The UN Global Compacts on Refugees and Migrants need to include an accountable way to end immigration detention for children.
“I was five when we came” said a young Afghani girl, detained in Australia. She speaks with that broad roll, distinctive of Australian accents. Even though she has travelled from a country on the other side of the world, she has now been in immigration detention in Australia long enough for it to have changed her speech: “we’ve been here for three years, so for a pretty long time.”
“Why are they treating us like criminals when we’ve done nothing wrong?” These are the words of Emir, 16, held in Moria detention centre on the Greek island of Lesvos. Having survived a life-threatening journey from Syria, Emir is now unable to leave the facilities.
Yes, you read that correctly: a five year old girl has spent three years of her childhood behind bars and a young boy is being kept in detention in the heart of Europe after experiencing war, crossing multiple borders alone, and risking his life in dangerous sea crossing. The reason? They did not have the correct travel papers. Unfortunately, these are not isolated stories, and we at the Campaign to End Immigration Detention of Children and Save the Children have heard many of them.
Why are they treating us like criminals when we’ve done nothing wrong?
– Emir, 16
Children on the move are constantly living in fear of being detained or going through the traumatic experience of detention.
Somehow this practice became one of the most contentious lobbying points of the entire New York Declaration, when it was negotiated at the UN last summer. So contentious in fact, that it threatened to derail the entire process. On the one hand there were states fiercely committed to maintaining the right to detain migrant children and families. On the other, states seeking to categorically prohibit the practice. The latter pointed to clear evidence that immigration detention harms children, and to clear calls from the international community that the practice is a violation of children’s rights. In the end, a disappointing compromise was struck – states would “work to end” the practice, but would not commit to ending it outright.
Clear evidence: immigration detention harms children
Immigration detention is no place for a child. Regardless of the conditions in which children are held, a number of studies have shown that detention has a profound and negative impact on children’s health, language, and academic development.
Even very short periods of detention can undermine child psychological and physical well-being and compromise their cognitive development. Additionally, the impact on children’s mental health increases the longer detention persists. Children held in detention are at risk of suffering depression and anxiety, and frequently exhibit symptoms consistent with post-traumatic stress disorder (PTSD) such as insomnia, nightmares, and bedwetting. Feelings of hopelessness and frustration can manifest as acts of violence against themselves or others.
Children in immigration detention have been tied up, gagged, beaten with sticks, burned with cigarettes, given electric shocks, and placed in solitary confinement.
Reports on the effects of immigration detention on children have found excessive rates of suicide, suicide attempts, self-harm, mental disorders and developmental problems, including severe attachment disorder. According to the UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, children in immigration detention have been tied up, gagged, beaten with sticks, burned with cigarettes, given electric shocks, and placed in solitary confinement, causing severe anxiety and mental harm. In addition, the special rapporteur has noted that many child migrants suffer appalling and inhuman conditions while detained, including: overcrowding, inappropriate food, insufficient access to drinking water, unsanitary conditions, lack of adequate medical attention, irregular access to washing and sanitary facilities and to hygiene products, lack of appropriate accommodation and other basic necessities.
Furthermore, the UN Committee on the Rights of the Child (the CRC committee for short) devoted significant attention to immigration detention in its 2012 report, finding that the detention of children based on their or their parents’ migration status is never in the best interests of the child and therefore constitutes a clear child rights violation. It has reiterated this opinion in its later publications.
The opinion of the CRC committee about ending child immigration detention is one that has been mirrored by many eminent experts in international law. The 2016 report of the UN secretary-general 'In safety and dignity: addressing large movements of refugees and migrants’ paved the way for the New York Declaration and the call for global compacts on refugees and migrants, in which all 193 UN member states unanimously committed to work to end the immigration detention of children. At the end of January 2017, the commissioner of human rights at the Council of Europe also reiterated how harmful immigration detention is for children and the need for states to present a roadmap and firm deadline for the abolition of child detention.
A united call from civil society
Civil society has found through significant research and reporting that immigration detention is never in the best interests of a child, and has lobbied state policy makers to end the immigration detention of children as a matter of priority.
