Concluding remarks by Mr. Christos Giakoumopoulos
Conference « Immigration Detention of Children: Coming to a Close? »
Prague, 25-26 September 2017
Ambassador, Ladies and Gentlemen,
We come to the end of this thought-provoking and impactful conference. Along with Tomáš Boček and Vít Schorm, I have the pleasure of sharing with you some thoughts in the form of conclusions from these exciting two days.
I would like to say from the outset that this is an unusually challenging exercise. As many of you know, “conclusions” of conferences are all too often prepared in advance. Presentations and outcomes, then, become a confirmation of our previous expectations rather than a product of dynamic and critical reflection and re-consideration.
This conference, I must admit, deprived me of foregone conclusions and other such “good practices” – the kinds of practices I have experienced as a civil servant in international organisations for more than thirty years now. In the last two days, I have repeatedly been confronted with new challenges, new arguments, and new information that made me change my mind at least twice. I hope this was the case for you too.
I am sure that all the presentations you heard during these two days – such as those of Pinar Aksu, previously detained as a child – confirm your resolve to continue investing your time and effort in a topic so central to our future. Thanks to all of you, thanks to your contributions, I can say that challenge and determination is what we felt and experienced here together in Prague.
Ladies and Gentlemen,
the immigration detention of children is a reality. In many places it is not strictly forbidden by national law, even if it is not exactly foreseen either. In international law, the situation is a bit uncertain. But soft law sources are clear. The Committee on the Rights of the Child, the United Nations High Commissioner for Refugees, the United Nations Special Rapporteur on the Human Rights of Migrants, the Commissioner for Human Rights of the Council of Europe: All of them affirm unequivocally that detention in this context can never be in the best interests of a child. And the list could go on.
In short, the immigration detention of children has raised an outcry in many places, and now at this conference.
Listening to the presentations here, I was reminded of Leo Tolstoy’s novel Resurrection, published towards the end of the 19th century. The protagonist of the novel is profoundly shocked when witnessing the cruelties of imprisonment, seeing a great number of people who have not committed any crime but are in prison as they have no passports. Innocent and guilty alike are incarcerated, including a child, robbed of human dignity.
If people were shocked by this sight in Tsarist Russia then surely we are right to be shocked that this continues today, more than a century later, in what we call the “free world.” After all, since 1945, hasn’t the image of kids in camps behind barbed wire been an unbearable sight in Europe?
Do we face a legal vacuum in the field?
An incoherence of legal standards?
A conflict between national and international law?
My answer to that would be “no”. Some might say that this is a voluntaristic approach, but I think it is not.
My starting point is Article 5.1(f) of the European Convention on Human Rights. Not because I come from the Council of Europe, but because this is probably the only significant norm in international law that binds all States in Europe and can potentially be used as to justify the detention of migrants, including children. When we look at it more closely, however, we see that the European Court of Human Rights has repeatedly found the immigration detention of children to be in breach of Article 3 of the Convention, prohibiting inhuman or degrading treatment or punishment.
In several recent cases against France – notably A.B. and Others v. France from last summer – the Court moved away from the mere consideration of the specific material conditions in which children were held, and looked into the fact of detention as such. The Court considered the harmful impact of detention on children and how this can violate the principle of the best interests of the child, to conclude that their detention was a violation of Article 3 of the European Convention on Human Rights. We have indeed heard here from different experts that because of the tremendous negative impact on health, well-being and development, it is impossible to view detention as serving a child’s best interests. We know well the opinion of the Committee on the Rights of the Child on this matter, and how that conclusion is widely echoed.
Moreover, under Article 5.1(f), the legality of detention is subject to certain conditions. In particular, there must be a strict link with the specific purpose of detention, i.e. to prevent the unauthorized entry of a person in the territory of a State Party or to secure the removal of a person from the territory. The legality of the detention will fade away if it is not strictly related to the purpose and, significantly, if that particular purpose is not pursued diligently. The detention under Article 5.1(f) should not become a penalty, and here we can clearly see the link of this provision with Article 31 of the Geneva Convention that prohibits penalisation of seeking asylum. In addition, the Court adds a “necessity test” in the case of children. If the same aim can be achieved by other means, without detention, then detention would not be compatible with the Convention.
