The Platform

Refugees at a camp in Mogadishu, Somalia. (Tobin Jones)

Immigration detention raises significant human rights concerns, especially for children, and necessitates legal and ethical scrutiny.

Immigration detention presents a labyrinth of moral and legal issues, each varying by nation, centered on the practice of confining non-citizens who may lack proper residency credentials. This practice often collides with immigration enforcement and raises profound human rights questions.

Administratively or judicially mandated, immigration detention serves as a mechanism to facilitate actions like deportation. When an unauthorized entry is criminalized, detention can further serve punitive purposes.

A myriad of factors lead to the detention of migrants—ranging from unauthorized residency to breaches of visa conditions and from asylum applications to border security measures. Yet, the use of detention as an instrument for managing migration is fraught with ethical dilemmas, particularly when it extends indefinitely, leading to overcrowded facilities and restricted access to essential services like healthcare, and can result in the distressing separation of migrant families.

The detention of minors and family units has provoked widespread condemnation due to the detrimental impact on children’s welfare and growth. International human rights frameworks mandate that child welfare be paramount.

The Universal Declaration of Human Rights, through Article 9, and the International Covenant on Civil and Political Rights (ICCPR) oppose arbitrary arrest or detention, insisting on the right to a prompt judicial review of detention’s legality. The Human Rights Committee’s General Comment No. 8 elaborates that these provisions apply to detentions for immigration control, underscoring that detention should always fall under judicial supervision, as reaffirmed by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families further advocates against arbitrary detention, guaranteeing the right to judicial proceedings to ascertain the legality of the detention.

National legislations differ on the provision of legal aid to migrants; judicial proceedings often afford free counsel, while administrative ones may impose costs on the migrant. The rights to review the lawfulness of detention, to appeal against detention or deportation orders, or to seek bail, are not uniformly assured in administrative detention scenarios. The criteria for such detentions are as varied as the nations themselves and the infractions alleged.

Migrant children, particularly those unaccompanied or separated, are acutely susceptible to the harms of administrative detention. Studies highlight the adverse health effects of detention on children, irrespective of duration or conditions. United Nations instruments define ‘detention’ broadly, encompassing any custodial setting imposed by an authority.

The Convention on the Rights of the Child (CRC) stipulates that child detention must be legal, rare, brief, and accompanied by legal support and the right to challenge the detention’s legality. Special provisions are made for asylum-seeking and unaccompanied children, emphasizing the primacy of their welfare.

The United Nations Committee on the Rights of the Child has urged states to cease detaining children for their immigration status and to consider child-centric alternatives.

Nations are thus charged with the responsibility to halt this egregious rights violation, aligning with the mandates of the United Nations Convention on the Rights of the Child.

National measures are imperative to ensure that migrant children’s rights are fully realized, encompassing the enactment of pertinent legislation and the development of detention alternatives that serve the child’s best interests.

Khalid Cherkaoui Semmouni is a Professor of Political Science and Director of the Rabat Center for Political and Strategic Studies.