Exploring the Ambiguities Between Immigration

Introduction

Immigration detention is a response that dilutes the lines between punishment and immigration control by subjecting undocumented immigrants to conditions that are akin to imprisonment and involve interference with freedom from restraint. Law dissertation help Immigration detention is a common practice in many western countries today; for example, United States has at any given period of time, significant numbers of people who are subjected to immigration detention. For a group of scholars, immigration detention is an example of an excessive measure against individuals who may be migrating from their own home countries due to war, environmental issues, or persecution; for instance, Kalhan writes that “detention imposes serious hardships by its nature, depriving individuals of the ability to work and earn

income, attend school, and maintain relationships” and that there are significant economic, emotional, and psychological harms that are resultant of immigration detention affecting not only the detainees but also their family members and children. Despite there being serious concerns about immigration detention in human rights jurisprudence, the practice continues and worryingly also extends to detention of minor children who maty be detained with their parents or guardians. There are also many cases of unaccompanied minors who are also detained under immigration detention.

This dissertation concerns the detention of children under immigration detention laws with a special focus on the European Union, where immigration crisis in the recent period has resulted in the proliferation of the practices of immigration detention. Immigration crisis in Europe refers to the period when a large number of people came to the EU from war torn countries like Syria, Afghanistan, and Iraq; these people were refugees, asylum seekers and economic migrants and came into the EU through the Mediterranean and South EU with maximum immigrants coming into Italy and Greece. The crisis was precipitated by wars in different parts of the world, predominantly the Middle East. The immigration crisis was in its very nature a humanitarian crisis but, it led to political and legal responses in different European countries. One of these responses include immigration detention where even children were subjected to detention in some countries of the EU. The use of immigration detention of children has led to important questions in human rights context, in particular, the right to liberty, which is deprived by detention. Immigration detention of children is a common practice in many EU countries. The focus of this dissertation is only on the immigration detention of children and the identification and discussion on any alternatives

A Kalhan, ‘Rethinking Immigration Detention’ (2010) 110 Columbia Law Review Sidebar 42.
Ibid.
Ibid, 46.
"Migrant crisis: Migration to Europe explained in seven charts" (BBC News, 4 March 2016) accessed < https://www.bbc.com/news/world-europe-34131911>
OHCHR, Child Immigration Detention in the EU (OHCHR 2019) accessed < https://europe.ohchr.org/Documents/Publications/Paper-ChildImmigrationDetentionintheEU-EN.pdf>

that may be used in place of immigration detention. Two of the alternatives that are discussed at length in this dissertation are community measures and case management system. Where these measures are already in practice in non EU jurisdictions, like the United States, the discussion with regard to these measures would also involve a discussion on non EU jurisdictions.

As noted above, immigration detention is one of the responses made by western countries to control illegal immigration. For instance, in the United States, there is a mandatory detention regime under statutory provisions, which also allows the government to detain immigrant children. In the UK, immigration detention is one of the responses to illegal immigration, the other being the adoption of greater restrictive controls under the Immigration Act 2016. The purpose of these measures is make the UK less attractive to immigration and to deter immigrants from coming into the UK through illegal means. This is indeed a common purpose of immigration detention in the countries where it is practiced. The other purpose of immigration detention is to control the movement of undocumented immigrants. Although, these are the purported reasons for the application of immigration detention in countries like the United States and the UK, the immigration detention laws often end up being punitive in nature, where immigrants are dealt with in a manner that is akin to criminalisation. For instance, the Immigration Act 2016 has several provisions for punishing illegal immigration, which have been criticised for their propensity to deal with both illegal immigrants and forced migrants in the same manner. This point is relevant because there are many immigrants who may be undocumented because they have escaped severe conditions like war or conflict from their countries and come into the host state for refuge. These are forced immigrants who have not been given much choice about immigration and whose motivations for coming into the host country are often related to escape from persecution or conflict. As far as the law is concerned however, there may be no difference made between such immigrants and illegal immigrants, with both being subjected to the regime of immigration detention. This extends to any children who are also involved in the cases. Therefore, one of the concerns regarding immigration detention is that it is a punitive like measure, which treats all immigrants from a criminalization perspective and does not differentiate between illegal and forced immigrants.