Consequently, if we look closely at what international law lays down, I would be in favour of saying that the space for immigration detention of children is extremely narrow, and almost close to non-existent. This is particularly the case if we consider that the European Convention on Human Rights lays out minimum standards. Domestic legislation can and, in a number of cases does, go beyond this. The outcome of this Conference is indeed that domestic legislation should go beyond this!
What is, then, the concrete content of the principle according to which “immigration detention of children should, as a general rule, be avoided”? What is the concrete content of this principle? What meaning does the phrase “as a general rule” have?
The general rule is clearly that children should not be detained. If there are “exceptional circumstances” then what are these exceptions – when and how can the immigration detention of children be tolerated and permitted, if ever? And, if exceptions are actually allowed for, should these exceptions not be carefully defined?
The fact is, of course, that practices evolve. They evolve quite rapidly and so do rules and “exceptions.” There are many centres and facilities out there that go by different names. The question at the heart of the issue is whether these impose de facto deprivation of liberty. Some surely impose restrictions on the freedom of movement that do not amount to deprivation of liberty. There are “open” or “semi-open” centres, but the degree of “openness” varies from one to the next. In this context, I would like to draw your attention to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) that was just published today after a visit in Greece.
One of the things that strikes us in regard to evolving practices is also the evolving use of places. What were originally considered to be places where people would stay for a matter of hours have ended up being places where they stay for days, weeks, or even months. Accommodation facilities change over time, and places that were meant to be sites of detention might eventually be regarded as open centres.
Overall, we can think in terms of three periods of potential detention. We are speaking about detention upon arrival and before removal – and these should be extremely short periods of time. But then there is detention pending determination of the legality of the presence of the person on the territory. This is where the serious problem lies because usually this kind of detention becomes very long. It is justified by the fact that there is a registration process underway, that there is an application to be considered. Sometimes we qualify this kind of detention as ”potential removal detention’’ or “return detention’’ and tie it to the risk of absconding. This “return detention’’ may, however, take 18 months. During lengthy registration procedures, the risk of harmful and prolonged detention is clearly heightened and raises serious human rights issues. And you will see in the CPT report I just mentioned their position as regards the so called “protective detention’’.
It is during this period that alternatives to detention come into play. The question is not only what specific alternatives to consider. It is also the overall quality of the process by which migrants are engaged and involved in alternative measures. The quality of the engagement may well determine the effectiveness of the outcome.
We heard earlier today about the work of the Drafting Group on Migration and Human Rights (CDDH-MIG) on alternatives to detention. From them we heard that we need to do several things:
- We need to understand the individual circumstances and decide accordingly what measures are appropriate and effective;
- We need to provide clear information, including in a child-friendly manner, on all procedures, rights, obligations and consequences of non-compliance;
- We need to ensure meaningful access to legal advice;
- We need to build trust throughout the process towards children, with child protection as the foundation;
- We need to safeguard human dignity.
These principles are necessary in all dealings with migrant children, regardless of the outcome of their particular case. Such a nurturing approach is essential for children’s integration, if their claim is successful. Significantly, it is also essential if they return. Among other things, it assists in effecting a voluntary and dignified return if all other prospects have been ruled out. This overall approach is not just a matter of law, it is a matter of commitment as well as social and cultural engagement.
It goes without saying that effective guardianship systems and age assessment procedures are fundamental safeguards for children. Here, again, we face severe gaps and obstacles. The European Union Agency for Fundamental Rights (FRA), among other actors, has mapped this well in the context of the European Union, and the Council of Europe has recently published a new report on age assessment.
In the last two days, certain speakers also stressed that we cannot look at detention in isolation from the bigger picture. They urged us to understand the mechanisms of detention in the larger context of migration management, and to recognise the vicious cycle that feeds the risk of absconding and the perceived need to detain. When fundamental procedures are faulty or weak, they cannot be used to justify the claim that we are trying to protect children from smugglers. This larger context is linked to several issues:
- access to territory and procedures;
- implementation of family reunification policies and relocation;
- lengthy and bureaucratic processes;
- and lack of coordination.
Ladies and Gentlemen,
to see how faulty our overall approach has been, we do not need to go back a century like we did in the case of Tolstoy. It suffices to go back just several years.
In 2011, the Secretary General of the Council of Europe tried to launch a Council of Europe Action Plan to address the “possible” large-scale arrivals of mixed migration flows in Council of Europe Member States. If I had to describe the plan in three keywords, they would be:
- and Coordinate.
