The way forward! Remarks at the end of the Prague International Conference – Immigration Detention of Children: Coming to a close?

Prague 26 September 2017
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Thank you all for these two days, so rich in discussions, emotions and above all cogent arguments.

When I opened the first plenary session of the conference I told you the stories of some of the children whom I have met during my fact-finding missions as Special Representative of the CoE Secretary General on Migration and Refugees: Yvonne in Lampedusa and Arman in Röszke, one of the transit zones in Hungary. After these two days, I am wondering whether we have achieved anything to change the situation of these children. How did this conference help them? Or did it help them at all? I choose to think that it did.

Walking out of Zofin Palace this evening, I believe that each one of us will have taken with him or her some very concrete ideas about the way forward. What are the next steps towards the overarching goal of ending the migration detention of children?

I would say that we need action on the practical and the political level.

To start with the practical level, we need to consider the broader context within which the detention of migrant children happens. We have to look at different procedures that are linked to the decision to deprive members of a very vulnerable group of their liberty: procedures for providing migrant and refugee children with appropriate information on their legal status and their prospects for the future; procedures for conducting a proper age assessment; for making sure that guardians are appointed for unaccompanied minors; and for bringing about family reunification. If these other procedures work, many migrant and refugee children will not have to be detained at all.

Then we will also have to work on the political level: to convince policy makers that there are alternatives to the detention of migrant children; and show them how these alternatives can be used.

This is admittedly the more difficult part. But it is - no one in this room will have any doubts - worth trying.

What are the main arguments for alternatives to migrant detention for children? As the Director General of Human Rights and Rule of Law, Christos Giakoumopoulos, pointed out earlier on at the conference, they are cheaper; and they are less dangerous than detention. Less dangerous for the children themselves, in terms of the harm that detention inevitably causes. And less dangerous, in the long run, for our societies; the message they deliver is about containing intolerance; about decreasing social tension; and ultimately about preserving the integrity and credibility of our institutions, our belief in human rights and the rule of law, our democratic values. So it would look like a win-win situation.

But if the case for alternatives is that obvious why are not they applied to migrant children as often as we would like them to be?

Are there any fundamental objections to them? Are these objections related to the fact that alternatives are also harmful for migrant children? Or to the fact that they are not as effective as detention in terms of preventing absconding? These are arguments worth considering.

In order to address the first argument, let us examine the circumstances in which alternatives are needed. Most asylum seeking children, including those who will be reunified with their families under Dublin, would not have to be detained at all. So the question of alternatives wouldn't even arise. Unaccompanied minors are sometimes detained because the authorities consider that this is the only way of protecting them. This is certainly a case where we need to consider alternatives. And then you have children who have to be returned together with their families. Again this is a situation where alternatives have to be considered for the children and their family.

Returns are also a case where, if alternatives are shown not to be a credible solution, very short periods of detention could be admissible. If we want to convince governments we have to be realistic and pragmatic. But these periods have to be really very very short. The decision-making process must be correct, in the sense that the best interests of the child must be taken into account before the decision to detain the parents is taken. All alternatives ought to have been considered and excluded. The conditions of detention must be in accordance with international standards. And there must be safeguards against abuse. In this connection, I am pleased to inform you that I have commissioned a study on the way that complaints mechanisms against law enforcement can work in border situations.

In the circumstances described above, I hope that you will agree with me that alternatives are less harmful than detention.

Are they less effective? Not necessarily. We have been presented with different types of alternatives. Probably we have to continue thinking whether we have a sufficiently wide range of such alternatives.  But what is important is to focus on the principles that govern the process for selecting the most appropriate alternative in each case. You need proper case management, assessing the profile and needs of each individual child or family. You need to provide the child or family with all necessary information also on the consequences of absconding. And you need to choose the right alternative or rather combination of alternatives.

To do all this, it is clear that you need the right professionals: not only lawyers (also under a legal aid scheme) but also - I would say mainly - psychologists and social workers. Most importantly, you need to approach this as a process of engagement rather than enforcement. Trust between those managing the process and the migrant child is essential.

I think that with these arguments we should in principle be able to overcome the inertia that has so far prevented alternatives to child immigration detention from being widely used.

Easier said than done, sceptics might say. This is partly true. We are all aware that the road will be long. You need awareness-raising. You need to work with the media. You need legislation and capacity building, in terms of money and training. You need a coordinated approach so as not to create incentives for secondary movements, that is to say migrant children concentrating in CoE countries where alternatives are available. You also need the sharing of good practices.

Most importantly, you need an alliance of actors that will push for change. Enlightened government figures who will take the lead at European level, willing to invest in long-term solutions; parliamentary campaigns like that of PACE; lawyers prepared to initiate strategic litigation before the European Court of Human Rights, who will know how to use the case law and the interplay between the Convention and EU law. You need committed NGOs. You need to know how to place yourself in critical processes like that engaged by the UN for the global compacts in which the UNHCR is one of the major driving forces. Most importantly, you need state officials, civil servants and advisors, who will be convinced of the need for change themselves.

And last but not least you need fora where all interested actors can get together and agree on the way forward. When referring to all interested actors, I mean not only human rights defenders but also law enforcement, senior policy makers and parliamentarians, people who do not necessarily share the same point of view. What we need is genuine debate. I think that the Czech Chairmanship of the Committee of Ministers of the Council of Europe has provided us with an excellent forum for these purposes by holding the high-quality and impeccably organised conference we have all attended here yesterday and today. I am proud to have been part of it, here in my own country. And I am certainly prepared to play my own part as special representative of the CoE SG on migration and refugees to help bring the migration detention of children to a close. Getting there might not be as distant a goal as it may seem if we all work together. Thank you very much!

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