One Year Later: Child Immigration Detention Continues Despite Promising Commitments by State Leaders

by Mahalia Kahsay, Second-year student at the University of Michigan Law School, Associate Editor of RefLaw.org.

Within the past decade, non-governmental organizations and human rights advocates have increased advocacy efforts to end child[1] immigration detention worldwide. They brought the issue of child immigration detention to sympathetic governments whose initial positive reactions have been followed by lackluster actions. This note explores the worldwide child detention regime and credits state actors for their newfound commitment to addressing child immigration detention. However, actual progress towards achieving an end to child detention leaves civil society and vulnerable children wanting. Minor improvements remain overshadowed by States’ continual practice of child immigration detention; the practice continues despite being inconsistent with international law.

Strategy Behind Campaigns Against Child Immigration Detention

Stakeholders at every level realize that addressing child detention is a strategic way to bring immigration detention issues to the forefront of human rights discussions. Ten years ago, few major campaigns to the end the detention of refugees and asylum seekers existed. Now, powerful and well-known campaigns and NGOs pushing for the end of child immigration detention include End Immigration Detention of Children, founded in 2012 and the International Detention Coalition, organized within the last six years.

The reason these groups focus on children is twofold. Evidence of the moral evil and negative effects of child detention abound, from children in the United States who have spent a significant portion of their lives behind bars, to children detained indefinitely in Thailand without adequate access to education. Focusing on children is also strategic because children are viewed as more sympathetic “victims” of detention. Governments unwilling to change adult detention systems are more open to discussion when “innocent” children are involved. For example, President Nieto of Mexico announced at the UN Summit in NY in 2016 that Mexico will “develop alternatives to immigration detention for asylum seekers, particularly children.” States also often apply more lenient immigration laws when children are involved. In the United States, for example, the Trafficking Victims Protection Reauthorization Act of 2008 grants an unaccompanied minor the right to apply for asylum at any time. Unaccompanied minors are not required to apply for asylum within one year of arrival, a requirement applied to all other asylum applicants.[2]

In regard to child immigration detention, the New York Declaration (“Declaration”) and UNCHR’s Global Strategy – Beyond Detention 2014-2019 (“Global Strategy”) are arguably the two most far-reaching, high-level commitments to ending the immigration detention of children. Their timely approval and adoption by government leaders occurred amidst heavy campaigning by civil society organizations who pointed to increasingly high numbers of child migrants and detainees worldwide.

At the end of 2013, UNHCR recognized approximately 16.7 million refugees and 1.2 million asylum seekers; children represented half of this total refugee population, the highest in a decade. Throughout 2013, unaccompanied minors filed over 24,000 new individual asylum applications in seventy-seven countries, constituting four percent of the total asylum claims in these countries.

Child Detention Around the World in 2013 and 2014

As for detention practices, UNHCR provides some child detention statistics in its statistical yearbook. In 2013, according to UNCHR’s 25 Years of Global Displacement, over 3.2 million refugees lived in a planned or managed camp, and over 250,000 lived in collective centers. Children comprised fifty-six percent of the refugees in these camps and thirty-five percent of refugees living in collective centers. Thus, at the end of 2013, approximately 107,000 children lived in collective centers worldwide. These collective centers are defined to include both self-settled urban accommodation and government sponsored mass shelters used for temporary purposes, making it difficult to ascertain whether living in a collective center always qualifies as detention.

Importantly, these refugee children were not detained in equal numbers across countries and continents. According to UNHCR statistical data, at the end of 2013 in Eastern Europe, Montenegro and Serbia held 720 and held 414 respectively in collective centers. In Africa in 2013, Ethiopia held 1,360 children at reception/transit camps, while Rwanda held 5,172 children in similar camps. In Oceania in March 2014, the Australian Human Rights Commission reported 1068 children held children in detention centers in Australia, Christmas Island and Nauru. In Southeast Asia in 2014 Save the Children reported 1,795 children held in detention centers in Indonesia and 1,334 in Malaysia.