Countries that have immigration detention in place, often justify such measures on the basis of the security perspective where immigration is framed as a security problem or issue requiring a securitisation response from the government. In measures adopted by the western countries including USA and the UK, there is a tendency to deal with immigrants from the perspective of their being a risk of flight or danger to the community; this has

8 United States Code, § 1227(a).
Joe Crawford, Sharon Leahy, Kim McKee, ‘The Immigration Act and the ‘Right to Rent’: exploring governing tensions within and beyond the state’ (2016) 10 (2) People, Place and Policy 114.

allowed the development of an approach of mandatory immigration detention targeting immigrants without permits, which may also include families fleeing from situations in their home countries that pose a threat to their lives and communities. Amidst forced migrations due to environmental reasons or safety reasons, western countries are increasingly taking an immigration control approach, which speaks to balancing the refugee populations and asylum seekers with securitisation needs. The measures have allowed even children being detained under immigration control laws. These measures have been controversial for their possible contravention of international human rights standards. Therefore, another concern regarding immigration detention is that it is framed from the perspective of security discourse and it may involve compromising on the human rights of immigrants based on prioritisation of security of the state.

There are alternatives to immigration detention which can be used to mitigate the effect of the securitization discourse on the human rights of the immigrant children. However, these alternatives may not be used as extensively, and immigration detention may be more commonly used as indicated by literature. This raises a concern that when there is availability of alternatives that can mitigate the effect of immigration detention on the human rights of children, such alternatives are being passed on in preference to immigration detention. Therefore, one of the objectives of this dissertation is to make a case for the use of alternatives to immigration detention based on literature and empirical studies on this subject matter. For this purpose, the dissertation refers to case studies that have already used the alternative measures, in Europe as well as in the United States.

This dissertation analyses the immigration detention of children as a response to the immigration crisis in the EU. A comparative perspective is also provided by comparing the responses within the EU to the responses in the United States. The objective of this dissertation is to explore how immigration detention of children may impact their right to liberty and make a case for the use of alternatives to immigration detention instead for mitigating the impact of detention.

Immigration crisis in the EU – A background

In order to understand the issue of immigration detention, it would be useful to first explain in brief the immigration crisis in Europe, which led to the recent changes in the laws allowing immigration detention. The immigration crisis in Europe is in actuality a refugee crisis caused by the increase in wars in the Middle East and North Africa regions, which led to the fleeing

A Das, ‘Immigration Detention: Information Gaps and Institutional Barriers to Reform’ (2013) 80 U. Chi. L. Rev. 137, 138.
M Gibney, ‘Asylum and the Expansion of Deportation in the United Kingdom’ (2008) 43 (2) Government and Opposition 146.
Kalhan, ‘Rethinking Immigration Detention’, supra n 1.
Ibid.

of populations from this conflict ridden regions towards Europe. The crisis accelerated after 2015, with an increase in incoming refugees from Syria, Iraq and Afghanistan. The Syrian war, crisis in Afghanistan and the Iraqi conflict were the reasons for there being an influx of a significant number of people from these regions into Europe.

It is interesting that a crisis which was for its greater part humanitarian in nature, led to legal and policy responses in the European countries, which amounted to criminalisation of refuge and asylum seekers. The immigration detention policy is to a great extent the result of such criminalisation because it equates refugees and asylum seekers with other illegal undocumented immigrants in the way that it is applied to them. There is also a degree of public acceptance of such policies, which also include detention of children. Two reasons can be pointed out for this approach of the policy makers to immigrants as well as the acceptance of immigration detention policies by a section of the public opinion in European countries: one, a perception that immigrants (particularly from Middle East and African countries) are highly criminalised; and two, a perception that an influx of higher number of non European immigrants is a threat to the European societies. Both these factors are discussed in some detail below and this brief discussion also gives an insight into the reasons why immigration control is necessary and how immigration detention may have come to be accepted as important to such immigration control.

Immigrants in European countries, especially immigrants from Islamic countries have found reduced acceptance in the society due to an increased perception of their criminalisation; for instance, as indicated by one of the research studies set in German the researchers found that the public acceptance of immigrants in Germany underwent significant change after the sexual assaults of New Year’s Eve (NYE) 2015. This was contrasted with the findings from previous studies where researchers had reported to higher acceptance of immigrants. The researchers of this study suggested that based on the German immigration discourse, they would expect reduced acceptance of immigrants who were explicitly connected with events like the New Year Eve 2015, thereby having reduced acceptance for Muslims. The acceptance of immigrants from Arab or African countries has particularly decreased at least in Germany as indicated by this study. Therefore, one of the factor that leads to the decreased acceptance of immigrants in European countries may be the perceived criminality of the immigrants as reflected in the events of New Year Eve 2015 in Germany. Due to the actions of a few immigrants, there is an increase in negative public perception on

Mohammad Zamani and Amin Zarghami, ‘The refugee and immigration crisis in Europe: urgent action to protect the mental health of children and adolescents’ (2016) 58 (5) Journal of Adolescent Health 582.
Ibid.
C S Czymara and AW Schmidt-Catran, ‘Refugees unwelcome? Changes in the public acceptance of immigrants and refugees in Germany in the course of Europe’s ‘immigration crisis’’ (2017) 33 (7) European Sociological Review 735.
Ibid.
Ibid.

immigrants, which may also have implications for the policy makers’ conceptualisation of the immigration policies and may allow the public acceptance of laws that allow immigration detention including that of children.

