Informations
about minors in detention
Great Britain |
Belgium | Spain
| France | Italy | Netherlands
...
Separated
children in Europe programme - The situation of separated children in
central Europe and the baltic States, by William Spindler, Save The
Children.
In Great Britain
Report of Save the Children, No place for a child, Children in UK immigration
detention : Impacts, alternatives and safeguards 28/02/2005.
Numbers and length of time in detention
The report estimates that around 2,000 children are detained with their families every year for the purpose of immigration control. There is no government data on the number of cases in which the age of an asylum applicant is disputed and detained. Current UK policy and practice means that children can and do remain in detention for lengthy periods. In the cases that were studied, the length of detention varied considerably from 7 days to 268 days. Half (16) of all cases looked at were detained for more than 28 days.
Download
executive summary
Download
full report
Campaign No place for a child : http://www.noplaceforachild.org/
In Belgium
Campagne du CIRE
Des enfants en centres fermés ? nous disons « NON »
! : http://www.cire.irisnet.be/enfantsenfermes/
(French).
Between 1000 and 2000 unaccompanied foreign children arrive in Belgium
each year.
The Foreigner's Office can decide to hold minors arriving at the borders,
and to whom the access to the Belgian territory has been refused. These
minors are kept in closed centers (center INAD, centers 127 and 127bis...).
They can refer about the legality of this decision to a judge.
According to a law passed in May 2004, a tutor is designated for each
unaccompanied minor arriving in Belgium. The legal representative's mission
is to stand for the minor in all judicial act and judicial or administrative
procedures.
When authorities have doubts about the minority, they use a medical test
to certify the child age.
Specialized lawyers have also been offering their services, as soon as
a decision is taken to hold a minor in a closed center. The barrister
of the day follows the child and helps him/her in every step of the procedure,
from the asylum application to the residency regularization.
Unaccompanied minors can be immediately expelled and are hold, for up
to 3 days, in INAD centers. There are also concrete exemple of situations
where the police has kept them instead in staging area.
In November 2003, a judge (juge des référés de Bruxelles)
has forbidden the expulsion of unaccompanied minors without guaranties
of appropriate care in the country of return, and has also reminded the
restrictive principles related to minors' liberty deprivation. As a result,
the Foreigner's Office, within which an "unaccompanied minors unit"
has been set up, delivers a temporary residence card, which is effective
until enough information is collected about the family in the country
of origin.
Unaccompanied children who seek asylum, alone or throughout their tutor
or lawyer, are globally treated as adults: examination of the "manifestly
unfounded" caracter of the application at the country’s border,
detention in closed centers for an unlimited time period. They are deprived
of their liberty, without being separated from adults and are prevented
from a direct access to the Belgian territory.
These centers are inadequate for children and do not meet their fundamental
rights: access to education, leisure and outdoor activities, violation
of the right to respect family life...
In Center 127, visits of relatives are prohibited and children stay with
adults : they sleep in common dormitories!
In the Brussels Airport INAD Center, visits of families, lawyers and doctors
are forbidden and no outdoor access is allowed.
When minors are accompanied or with their family, they are kept with adults.
New closed centers have even been built to increase the hosting capacity
of families with children.
But authorities do not hesitate to separate children from parents refusing
the expulsion.
CIRE's website
(French).
In Spain
Situation of the Isolated Alien Minor (IAM) in Spain
1/
definition of IAM in Spain
Reading the article 172 of the civil code as interpreted by courts of
law, the IAM, who finds himself on the Spanish territory without the
company of an adult in charge, who really exercises over him guardian's
responsibility, is in danger, if is noticed :
- inadequate exercise by tutors of their duty of protection
- a lack of required moral and material assistance
From this definition, follows the automatic Civil Service guardianship
followed by a regularisation of this administrative situation, in a
maximum of 9 months.
2/ Institutional care system in Spain
In Spain, Child protection incumbents upon the Independent Communities,
hence really diverse legislations and situations on the Iberian Peninsula,
while policy on immigration is national and goes to the Home Office.
The Attorney should protect the childs interests and rights throughout
the procedure of administrative protection.
The judge does not intervene in the procedure.
3/ Tension between repression and protection
The juridical characterisation of an IAM is determined by a dual negative
consideration : he is a minor and an alien.
Appears thereby the contradiction between two logics: one which must
protect the child in danger, without any discrimination based on nationality
or administrative situation (Child Protection Law) and another which
expels them (Immigration Law) referring to border controls and migration
flows' regulation.
Minors are then treated as illegal migrants and not as minors in danger.
This means that IAM's phenomenon is only dealt with in terms of ordered
management of migration flows from prism of security and of struggle
against illegal immigration.