Western countries also detained varying numbers of children, ranging from as few as fifteen in Germany in 2013 to as many as 4,507 children in France in 2016. The United States does not report the number of children in detention, but reported a daily total immigration detention population in 2014 that ranged from 33,000-34,000. Because children were detained alongside their parents in centers licensed for childcare, it is likely that hundreds of minors were among the 30,000+ immigration detainees in the United States at the end of 2013. Unlike North America, many South American countries, such as Argentina, Bolivia, Brazil, Peru, and Chile “almost never” or hardly ever detain migrants.

Global Response to Child Immigration Detention: State Leaders Commit to High-Level Plan to Address The Plight of Thousands of Children Detained Worldwide

In response to these problematic statistics and a growing global immigration detention scheme, UNHCR recognized the need for a concerted push against child detention and launched the Global Strategy in 2014 to address the detention of refugees and asylum seekers worldwide. The Global Strategy identified the end of child detention as the number one goal of the project. It also called for not only the immediate release of all detained children, but also the required legal and policy changes to ensure that “the best interests of the child prevail.”

World leaders joined UNHCR to make similar high-level commitments to ending the immigration detention of children in September 2016 at the UN Summit for Refugees and Migrants (“Summit”). The UN General Assembly hosted this Summit in New York City. The first of its kind, the summit brought world leaders together to address mass global migration and create an internationally agreed upon system to respond to large movements of refugees.

In response to the Summit’s call for joint action, world leaders from 193 member states unanimously adopted the Declaration. This Declaration not only called for dramatic changes to the current refugee processing and burden sharing system, it also specifically addressed the needs of child refugees and asylum seekers. In signing the Declaration, member states committed to “pursue alternatives to detention” and “strive to provide refugee and migrant children with a nurturing environment for the full realization of their rights and capabilities.”

Even though protecting children is a priority for government leaders, their commitment at the Summit to reducing the detention of children was not more expansive. The Declaration addressed child immigration detention with the following commitment:

recognizing that detention for the purposes of determining migration status is seldom, if ever, in the best interest of the child, we will use it only as a measure of last resort, in the least restrictive setting, for the shortest possible period of time, under conditions that respect their human rights and in a manner that takes into account, as a primary consideration, the best interest of the child, and we will work towards the ending of this practice.

This “will work towards” attitude is neither immediate nor firm. Instead, this lack of a concrete commitment reflects the dissonance between local advocates calling for an end to child detention practices, and states’ hesitancy to implement immigration detention systems that do not detain children.

Despite this hesitancy, the Declaration assigned UNHCR the task of initiating development for a comprehensive refugee response framework. The Declaration calls for a comprehensive refugee response framework “to better protect and assist refugees and to support the host States and communities involved.” The Declaration requires this framework use a multi-stakeholder approach to include a variety of traditional and nontraditional actors, including national authorities, international financial organizations, academia, the private sector, and refugees themselves. In addition to creating the framework, the Declaration tasked UNHCR with incorporating the framework in national development planning and provide adequate resources for host country officials to implement the plans.

As a result, the Declaration itself is not a final agreement or commitment. Rather, it is a first step towards future negotiations and the adoption of a global compact in 2018 by the same UN members who participated in the Summit. At the Summit these members agreed to include in the compact a set of common principles and approaches for “safe, orderly, and regular” migration. Members also agreed to divide refugee hosting and resettlement responsibilities more equitably amongst themselves. So, effectively, the call to work towards ending child detention has been made, but the principles and approaches, let alone the proposed policies or laws, have yet to be discussed.

Civil Society Condemns Declaration’s Failure to Completely Renounce Child Detention

Despite the Summit’s hopeful vision and the Global Strategy’s ambitious plans, civil society organizations have responded critically in light of current conditions. The International Detention Coalition (“Coalition”) is the only network of civil society organizations worldwide focused specifically the harmful effects of detention; the Coalition primarily advocates for more humane, efficient, and cost-effective alternatives to detention. This Coalition found the Declaration lacking because “the final language of the NY Declaration backslides on a number of existing rights and standards.” The Coalition further concluded that the Declaration problematically referred “to the detention of children as a ‘last resort’ yet fail[ed] to clarify that detention that is based on the immigration status of a child or their parents/guardians… is always a child rights violation, and is never in a child’s best interest.” The Coalition found that the Declaration served as a “reminder that our role as civil society is to remain vigilant on this issue, to pursue the fundamental rights for those who are vulnerable and voiceless in our society.”

