights Council resolution 43/6. It advocates for a human rights-based approach to end child migration detention. In particular, it urges States to integrate unaccompanied migrant children into national child protection and welfare systems without any discrimination, irrespective of the child’s migration status.

https://edoc.coe.int/en/migration/7533-a-study-of-immigration-detention-practices-and-the-use-of-alternatives-to-immigration-detention-of-children.html

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