Another reason which has a negative impact on the level of acceptance of immigrants in the European countries is the perception of being overwhelmed by foreign immigrants which seeks to change the structure of European societies, making them less ‘European’. One writer explains this as follows:

“According to some commentators of foreign policy at present we are witnessing a siege of Europe which tends to shatter the European structure, institutionally speaking, and raising tensions of everyday life of millions of Europeans who feel increasingly more affected by the massive wave of non-European immigrants. The exodus of these non-Europeans immigrants of Arab origin, both Muslims and non- Muslims, who come from countries of the Middle East or North Africa, generated in the same time a strong confused murmur in the European governments, especially among the citizens of the Communities who complains that the situation is out of control and this is a direct result of exceptionally lax policies of the European Union as regards to the freedom of movement and unmanned international borders, all of this has taken effect and can be observed with the slow collapse of the migration process.”

According to the viewpoint of some commentators therefore, the incoming immigration from non European territories presents a problem for the European societies where they are confronted with significant numbers of immigrants from foreign cultures and races and that this problem is compounded by the lack of cohesive and strict law and policy regarding immigration. This viewpoint is critical of what it perceives to be a lax attitude of the European Union in confronting the immigrant crisis and indeed adding to the crisis by allowing immigrants to come in substantial numbers into Europe. Those subscribing to this viewpoint can be expected to support policies and laws that respond to increased immigration in a stricter way. It can be expected that there would be increased support for immigration detention by those who consider that the EU has been rather lax in letting in immigrants in large numbers leading to an increase in undocumented immigration in European countries.

The discussion in this section explained the immigration crisis and the reasons why there is less public acceptance of immigrants from certain countries into Europe. This discussion sets the background for the next part of the dissertation, which discusses immigration detention of children, which is the particular focus of this dissertation.

Ana-Maria Bolborici, ‘The immigration crisis–reflections concerning the crisis of European identity’ (2016) 9 (1) Bulletin of the Transilvania University of Braşov, Series VII: Social Sciences and Law 39, 39.

Immigration children detention in the EU

Immigration detention of children is a common practice in many of the European countries including the UK. Such detention involves the holding of children in facilities along with their parents or guardians or alone (in case of unaccompanied minors) with a restriction on their movement. Empirical research on effects of immigration detention of children suggests that such effects are negative and significant. In a research study involving 24 detained children between the ages of 3 months to 17 years, the researchers found that detained children showed symptoms of depression and anxiety; reported to having sleep problems, somatic complaints, poor appetite, emotional symptoms, and behavioural difficulties; showed symptoms of weight loss, and lack of educational and emotional development. The detained children experienced mental and physical health difficulties that could be linked to the experience of their detention. The researchers suggested that the government of the UK should consider alternatives to detention for children as there were significant negative impacts of such detention on the children’s emotional, physical and psychological development.

The experience of practice of immigration detention is not isolated to the UK as there are many countries within the EU where immigration detention is being used as a common response to immigration. This despite the fact that the use of immigration detention has come to be viewed with concern in the context of international human rights law. Of particular important in this regard are the 1989 United Nations Convention on the Rights of the Child and the 1999 United Nations High Commissioner for Refugees (UNHCR) Revised Guidelines Relating to the Detention of Asylum Seekers. The United Nations Convention on the Rights of the Child emphasises on the principle that the best interest of the child shall be a primary consideration in all decision-making involving children in Article 3. The Revised Guidelines Relating to the Detention of Asylum Seekers emphasises on the responsibility of the states to not detain children who are seeking asylum. The European Court of Human Rights has also emphasised on the best interest doctrine that argues that any measures taken with relation to children be taken as per the best interests of the children, be also

Ann Lorek, Kimberly Ehntholt, Anne Nesbitt, Emmanuel Wey, Chipo Githinji, Eve Rossor, and Rush Wickramasinghe, ‘The mental and physical health difficulties of children held within a British immigration detention center: a pilot study’ (2009) 33 (9) Child abuse & neglect 573.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.

applied to immigration detention. Detention of children may engage Article 3 of the ECHR.