Yet, the organic law 1/96 says that " the best interest" of
the child will have to surpass any other legitimate interest.
4/ violations of fundamental rights of the child
A minor does not enjoy any juridical independent representation.
He has no right to be assisted by a barrister nor the right to a judge.
His only possibility, via his guardian (Civil Service) or the “Defender
of Children” is to contact ..... the Civil Service. The civil
service plays the dual role of protector and repressor, since it decides
on his possible repatriation, which clearly is a conflict of interest.
5/ Repatriation without warranties
In certain Independent Communities (Madrid, Catalonia), we assist at
minors's expulsions, under the appearance of "family gathering",
but without respecting the guaranties offered by national and international
legislation.
Such gatherings, supposedly dictated by the proper "best interest"
of the child and his "right to family life", are in fact hidden
expulsions, which try to cover up the Spanish State incapacity and its
lack of political will to address the thorny immigration's problem according
to a non repressive perspective.
6/ Social alarm generated by the media and public authorities
Using an alarming approach on the immigrants' « flow” the
country must face everyday, governments of certain Independent Communities
(Andalusia) manipulates data to launch contradictory messages to public
opinion, arising distrust and fear in the civil society.
This social alarm could be used, especially in Andalusia, to justify
a policy of IAM's expulsion, under the pretext of « gathering
them in their interest” and to answer a situation of “overloading”
in the care centers.
Spain thus assumes that the lack of economical resources and of infrastructures
be a criteria for repatriation of children under State guardianship
and the sovereign right of Spain to control migration flows is superior
than fundamental rights of IAM. APDHA's document on the situation of
isolated minors in Spain.
Document de l'APDHA
sur la situation des mineurs isolés en Espagne (French).
APDHA,
Migraciones y derechos del Menor Extranjero No Acompañado (MENA)
(Spanish).
Procédure
de protection du mineur isolé étranger
(French).
APDHA's website (Spanish).
CEAR,
Letra al Comité de Derechos del Niño de Naciones Unidas
que resume la situación actual (Spanish).
CEAR's website
(Spanish).
In France
Waiting area
The observations below derived from the Anafé's experience in waiting area in 2004 and 2005.
Since the organization is regularly present in the waiting area of Roissy CDG Airport, Anafé gives special heed to isolated minors’ situation, whose juridical regime has been deeply modified since the introduction of the “administrateur ad hoc” as a result its mission is to intervene on their side, in order to assure them a legal representation in juridical and administrative proceedings pertaining to their containment in waiting areas and their admission on the territory.
Minors are kept in centers together with adults (except minors under 13, who are kept in a different place). The maximum length of containment is 20 days.
In 2004, more than 609 minors had been held in waiting area. 444 minors have been, in principle, expelled to their country of origine. 231 were asylum seekers.
In 2005, 780 isolated minors, among whom 101 were under 13, have been held in waiting areas in France ; 500 have been expelled.
The same year, 182 minors have asked for asylum at the border. Only 12,6% of these applications have reached decision of admission on the territory (21 minors) against 22,2% for adults.
The number of minors in waiting area and notably (this is not confirmed by above mentionned figures) of asylum seekers has fallen because the governement wants to favor migration flows’ control at the expense of welcome and protection of foreigners and asylum seekers in particular. These past years, the multiplication of measures taken to limit arrivals at the border and access to the territory strengthens greatly this tendancy; these mesures include among others: introduction of transit visas for citizens of an ever higher number of states, establishment of linkage officiers, carriers’ sanctions, generalisation of “controls at the doors of the plane”, a too broad interpretation of the notion of “asylum application at the border”.
Wherever they come from, young foreigners met in waiting area, do not enjoy concretely, the particular protective statuts which is due to them.
For several years, Anafé asserts, in numerous interventions addressed to competent authorities and the press, the situation of danger in which these isolated minors, by definition, find themselves. This danger is flagrant when they are asylum seekers, fleeing their country after having been threatened ou persecuted, separated from their parents, often having witnessed assassinations or traumatising disappearances. It is clear for minors deprived of the essential support at this age and in their situation. For this reason alone, their immediate fate should be considered in detail, by authorities with sufficiant and adequate means for each case. For many years, Anafé stressed in several intervention the endangered situation of this isolated minors to authorities and the press. During its 2004 session, the Committee of the rights of the child was concerned that “unaccompanied children arriving at the airport may be returned to the country of origin without judicial intervention and without an evaluation of their family situation”.
Because they must be protected from these threats, unaccompanied minors should automatically benefit from the judicial protection mechanism of childhood in danger, which implies their admission to the territory. These are the reasons for which Anafé, along with other institutions, notably the United Nations High Commissioner for Refugees (UNHCR), the “Defender of Children” or the National Advisory Commission for Human Rights (CNCDH), has publicly asked for immediat access of isolated minors to the French territory.
