INTRODUCTION

Child immigration detention remains a disconcerting reality of our times. This chapter focuses on the detention of asylum-seeking children accompanied by their family, in light of their right to liberty, family unity and the best interests of the child (BIC). It considers the extent to which these three rights support the extension of non-custodial alternatives not only to children, but to their entire family.

The right to liberty is safeguarded by all international and regional human rights instruments and also by child-specific norms, most notably, the United Nations Convention on the Rights of the Child (UNCRC). When people are arbitrarily deprived of their liberty, they can also be deprived of other rights, depending on the conditions of detention. Moreover, the negative effects of detention are solidly recognised, with the effects exacerbated when children are involved. Tens of thousands of asylum-seeking children worldwide are ‘captive’ in different forms of detention, with or without their families, and are effectively stripped of their childhood.

Against this backdrop, it becomes imperative that the contours of the obligations of states vis-à-vis asylum-seeking children are elucidated. The focus of this chapter is specifically on accompanied asylum-seeking children, although the analysis pertaining to the right to liberty is equally relevant for unaccompanied minors. However, in contrast with unaccompanied children, human rights law has not yet definitively rejected the use of detention for accompanied children. It is still widely used, often in the pretext of maintaining family unity, with the legal status of the child often being subsumed into their parents’ migratory status.

This chapter evaluates the increased significance that the BIC has come to acquire in the international and European arenas, and how this has contributed to a shift in approach regarding child immigration detention. The main proposition of this chapter is that immigration detention can no longer be an option for children, and that, because all children's rights are inextricably linked, including the rights to liberty and family unity, non-custodial alternatives should be extended to the children's entire family.

THE BEST INTERESTS OF THE CHILD: FROM ‘PRIMARY’ TO ‘PARAMOUNT’ CONSIDERATION

The significance of the following analysis lies in the fact that the BIC is closely connected with all other children's rights and always remains a relevant consideration that can inform immigration decision-making.