Despite these provisions in international law, countries in the EU are able to circumvent the duty not to detain children. For instance, the British government had entered a reservation to the UN Convention on the Rights of the Child so as to allow them to make laws on immigration control affecting children. Interestingly, while best interest doctrine is recognised by Section 11 of the Children Act 2004, the list of agencies that are under a duty to ensure the welfare of children do not include immigration agency.

As per the best interest doctrine, the detention of children even when they are illegal immigrants, may be unjustified. Nevertheless, there are provisions in the laws in EU countries, including in the UK, which allow governments to detain children under immigration detention provisions. In the UK, the Immigration Act 2016 has introduced immigration control measures like detention of a pregnant woman of up to 72 hours, deportation or detention of entire families in detention centres, while the cause for illegal status remains irrelevant and victims of human trafficking, discrimination, or someone with incomplete documentation may also be subjected to these measures. Part 3 of the Immigration Act enables immigration officers to search, seize and detain. There are cases of minor detention before the HM Courts & Tribunals Service, where small children also have been detained. The measures taken to detain children have been criticised as creating distress for the immigrant children who are detained and also violating their human rights under the European Convention on Human Rights.

The Council of Europe’s Commissioner for Human Rights has noted its concerns to the immigration detention regime. For instance, with relation to the British regime under

Popov v France Application No 39472/07 of 2012; ECtHR, ‘Factsheet – Accompanied migrant minors in detention’ (October 2019) accessed
Muskhadzhiyeva and Others v. Belgium Application No. 41442/07 of 2011.
Lorek et al, ‘The mental and physical health difficulties of children held within a British immigration detention center: a pilot study’, supra n 19.
Immigration Act, Section 60.
H Petch, J Perry, & S Lukes, How to improve services for destitute migrants (Joseph Rowntree Foundation 2015).
J Hyde, “Immigration appeal hearings delayed up to nine months” (2015, October 12) .
Council of Europe’s Commissioner for Human Rights, Memorandum on the human rights of asylum seekers and immigrants in the United Kingdom (2016).

Immigration Act the Council of Europe has highlighted Section 59, Part 3 of the Act, which allows detention of a vulnerable person, including a minor for an uncertain and ambiguous time period, leading to cases of detentions up to one and two years and even beyond two years in some cases. Indeed, immigration is prevalent in many countries within the EU; as noted by the OHCHR in the following statement, although the OHCHR also notes that there is a paucity of information on the exact number of children that are subjected to immigration detention in the EU countries:

“On a given date in 2016, 180 children were detained in the 14 EU countries that provided data. The longest detention period of unaccompanied children was 195 days (of a 15-year old boy in Latvia, whose nationality was not reported) and 151 days (of a 16-year old Syrian boy in Poland). There is significant divergence between member states in the methodology of collecting data; in some countries, children who are detained with their parents are not counted separately as they may not always have been subject to a detention order but deprived of liberty to keep them together with their parents.”

As noted in the above statement, there are a number of children who are subjected to immigration detention on any given day and that the period of detention in some countries like Latvia can be very long. However, the difficulty is that the different EU states follow different methodologies for collecting their data on the number of children who are detained under immigration detention. One of the important comment in the statement is that there are a significant number of children who may not be included in the data on children subjected to immigration detention because there are no orders against them per se, rather these children may be kept with their parents who are subjected to detention. While technically these children may not be counted in the data related to detainees, they are still deprived of their liberty when they are kept with their parents in detention.

In the United States, some steps related to immigration detention including detention of children, have been controversial. One of the controversial aspects of the American approach to immigration detention is the use of private prisons to detain immigrants, with little oversight from the government, although the US Supreme Court appears to have absolved private companies of their liabilities with respect to immigrant detainees. There have been some concerns about oversight in private prison administration of immigrant detention. There are studies that indicate that those in immigrant detention are at risk of

Ibid.
OHCHR, Child Immigration Detention in the EU (OHCHR 2019) accessed
Minneci v. Pollard, 132 S. Ct. 617, 626 (2012).
P.L. Torrey, ‘Rethinking Immigration's Mandatory Detention Regime: Politics, Profit, and the Meaning of 'Custody' (2015) 48 U. Mich. J. L. Reform 879.

abuse from prison authorities without little oversight mechanism to protect them against such abuse. Adult detainees may also be put in solitary confinement, which raises questions about their human rights. The issue of human rights and detainees has gained traction in the recent times because there is increased scrutiny of the conditions of immigration detention facilities; 111 reported deaths in immigration detention facilities in the immediate period before 2015 also raised red flags about the conditions of immigration detention in USA. The concerns are extended to the impact of immigration detention on families and children. At the same time, the lack of legal redressal of human rights violations of immigrants in detention, including children, opens new questions, especially when private corporations are responsible for detention.

