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Key Words Archives: Type of alternative to detention

Communications No. 55/2018 E.B on behalf of E.H. et al. v. Belgium, 24 March 2022

The CRC Committee found that the children’s detention in closed family detention centres violated the prohibition on ill-treatment (art. 37 CRC), read alone and in conjunction with the best-interests principle (art. 3 CRC). Belgium’s failure to consider alternatives to detention, including the option of allowing the families to remain in their own homes while they pursued appeals and other judicial remedies, was an element of the finding that Belgium had not taken the children’s best interests as a primary consideration.

Source of the standard:

PDF file in English

PDF file in French

PDF file in Spanish

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A.M. v. The Principal Immigration Officer, 5 November 2021

The applicant was a Bangladeshi national who was rejected from his asylum application and served with a removal order before he was referred for an age assessment procedure by the competent authorities and assessed as an adult following a bone test despite providing his birth certificate. He appealed this decision and challenged the results of the bone test as being inaccurate.

In the meantime, the appellant requested a review of his detention to be held in front of the Immigration Appeals Board and argued that the possibility to apply less coercive measures was never assessed in his case and that due consideration should be given to the fact that he is a minor assessed as an adult through an inaccurate procedure.

The Board noted the physical appearance suggesting the applicant is young and considered that there are sufficient grounds to believe that the appellant could be a minor and should therefore be released pending the result of the age assessment appeal. The Board considered that since this was an appeal on the removal order and not on a detention order, the appellant must file a request for bail if he wants to be released.

The Board upheld the request for bail subject to a care and custody order in favour of the appellant issued by the relevant authority. The person/guardian who will have care and custody of the appellant was to accompany the appellant to the Police station to sign every Friday from 7:00am – 7:00pm. The Board is also to be informed of the address as to where the appellant will be residing and must immediately inform the authorities if he goes missing. Additionally, the Board imposed a 1000 Euro deposit as a guarantee by the person who is going to have full care and custody.

However, the applicant was never released since his appointed representative (legal guardian) refused to act as the guarantor.

Source: PDF with the case

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Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals

The “Return Directive”, with implementation deadline of 24 December 2010, sets up a common set of rules for the return of non-EU nationals who do not or who no longer fulfil the conditions for entry, stay or residence within the territory of any EU country, and the related procedural safeguards. It establishes a legal obligation for Member States to take due account of the best interests of the child (Article 5) and to use immigration detention of children and families only as a measure of last resort and for the shortest appropriate period of time (Articles 15 and 17).

Source: official link

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UNHCR, Refugee Children: Guidelines on Protection and Care

The UNHCR Guidelines aim to define the principles and practical measures for the protection and assistance of refugee children. UNHCR argues that because detention can be very harmful to refugee children, it must be used only as a measure of last resort and for the shortest appropriate period of time. The same principle applies to alternative accommodation in which children are held under prison-like conditions. Families must be kept together at all times.

Source: official link

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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.

Source: official link

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