IBAHRI makes recommendations on ending detention of migrant children to UN Special Rapporteur

The International Bar Association’s Human Rights Institute (IBAHRI) has submitted a report to the United Nations Special Rapporteur on Human Rights of Migrants, Mr Felipe González Morales, with a view to informing his next report on Ending immigration detention of children and seeking adequate reception and care for them. The IBAHRI’s submission was put forward on 30 April 2020 and Mr Gonzales Morales’ report will be submitted to the UN General Assembly in September. The submission from the IBAHRI makes 13 main recommendations to UN Member States, addressing different challenges to effectively end the detention of migrant children.

Globally, the number of accompanied, unaccompanied and separated child migrants has been increasing for a number of years, and accounts for between 40 to 50 per cent of the world refugee population each year. For the vast majority of these children, detention is still a reality and conditions are far from being child-rights compliant.

The International Bar Association (IBA) is committed to working towards ending child immigration detention. In 2019, the incumbent IBA President, Horacio Bernardes Neto, established the IBA Presidential Task Force on the Refugees Crisis Initiative. Under this remit, two reports were published: A Child Rights Response to Child Migration and Migrant Children at Risk and A Model Instrument for an Emergency Evacuation Visa. The former, authored by Siobhán Mullally and Claire Raissian from the Irish Centre for Human Rights, largely informed the IBAHRI submission to the UN Special Rapporteur on Human Rights of Migrants.

Mr Bernardes Neto commented: ‘During my presidency of the IBA I have been committed to bringing to the forefront of the legal community the need to protect child migrants and fill the gaps in international law. Immigration detention is permissible under certain conditions, as a “measure of last resort,” as per Article 37(b) of the Convention on the Rights of the Child. However, States have abused this “last resort” measure, implementing immigration detention when these conditions have evidently not been met. International law should forbid any kind of child immigration detention and such prohibition should be fully implemented in practice.’

The IBAHRI submission calls for a clear prohibition of children detention across the world and discrimination amongst children at a domestic level. A number of good practices are exemplified in the submission that reflect the significant role of civil society, sometimes acting in partnerships with States. However, the IBAHRI report also highlights the numerous challenges preventing migrant children from reaching safe accommodation. Political inaction, insufficient data availability at borders, lack of trained staff to identify children and a dearth of suitable accommodation, all pose problems for children attempting to migrate safely.

Regarding responses to crises or emergencies that could foreseeably lead to an increase in child migration or cause migrants to be at greater risk, the IBAHRI submission calls upon states to:

• uphold special protections afforded to child migrants under international law;
• expand safe and legal pathways to migration, in particular for children;
• increase the refugee resettlement quota to respond to actual estimates of children on the move, and particularly so in times of crisis;
• ensure that migrants have access to safe living conditions, with specific measures put in place for vulnerable groups, like children; and
• never take the pretext of a situation of emergency, such as a pandemic, to apply forced return or refoulement in violation of international law, reduce resettlement quotas or freeze asylum applications.

The Committee on the Rights of the Child has repeatedly reaffirmed that: ‘to the greatest extent possible, and always using the least restrictive means necessary, States should adopt alternatives to detention that fulfil the best interests of the child, along with their rights to liberty and family life through legislation, policy and practices that allow children to remain with family members and/or guardians… and be accommodated as a family in non-custodial, community-based contexts while their immigration status is being resolved.’

IBAHRI Director, Baroness Helena Kennedy QC, commented: ‘The submission comes during a time when we are seeing greater risk to refugees and to those in immigration detention because of the COVID-19 pandemic. Refugees who are unable to properly socially isolate in often inadequate conditions, without access to accurate information, may be disproportionately impacted by the virus. This problem is exacerbated by the fact that countries all over the world have closed their borders. The need to end child immigration detention is now more urgent than ever. The IBAHRI report follows some steps taken globally to do so and makes recommendations on progress yet to be made.’

ENDS

Notes to the Editor

1. Click Here to download a PDF of the IBAHRI submission to the UN Special Rapporteur on Human Rights of Migrants:
   www.ibanet.org/MediaHandler?id=61fb3b50-f1e2-4d4f-8b3b-771e7ea7c9ca
2. The Taskforce on the Refugee Crisis Initiative was formed by the IBA to highlight the difficulties faced by refugee and migrant unaccompanied children. Championed by IBA President Horacio Bernardes Neto, the showcase resulted in two reports. More information is available here: www.ibanet.org/Committees/task_force
3. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice. The International Bar Association’s Human Rights Institute (IBAHRI), an autonomous and financially independent entity, works to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.

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