More recent immigration crisis in the United States related to children was seen in the year 2019 when apprehensions arose about migrant children crossing the southern border without their parent or guardian, leading the Trump administration to call for immigration children detention. The influx of asylum seekers, be these adults or children was seen as a national security threat, and responded to through a number of policies leading to a humanitarian issue in the United States. Approximately 76,020 unaccompanied minors were apprehended by the American authorities near their border with Mexico in 2019 as well as a high number of children traveling with family members. These children were detained by the Departments of Homeland Security (DHS) and Health and Human Services (HHS) as per the provisions of the Homeland Security Act of 2002. The detention of immigrant children in the United States sparked a controversy with many questioning the steps the government had taken as being in contravention of the international human rights standards. An important judgment on this issue is Flores v Barr. The legal principle laid down by this case ( also called the Flores Agreement) is that migrant children taken into detention should be

M. Sthanki, ‘Deconstructing Detention: Structural Impunity and the Need for an Intervention’ (2012) 65 Rutgers L. Rev. 447; M. Welch, ‘Improving the Carceral Conditions of Federal Immigrant Detainees’ (2012) Harvard Law Review 1476.
A. Shahshahani and AN El-Sergany, ‘Challenging the Practice of Solitary Confinement in Immigration Detention in Georgia and beyond’ (2012) 16 CUNY L. Rev. 243.
Torrey, ‘Rethinking Immigration's Mandatory Detention Regime’, supra n 35.
M.J. Sullivan and R Enriquez, ‘The Impact of Interior Immigration Enforcement on Mixed-Citizenship Families’ (2016) 36 (1) Boston College Journal of Law & Social Justice 33.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Council on Foreign Relations, ‘US Detention of Immigrant Children’ (CFR, February 10, 2020), accessed < https://www.cfr.org/backgrounder/us-detention-child-migrants>
Ibid.
Ibid.

released as “expeditiously” as possible. The Flores case illustrates the legal issues that are involved in detention of children, including issues related to legal challenges to detention conditions. In this case, the U.S. District Court Judge Dolly M. Gee in the Central District of California held that the two centres being used to detain families including children in Texas, were in contravention of the 1997 settlement by the federal government that requires that children entering the United States alone should be granted a release to relatives or foster care. Judge Gee ordered the Department of Homeland Security to release the detained children unless the department could establish in court any significant flight risk or a danger to themselves or others posed by the detained children. Barring these conditions, children could not be datained as per the order of the judge in Flores.

This section of the dissertation explained the practice of immigration detention of children in the European countries as well as other western countries like the United States. This discussion also showed that there is no acceptance of such practices in international law. Indeed, there are specific international law instruments that are incompatible with the practice of immigration detention of children. Most relevant of these is the Convention of the Rights of Child, which lays down the ‘best interest’ principle for making any laws or policy that impact the interest of children. This discussion also showed that the European law too recognises the principle of best interest of children. Despite these measures, there has been an increase in the use of immigration detention as indicated by this section. The next section of the dissertation discusses the particular right of personal liberty of children, which is also recognised by the European law and how this right is impacted for those children who are placed in immigration detention facilities. The impacts of such detention on the physical, psychological, and emotional health of children are also discussed.

Impact of immigration detention on the children’s right to personal liberty under the ECHR

The right to liberty is not just a common law right (in the UK) but also a right protected under the ECHR, Article 5. In the English law, liberty is recognised as a ‘residual’ concept in

the common law, meaning that an individual has all the liberty that is not denied by the law to them. In the ECHR, liberty and security of person is protected under Article 5. Although some restrictions are allowed under Article 5, these have to be justified under the scheme of Article 5 itself, and for this purpose the degree and intensity of restriction are relevant factors. When determining whether deprivation has taken place, the court will be required to consider the whole range of criteria, including the type, duration, impact, and

Ibid.
Ibid.
Entice v. Carrington [1765] 19 St. Tr. 1029; Gary Slapper and David Kelly, The English Legal System (Taylor & Francis, 2009) 38.

the manner of implementation. These factors also have relevance to understanding whether the immigration detention of children comes within the scope of Article 5 of the ECHR.

Indeed, there is a dichotomy between the asylum and immigration control laws in European countries and the provisions of the ECHR. Children who are detained under the immigration laws are impacted not just by the violation of their right to personal liberty under Article 5 of the ECHR, but also in their family and private lives under Article 8 of the ECHR. The European Court of Human Rights has also recognised these rights of minors as seen in Rahimi v Greece. In this case, the petitioner was a 15 year old Afghan unaccompanied minor who came to Greece and was placed in detention for two days, and then abandoned to live on the streets. Using the principle laid down in Mubilanzila Mayeka, wherein the court observed that unaccompanied minors form a “class of highly vulnerable members of society to whom the [...] State owed a duty to take adequate measures to provide care and protection as part of its positive obligations under Article 3 of the Convention,” the court in Rahimi held that the Greek authorities had violated Article 3 rights of the minor, which relates to right against inhumane or degrading treatment.