Progress Report: Minor improvements overshadowed by number of children still detained

Critiques regarding the impact of Declaration and Global Strategy are well-founded. UNHCR’s Progress Report noted only minor improvements two years into the five-year long Global Strategy. Only two of the twelve monitored countries—Israel and Lithuania—ceased the detention of children altogether. Nevertheless, the report found some positive improvements. Importantly there has been a fourteen percent decrease in the number of children detained throughout 2015 in the countries of focus: Canada, Hungary, Indonesia, Israel, Lithuania, Malaysia, Malta, Mexico, Thailand, the United Kingdom, the United States and Zambia. Additionally, Mexico and Malta adopted protective laws to ensure that children are not detained. Lastly, Indonesia, Mexico, and the United States initiated pilot projects for alternatives to detention for children and families.

Of the fourteen countries of focus, the Progress Report identified Indonesia, Malaysia, and Thailand as three countries in the Asia Pacific region that struggle with disproportionately high numbers of child detainees. None of these three countries are signatories to the 1951 Refugee Convention (“Convention”) or the 1967 Protocol relating to the Status of Refugees. As a result, “asylum seekers and refugees are typically treated by national legal frameworks as ‘illegal immigrants’ and thus subject to arrest and detention.” Additionally, a recent report by Save the Children and the Asia Pacific Refugee Rights Network outlines the lasting effects of detention on children. From alarming rates of self-harm among children detained by the Australian government, to an increased risk of mental health disorders, malnutrition, poor health and susceptibility to illness, the report found that detention not only prevents children from educational opportunities, it causes significant physical and mental harm.

Nevertheless, while child detention has not ceased, and is unlikely to end by 2019, many small steps in the right direction have been taken by the twelve focus countries. For example, the Progress Report found that all focus countries began implementing alternatives to detention programs; and all countries have arrangements for specialized care for unaccompanied minors in place. Despite these alternatives for children and unaccompanied minors, the Progress Report acknowledges that alternatives to detention for families remains a challenge, and families with children are still detained in all focus countries except for Lithuania.

Childhood Detention Unlikely to End Soon As Refugee Population Continues to Grow And States Resort To Detention and Restricted Housing For Refugees

As of the end of 2016, UNHCR counted 22.5 million refugees, including 5.3 million Palestinian refugees, in addition to approximately 10 million stateless people, worldwide. Of these refugees, around half are under the age of eighteen. In many countries that lack explicit policies against detaining children, children are likely to be detained along with adults. And while data regarding the specific number detained children is readily available for certain countries–like those monitored by the Global Detention Project or the Immigration Detention Coalition—estimates for the rest of the world must instead be pieced together. For example, the majority of refugees in Africa in restricted facilities live in refugee camps, including over 68,888 in one camp in Tanzania (of whom fifty-five percent are under age eighteen) and 69,987 (sixty-seven percent under age eighteen) in a self-settled camp in South Sudan. Additionally, hundreds of thousands of refugees in Kenya live in managed camps that have effectively become small cities. [3]

In Southeast Asia in 2016, at least 2,380 children remain detained in detention centers in Australia, Indonesia, Malaysia, Nauru, and Thailand alone; in Thailand 25,156 refugees (forty-four percent under age eighteen) live in one refugee camp. In the United States, children are detained with their parents at three family detention centers, the two largest centers collectively hold up to 3,500 women and children , despite a federal judge recently denying two of the centers licenses to continue operations. Nevertheless, as of June 13, 2017 one of these detention centers continued to house between 300 and 500 women and children.

Lastly, in Europe, the European Union Agency for Fundamental Rights found that eighteen European Union member states had detained at least one child from December 2015 to September 2016. More specifically, as of September 1, 2016, Greece detained 248 children, Bulgaria 458, and Poland forty-six.