The dysfunctions of the procedure of holding aliens at the border, regularly reported by Anafé, do not spare minors: interpreting problems, incomprehension of procedures, inadapted premises, asylum application considered as “manifestly ill-founded”, physical and moral violences, concerns them as much as they do adults.
But, above all, the appreciation of the situation of minors rest, in waiting area, in the hands of the border police and is done expeditiously. Consequently, competent authorities do not always have the opportunity to intervene, especially the judge sitting in juvenile courts, who is meant to deal with danger threatening children. Often, these are expelled before having the time to explain in details and with serenity their situation in front of the judge of freedom and detention, whereas his mission is to protect individual liberty.
In this context, the institution, since September 2003, of an ”administrateur ad hoc” assisting isolated minors held in waiting area is far from answering the needs of the situation. Today like yesterday, in waiting area, objectives of migration flows’ control surpass respect of specific rights due to minors.
Entire families are also kept in waiting area. For example, in May 2006, a Palestinian family, not admitted on the basis of asylum, was composed of the father, the mother (5 months into pregnancy) and three children from 1 to 5-year-old.
Une
résolution de l’Anafé condamne tout placement de mineurs
en zone d’attente, juin 2005 (French).
Statistiques
relatives au maintien des mineurs isolés dans les zones d'attente
(French).
Anafé's
website (French).
For more informations about minors in "centre de retention"
: www.assezdhumiliation.org
Cimade's website
(French).
In Italy
ARCI's website (Italian).
Amnesty
International Italy : Invisible children - The human rights of migrant
and asylum-seeking minors detained upon arrival at the maritime border
in Italy (en anglais).
This document is a summary of a longer report which examines the conditions
faced by migrant and asylum-seeking minors held in immigration detention
upon arrival at Italy’s maritime borders. It begins with an outline
of the relevant international and domestic legal safeguards which apply
to migrant and asylum-seeking minors in immigration detention, followed
by an analysis of the reality on the ground based on case studies carried
out by Amnesty International. For the purposes of this summary, children
or minors are considered to be below the age of 18 years.
Conseil
de l'Europe, 20 septembre 2005, Accueil des mineurs étrangers non
accompagnés en Italie (French).
In Netherlands
When considered illegal immigrants and under an expulsion order, aliens are kept in detention or expulsion centres. When they are stopped at the border and prevented from entering on the Dutch territory, they are held for the time of the procedure (for example asylum procedure) in border hospices or at the report centre of Amsterdam Schiphol Airport.
They are locked up in cells, sometimes all night long (from 4.45 p.m. to 8 a.m) and doors do not open automatically when the fire alarm sounds. They hardly have access to a garden or an outdoor place.
Even though it is possible to lodge an appeal against the duration of the detention, there are no legal time limit. Consequently, aliens may be detained for months, and there is no idication that the trend will change.
Children,
whether accompanied or unaccompanied, are also kept in these centers under
the same procedure. There is no specific legislation. In July, about 50
children were being detained, but this number fluctuates.
The family cells are not protected. Sometimes, the parents can chose either
to to keep their children with them in the center or to leave them outside
(the two eldest children of the Family G. have been cared for by a foster
family whereas the youngest two have been detained with their parents,
for at least 3 months).
But separation can also result from official decisions (B. K., after having
been detained for 5 months with her parents and brothers, has been released,
alone).
A guardian is not immediatly assigned to unaccompanied minors.
The staff’s centers are usually inadequately trained to deal with children, the living conditions are not child-friendly and their rights to education, leisure, recreation, play and medical care are generally ignored. Children can hardly have outdoors activities.
Each center has its own rules regarding the size of rooms and furniture, special care for children under 13, daytime activities or access to school. Transfers from a center to another are imposed by the administration.
To hold them in these centers for an extremely long period of time is hardly understandable insomuch as the outcome is not consistently expulsion or admission on the territory: J., an unaccompanied minor seeking asylum, has been held for 6 months and released without any attempt of expulsion, he was only requested to leave the country within 24 hours.
No help is provided to unaccompanied or accompanied children, to whom
refugee status has been refused, to prepare their return.
The governmental project fails completely since a huge majority of children disappear underground. Whereas, when alternative programs like “the Dutch Council for Refugees”, the International Network of Local Initiatives on behalf of Asylum seekers or the Utrecht project “Perspective”, assist these young people to prepare their future in their countries of origin, a quarter of them return voluntarily.
Documents of Kerkinactie Binnenland
Website : http://www.geenkindindecel.nl
(Dutch).
Kerkinactie
Binnenland's website (Dutch).