The cases discussed above indicate that there is an obvious dichotomy in how the immigration laws, particularly, detention, are framed and the obligations of the states under the ECHR. The OCHCR has noted that children suffer the effects of detention in ways that are markedly different from adults, with increased distress associated with deprivation of liberty as compared to adults. In part, this is due to the lack of understanding of children as to why they are being subjected to detention, which compounds their distress and anxiety. This adverse condition is also made more worse by the lack of access to formal education, care and support, health services, and increased restrictions on their enjoyment of family life and play. These negative impacts of immigration detention on children have also led to the European Court of Human Rights time and again determining that child immigration

De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017.
Laurens Lavrysen, ‘European Asylum law and the ECHR: an uneasy coexistence’ (2012) 4 Goettingen J. Int'l L. 197.
Rahimi v. Greece, ECHR (2011), Appl. No. 8687/08.
Ibid.
Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, ECHR (2006), Appl. No. 13178/03, para 55.
Rahimi v. Greece, ECHR (2011), Appl. No. 8687/08.

detention amounts to torture and degrading treatment. Significantly, the court has also time and again emphasised the applicability of the best interests of the child principle that can be used to distinguish child detention from adult detention and for which reason, child detention cannot be subjected to the same standards as adult immigration detention.

The negative impacts of detention on children have been recognised at the level of the United Nations as well; it may be noted that the New York Declaration for Refugees and Migrants signed by the majority of the UN General Assembly members including EU states on 19 September 2016 committed to ending detention of children for migration-related reasons and implementing community-based alternatives instead of child detention. The Declaration also noted that child detention should be resorted to Governments committed to limit child detention to only as a measure of last resort and in the least restrictive setting, and for the shortest possible period of time. This suggests that there is already an international consensus on how children detention ought to be avoided and instead of this, other measures should be adopted.

Moreover, it is suggested that even when child detention is resorted to, it is a measure of last resort and within the least restrictive settings. However, as noted by the OCHCR, countries like Latvia have been found to have child detention lasting for significantly long period of time. The New York Declaration is not the only document that reveals international consensus on ending child detention; in 2018, 164 countries adopted the Global Compact on Migration during the UN intergovernmental conference in Morocco, in which it is stated by Objective 13 that the countries will “commit to prioritize non- custodial alternatives to detention that are in line with international law, and to take a human rights-based approach

to any detention of migrants, using detention as a measure of last resort only.”

Thus, immigration detention has definite impact on the right of personal liberty of children. The European law, particularly ECHR, is incompatible with such detention of children.

Detention has more negative impact on children who are not able to make sense of such detention as compared to adults. These negative impacts can be physical and psychological. The detention of children therefore cannot be said to comply with the principle of the ‘best interest’ of children. It is also incompatible with human rights standards as laid down in the ECHR, other human rights conventions, and the jurisprudence of the European Court of

Popov v. France App no 39472/07 and 39474/07 (ECtHR, 19 January 2012); Muskhadzhiyeva and Others v. Belgium App no 41442/07 (ECtHR 19 January 2010); Kanagaratnam and Others v. Belgium App no 15297/09 (ECtHR 13 December 2011).
Ibid.

Human Rights. Therefore, it can be argued that there is a need to identify and apply alternatives of immigration detention. The next section of this dissertation discusses such alternatives to immigration detention based on literature on the practices in different countries where such alternatives to detention.

Alternatives of immigration children detention

There are alternatives to immigration detention for children in existence, but as per OCHCR these alternatives are underused at this time. There are alternatives in community measures and case management, which are meant to be effective and are cheaper than detention. There are specific legal provisions in the laws of different states, which may compromise the use of alternatives. For instance, the Immigration Act, Section 67 obligates the Secretary of State to relocate unaccompanied refugee children and provide support to a specified number of such refugee children from other countries in Europe; this has been criticised on the account of its inhumane approach, as there are situations of untimely relocation which came to light or absence of requisite steps as in the case of Calais children who were not given sanctuary in time and some children went missing or became victims of trafficking.