The most prominent example of effective civil society partnership and collaboration can be seen in the Inter-Agency Working Group (IAWG) to End Child Immigration Detention, established in 2014. The IAWG is comprised of thirty prominent UN, intergovernmental, and civil society representatives who collectively represent stakeholders in every country of the world. Civil society coordination around the issue is also led by the Global Campaign to End Child Immigration Detention, with over 120 organisations in support worldwide.
Together, the members of the IAWG have committed to assisting states to “expeditiously and completely” end the practice of child immigration detention, consistent with their commitments under the UN Convention on the Rights of the Child. They are collectively calling upon states to end the immigration detention of children and families, and to instead invest in more humane migration and border management alternatives.
Other parts of civil society have issued similar calls for the categorical prohibition on the use of detention for migrant children and families though action statements such as the Guiding Principles for Children on the Move, and the civil society response and scorecard for the UN High-level Summit on Refugees and Migrants.
Time for common sense: states need to implement alternatives to immigration detention
Protecting children and families on the move requires a fundamentally different way of approaching the governance of migration. Community engagement and a human rights-based perspective can and should be at the heart of migration governance. Building trust, respecting the best interests of the child, valuing the dignity of the child, and providing a fair, transparent process are the fundamental building blocks of such an alternative approach.
The good news is that many alternatives to immigration detention already exist. They are more affordable, effective and humane approaches to migration governance that allow states to achieve policy goals without harming the health and well-being of children or violating child rights. Alternative approaches include enabling migrant children to access existing national child protection mechanisms. This approach fosters efficiency and expertise in dealing with the specific needs of children, and has the potential to strengthen national child protection systems at the same time as protecting migrant children.
Protecting children and families on the move requires a fundamentally different way of approaching the governance of migration.
A number of states have already begun implementing effective alternatives for children and families, proving that providing appropriate accommodation and care to child migrants is not antithetical to meeting security and other regulatory concerns. Given that states have now committed to finalising both global compacts by the end of 2018, now is an ideal time for them to begin to make the switch to alternatives to detention. It’s not rocket science, it’s common sense. There are a number of ways in which states can work to end the detention of children.
Amending legislation is a key step to achieving change. In Ireland, for example, the International Protection Act 2015 provides for immigration detention of foreigners, but it also prevents the detention of children, stating “[detention] shall not apply to a person who has not attained the age of 18 years”. In Panama, Article 93 of Panama’s Decree Law No. 3 of 2008 provides for the detention of foreigners who have violated immigration laws. However, the law prevents the detention of children, stating that “only those over eighteen years of age may stay [in a detention centre]”. These are just two of many laws, policies and practices around the world that work to protect the rights of children.
Pilot programmes can also be put in place, to assess if alternatives are of value. In Mexico, a pilot project for unaccompanied children saw their release from detention into an alternative care programme. Instead of being in harmful immigration detention, children were ensured freedom of movement, access to education and healthcare, and communication with family. Since the pilot, international experts such as UNICEF and UNHCR, as well as the new Federal Child Rights Protection Agency, have engaged in working group meetings in order to continue learning together and building upon this initiative.
Other concrete examples of promising practices exist in various regions. In Indonesia, for example, the capacity of shelters operated by international and local NGOs for unaccompanied and separated children seeking asylum increased to 250 places in 2015. In Cyprus three shelters for unaccompanied minors have been put in place: two operated by the government and one by a local NGO. The NGO shelter was established in 2008 and provides food, legal advice, psychosocial support, family location services, and support to access school.
As organisations that have worked closely with children who are or have been detained, such as the young girl who has spent three years of her life behind bars, or Emir who was in detention in Greece, we have seen the devastating impact detention has on children. It seems absurd that in this day and age we continue to have this debate. While the examples of alternatives to detention being piloted are good news, it is crucial that these don’t remain isolated examples of promising practice. It is time to commit to programmes that are able to go far beyond the numbers currently reached.
At this very moment, millions of children live with the very real fear of being detained and it has already happened to far too many. We need to do more. It can be done and it would make a huge difference in children’s lives now and in their future. It’s time for a clear roadmap for states to end child immigration detention.
JULIA O’CONNELL DAVIDSON
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