CMW/C/GC/4-CRC/C/GC/23
rights violation and contravenes the principle of the best interests of the child. 5 In this light,
both Committees have repeatedly affirmed that children should never be detained for
reasons related to their or their parents’ migration status and States should expeditiously
and completely cease or eradicate the immigration detention of children. Any kind of child
immigration detention should be forbidden by law and such prohibition should be fully
implemented in practice.
6.
Immigration detention is understood by the Committees as any setting in which a
child is deprived of his/her liberty for reasons related to his/her, or his/her parents’,
migration status, regardless of the name and reason given to the action of depriving a child
of his or her liberty, or the name of the facility or location where the child is deprived of
liberty. 6 “Reasons related to migration status” is understood by the Committees to be a
person’s migratory or residence status, or the lack thereof, whether relating to irregular
entry or stay or not, consistent with the Committees’ previous guidance.
7.
In addition, both the Committee on the Rights of the Child and the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families have
emphasized that children should not be criminalized or subject to punitive measures, such
as detention, because of their or their parents’ migration status.7 Irregular entry and stay do
not constitute crimes per se against persons, property or national security. 8 Criminalizing
irregular entry and stay exceeds the legitimate interest of States parties to control and
regulate migration, and leads to arbitrary detention.
8.
The Committee on the Rights of the Child, in relation to unaccompanied and
separated children, stated in 2005 that children should not be deprived of their liberty and
that detention cannot be justified solely on the basis of the child being unaccompanied or
separated, or on their migratory or residence status or lack thereof.9
9.
The Committees emphasize the harm inherent in any deprivation of liberty and the
negative impact that immigration detention can have on children’s physical and mental
health and on their development, even when they are detained for a short period of time or
with their families. The Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment has stated that “within the context of administrative
immigration enforcement … the deprivation of liberty of children based on their or their
parents’ migration status is never in the best interests of the child, exceeds the requirement
of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or
degrading treatment of migrant children”.10
10.
Article 37 (b) of the Convention of the Rights of the Child establishes the general
principle that a child may be deprived of liberty only as a last resort and for the shortest
appropriate period of time. However, offences concerning irregular entry or stay cannot
under any circumstances have consequences similar to those derived from the commission
5
6
7
8
9
10
See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 78. See
also the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), in
particular principle 21, para. 46, and guideline 21.
Deprivation of liberty is defined in article 4 (2) of the Optional Protocol to the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment as “any form of detention
or imprisonment or the placement of a person in a public or private custodial setting which that
person is not permitted to leave at will by order of any judicial, administrative or other authority”.
Rule 11 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty states:
“For the purposes of the Rules, the following definitions should apply: … (b) The deprivation of
liberty means any form of detention or imprisonment or the placement of a person in a public or
private custodial setting, from which this person is not permitted to leave at will, by order of any
judicial, administrative or other public authority.”
See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 78.
See Committee on the Protection of the Rights of All Migrant Workers and Members of Their
Families, general comment No. 2 (2013) on the rights of migrant workers in an irregular situation and
members of their families, para. 24.
See Committee on the Rights of the Child, general comment No. 6 (2005) on treatment of
unaccompanied and separated children outside their country of origin, para. 61.
See A/HRC/28/68, para. 80.
3