The New York Declaration for Refugees and Migrants has emphasised on community-based alternatives. The Global Compact on Migration also mentions certain alternatives to detention in non-custodial contexts, which include community-based care arrangements. The Compact mentions that children in detention should be ensured of their access to education, health care, family life and family unity. Therefore, one of the alternatives to immigration detention of children that deserves to be considered in this context is that of community-based care arrangements instead of keeping children in detention facilities. Community-based care provisions are recognised to be the most appropriate alternatives to detention, with OCHCR also stating that the “only adequate and effective way to protect them [children] from going missing and/or being taken by traffickers is to create appropriate placement options in the community. Any measure designed to protect a child should be implemented within the child protection system, with a view to provide appropriate care arrangements for the individual child.”

In the United States, where immigration detention of children has been rather controversial in the last two years, there are some commentators who are advising that instead of using a detention based model with children, a community based model be adopted. Some community based alternatives are even now being practiced in the United States as reported in a study that notes that in 2008, more than 51,000 aliens were released from detention into the community under measures that included use of bond, order of recognisance, order of supervision, and parole. Indeed, the United States has experimented with community based alternatives to detention since the 1980s. At that time, community-based alternatives involved partnerships between immigration authorities and faith-based organisations, much in the way that some European countries are looking at partnerships with NGOs for community based programmes. The data from this early period of use of community based alternatives reveals that the programmes were successful, with a high compliance rate at significantly lower costs than detention.

Another alternative, which has not been considered seriously in many countries, but the use of which in some countries have provided evidence of being useful is that of case management. Case management is employed to support and engage migrants in immigration processes instead of treating them as criminals or security threat. Case management can help authorities achieve high rates of compliance as seen in the results from four countries within the EU where case-management has been introduced: Cyprus, Poland, Bulgaria and the UK. In these countries, the governments have involved NGOs. In

Poland, the pilot project on inclusion of case-management techniques has also included families, applied an engagement-based case management model, and the Revised Community Assessment and Placement model developed by the International Detention Coalition, thus reducing child detention incidence. The compliance rate from Croatia is very high, which means that the alternative has proved to be successful in Poland and has also

encouraged the use of such alternatives instead of child detention model, which has such serious implications in human rights.

In the United States, the case management system has been launched in December 2015, which is called the Family Case Management Program as per which a family, that is a ‘female- headed household’ would be managed by a case manager. The case manager will undertake orientation, initial intakes, developing and updating family service plans, and connecting the participants with low-cost or pro bono service providers. The Family Case Management Program has been designed to take on 1500 families in Baltimore, Washington, New York, Miami, Chicago, and Los Angeles. This programme demonstrates how a different approach can be taken to immigrant families rather than detention of such families en masse. The case management programmes are based on the premise that family as a unit needs to be treated differently from other immigrants. Families with children are the particular focus of this programme. The system allows some control so that the administration can know the whereabouts of the immigrants within the case management programme, but the individuals are not restricted in their movement as in the case of detention. The Case Manager also helps the family to adjust in their new environments and connects them to service providers. Like in some European countries where case management has been adopted (the example of Poland is given above), the compliance rate in the case management programme in the United States has also been found to be very high. This helps to create a strong case in favour of adopting this method in more European countries so that instead of detaining families, an alternative mechanism can be adopted which allows the state to ensure compliance by the immigrants without having to detain immigrants and their children in a way that sits uncomfortably with the obligations of the states under the human rights law in Europe.

Conclusion

Immigration crisis in Europe led to more negative viewpoint towards immigrants, leading to a greater acceptance of policies like immigration detention. On the other hand, immigration detention of children is contrary to the rights of children recognised by a number of international human rights conventions. Immigration detention has severe negative impact that can be physical, emotional, or psychological. Therefore, there is a need to reconsider the use of immigration detention of children. Alternatives are already being applied in some countries but these are underused at this time, which suggests that there is a need to consider using the alternatives to a greater degree. Two alternatives that are being used more are community measures and case management, both of which are meant to be effective and cheaper than detention. The studies discussed in this dissertation

demonstrated that alternatives in countries like Poland and the United States have proven to be effective. Based on the discussion in this dissertation, it is recommended that instead of resorting to practices like immigration detention, alternatives to immigration detention be explored and applied. This would allow the states to make reasonable responses to immigration in their countries that do not put them at variance with their obligations to protect the rights and best interests of children as is the case with immigration detention. Immigration detention, as pointed out in jurisprudence developed under the ECHR should be the last resort and even when used should be least restrictive and for the shortest possible time. This being not possible to implement as cases across countries have shown, it would be more appropriate to create better structures under the alternatives discussed in this dissertation.

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Cases

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

De Tommaso v. Italy [GC], no. 43395/09, ECHR 2017

Entice v. Carrington [1765] 19 St. Tr. 1029

Flores v Barr, 2:85 cv 4544 DMG (2019).