I think we can frankly say that we, together with Members States and other international organisations, including the European Union, completely failed. We were unprepared; we were slow; and we were messy.
Subsequently, in the midst of a crisis, we tried to find solutions under stress, in a hurry, with a sense of emergency. This, in and of itself, creates crisis – a crisis we used to call a “migration crisis” whereas a “reception crisis” might be a term that better describes the situation we face. Individually and collectively, we resorted to a number of inappropriate and ineffective measures. These included the immigration detention of children. Some speakers here have argued that such measures can increase rather than reduce trafficking and smuggling.
Is it too late to react now?
I think not. It is not too late. Our response to this reception crisis – from governments and international organisations alike – was incoherent, inefficient and selfish. It has now reached a critical level of risk as regards respect for human rights and the rule of law. If by democracy we mean not only majority rule but also respect for institutions and respect for the rule of law it also poses a risk to democracy.
Tomáš Boček highlighted certain important avenues that can overcome the present stalemate. There are practical steps that can be taken to support efforts for an effective guardianship system, speedy family reunification, and holistic, humane age-assessment procedures.
Moreover, Tomáš Boček stressed the need to provide for alternatives to detention in national legislation, and how to fight administrative inertia, political indifference, and the absence of political will. Tomáš gave some cogent arguments as to how to go about this. In ensuring results on any of these fronts, the active role of civil society is key.
We might add another central aspect, which is to reinforce domestic legal avenues and control mechanisms – including National Preventive Mechanisms (NPMs), Ombudspersons and the judiciary. This is where immediate effect can be felt. International procedures are slow and often come after the harm is done. The point, of course, is to prevent harm.
If we want to remove the question mark from the title of this Conference, and come definitely to a close of the detention of migrant children, we need to go forward on all these levels. As for the Council of Europe, we are already working on several of these fronts. This Conference will surely give even greater impetus and urgency to these on-going initiatives, namely:
- the Parliamentary Assembly of the Council of Europe (PACE) Campaign to end immigration detention of children;
- the Special Representative of the Secretary General on Migration and Refugees’ (SRSG) Action Plan on Protecting Refugee and Migrant Children, for which this was the launching event;
- the Commissioner for Human Rights’ Five step plan to abolish migrant detention;
- the work of the Committee of Experts on Administrative Detention of Migrants (CJ-DAM) on conditions of migrant detention and the CDDH-MIG work on alternatives to detention in the context of migration;
- the work of the Ad hoc Committee for the Rights of the Child (CAHENF) on standards on legal guardianship and age assessment as well as protective measures against trafficking in human beings.
We heard a great deal about the significant work of FRA in the field, such as its most recent report on European legal and policy framework on immigration detention of children. This is soon to be complemented by a PACE Study of immigration detention practices and the use of alternatives to immigration detention of children, with a focus on non-EU Council of Europe Member States. We also heard about the varied UN strategies in the field, where the space for synergy and concerted effort is evident.
Viewing the field so openly, as we have done in these past two days, we are also compelled to come to the conclusion that Europe needs to look beyond itself. When it comes to the immigration detention of children, we have a lot to learn from others. There are plenty of good examples out there. Some of the best ones may be found elsewhere in the world.
Ladies and Gentlemen,
in closing, let me again thank the Czech authorities for their welcoming spirit and their superb organisation of this event. You have been brave in your choice of topic and you have succeeded in strengthening our collective resolve and commitment in the field. I would like to thank in particular Minister Pelikán, Vít Schorm, Viktor Kundrák, Ota Hlinomaz, Petr Konůpka and Eliška Hodysová for all their hard work, and for their close and constructive cooperation with my colleagues within the Directorate of Human Rights and the Office of the Special Representative of the Secretary General on Migration and Refugees.
I believe that this Conference, and the inspiration it has given to all those present, may signal the start of a ‘reverse’ process that will seek to secure human rights, the rule of law, and democracy. It should be a process that reduces the unnecessary suffering of the most vulnerable among us, and strengthens trust in our common values. In due course, I think it would become appropriate to call such a development “the Prague Conference Process”.
The picture of a child behind bars and barbed wire was unthinkable in this part of the world for many years. Unfortunately, it is now invading our lives again, and we may even be getting used to it. We cannot allow that to happen.
Detention cannot be the rule in societies that call themselves free, that value liberty and security, and that oppose obscurantism and fear.
Thank you very much.