Without Viable Resettlement Options, Children In Detention Remain Detained Long-Term

Without worldwide legal and policy changes, child immigration detention is unlikely to cease completely anytime soon. As long as wars and unstable country conditions continue, refugees and asylum seekers will struggle to obtain legal immigration status in third countries. Even if these fleeing children and their families eventually gain access to UNHCR services and status, they will often find themselves detained, often for over a year, as they wait for their cases to process or third countries to accept their resettlement applications. In 2016, only 189,300 refugees were admitted for resettlement. As a result, resettlement for the millions of refugees worldwide can take years, if not decades, or never happen at all. Caught up in these long processes are the children of asylum seekers and refugees or unaccompanied minors who fled their homes alone. In fact, tens of thousands of children are born in refugee camps spend their entire lives there, never receiving the opportunity to resettle or return to their parents’ home countries. Over 1,000 women gave birth in Greek camps in 2016; in Jordan’s Zaatari refugee camp alone, thirteen to fifteen Syrian refugee babies are born every day.

Children and Immigration Detention: Incompatible with International Law

Given current statistics and the impact of current world conflicts, civil society networks and advocacy groups have good reason to desire a more urgent approach to ending the immigration detention of children. First, the practice is arguably out of line with international law. The 1951 Refugee Convention (“Convention”) addresses immigration detention broadly, declaring in Article 21 that contracting states “shall accord to refugees lawfully staying in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances.”

The Convention also specifically addresses the rights of child refugees. Under Article 22 of the Convention, refugee children shall receive “the same treatment as is accorded to nationals in respect to elementary education.” Lastly, the Conference that adopted the Refugee Convention unanimously adopted a recommendation that “governments . . . take the necessary measures for the protection of the refugee’s family especially with a view to… [t]he protection of refugees who are minors, in particular unaccompanied children and girls.”

The Refugee Convention must be interpreted in line with current international human rights law. Thus, the UN Convention on the Rights of the Child provides an even more comprehensive framework for maintaining a child first perspective within an immigration detention system. Article 1 clearly maintains that “for the purposes of the present Convention a child means every human being below the age of eighteen years,” not withholding variations in age of majority laws. Thus, the Convention on the Rights of the Child makes no exceptions for refugee children; a child receives the same high standard of care regardless of immigration status or access to documentation.

Arguably then, all articles of the Convention on the Rights of the Child apply to refugee children. Therefore, as required by Article 3: “in all actions concerning children . . . the best interests of the child shall be a primary consideration.” Additionally, Article 4 asks that “State Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention.” Lastly, Article 22 requires that:

State Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

Conclusion

In January 2017, UNHCR released a note to clarify its position on the detention of children, and perhaps distance itself from the Declaration’s modest stance, instead aligning itself with the articles of the Refugee Convention and the Convention on the Rights of the Child. The note strongly affirmed UNHCR’s position “that children should not be detained for immigration related purposes, irrespective of their legal/migratory status or that of their parents, and detention is never in their best interests.” The note concluded with UNHCR’s affirmation to “continue to advocate for the ending of child detention” and “support governments in developing care arrangements and alternatives to detention to detention for children and families in the asylum and migration context.”

September 20, 2017 recently marked the one-year anniversary since the United Nations General Assembly adopted the New York Declaration. While the New York Declaration stated that detention is “seldom, if not ever” in the best interest in the child member states calling for an eventual end to the immigration detention of children is a step in the right direction. The UN Global Progress Report may not show dramatic gains within the five-year plan, but acknowledging the practice as undesirable and unanimously voting to end the practice worldwide is a significant gain. Until children are no longer detained, pressure from civil society organizations will continue to encourage lawmakers to follow their obligations under both the Refugee Convention and the Convention on the Rights of the Child and end the practice of immigration child detention.


[1] For the purposes of this note, “child” refers to any person under the age of eighteen; see also, U.N. Convention on the Rights of the Child art. 1, which defines a child as “every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.”

[2] See Trafficking Victims Protection Reauthorization Act of 2008, 22 U.S.C § 235 (d)(7) (2008) (amending section 208 of the Immigration and National Act to exclude an unaccompanied minor from two standard asylum requirements: filing an application for asylum within a year of arrival in the United States and demonstrating that the application has no safe third country to which he or she could relocate).

[3] See UNHCR, Statistical Yearbook 2013, Annex166–81, tbl. 16, http://www.unhcr.org/54cf9bc29.html.

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