Kanagaratnam and Others v. Belgium App no 15297/09 (ECtHR 13 December 2011).

Minneci v. Pollard, 132 S. Ct. 617, 626 (2012).

Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, ECHR (2006), Appl. No. 13178/03.

Muskhadzhiyeva and Others v. Belgium App no 41442/07 (ECtHR 19 January 2010)

Muskhadzhiyeva and Others v. Belgium Application No. 41442/07 of 2011.

Popov v France Application No 39472/07 of 2012.

Rahimi v. Greece, ECHR (2011), Appl. No. 8687/08.

Stanev v. Bulgaria [2012] ECHR 46.

Books

Ohtani E, Alternatives to Detention from theory to practice (July 2018)

Petch H, Perry J and Lukes S, How to improve services for destitute migrants (Joseph Rowntree Foundation 2015).

Schriro DB, Immigration detention overview and recommendations. Vol. 6 (Washington, DC: US Department of Homeland Security, Immigration and Customs Enforcement 2009).

Slapper G and Kelly D, The English Legal System (Taylor & Francis, 2009).

Journals

Bolborici A, ‘The immigration crisis–reflections concerning the crisis of European identity’ (2016) 9 (1) Bulletin of the Transilvania University of Braşov, Series VII: Social Sciences and Law 39.

Crawford J, Leahy S, McKee K, ‘The Immigration Act and the ‘Right to Rent’: exploring governing tensions within and beyond the state’ (2016) 10 (2) People, Place and Policy 114.

Czymara CS and Schmidt-Catran AW, ‘Refugees unwelcome? Changes in the public acceptance of immigrants and refugees in Germany in the course of Europe’s ‘immigration crisis’’ (2017) 33 (7)

Das A, ‘Immigration Detention: Information Gaps and Institutional Barriers to Reform’ (2013) 80 U. Chi. L. Rev. 137.

Gibney M, ‘Asylum and the Expansion of Deportation in the United Kingdom’ (2008) 43 (2) Government and Opposition 146.

Kalhan A, ‘Rethinking Immigration Detention’ (2010) 110 Columbia Law Review Sidebar 42.

Lavrysen L, ‘European Asylum law and the ECHR: an uneasy coexistence’ (2012) 4 Goettingen J. Int'l L. 197.

Lorek A, Ehntholt K, Nesbitt A, Wey E, Githinji C, Rossor E, and Wickramasinghe R, ‘The mental and physical health difficulties of children held within a British immigration detention center: a pilot study’ (2009) 33 (9) Child abuse & neglect 573.

Marouf FE, ‘Alternatives to immigration detention’ (2016) 38 Cardozo L. Rev. 2141.

Shahshahani A and El-Sergany AN, ‘Challenging the Practice of Solitary Confinement in Immigration Detention in Georgia and beyond’ (2012) 16 CUNY L. Rev. 243.

Sthanki M, ‘Deconstructing Detention: Structural Impunity and the Need for an Intervention’ (2012) 65 Rutgers L. Rev. 447; M. Welch, ‘Improving the Carceral Conditions of Federal Immigrant Detainees’ (2012) Harvard Law Review 1476.

Torrey PL, ‘Rethinking Immigration's Mandatory Detention Regime: Politics, Profit, and the Meaning of 'Custody' (2015) 48 U. Mich. J. L. Reform 879.

Zamani M and Zarghami A, ‘The refugee and immigration crisis in Europe: urgent action to protect the mental health of children and adolescents’ (2016) 58 (5) Journal of Adolescent Health 582.

Reports

Council of Europe’s Commissioner for Human Rights, Memorandum on the human rights of asylum seekers and immigrants in the United Kingdom (Council of Europe 2016).

International Detention Coalition, There Are Alternatives – A handbook for preventing unnecessary immigration detention (revised edition 2015).

United Nations, Global Compact for Safe, Orderly and Regular Migration, A/conf.231/3, 30 July 2018.

UNHCR, Options Paper 2: Options for governments on open reception and alternatives to detention (UNHCR 2015).

Websites

Council on Foreign Relations, ‘US Detention of Immigrant Children’ (CFR, February 10, 2020), accessed < https://www.cfr.org/backgrounder/us-detention-child-migrants>

Day L, ‘High Court grants permission to challenge Home Secretary over Dubs children’ (2016, November 4), accessed

ECtHR, ‘Factsheet – Accompanied migrant minors in detention’ (October 2019) accessed

Hyde J, “Immigration appeal hearings delayed up to nine months” (2015, October 12)

https://europe.ohchr.org/Documents/Publications/Paper-ChildImmigrationDetentionintheEU-EN.pdf>

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