Detention of Child Asylum Seekers in the Pursuit of State Interests: A Comparison of the Australian and EU Approaches

ABSTRACT

The widespread use of detention of asylum seekers as a form of controlling borders and migration is an acknowledged reality that carries a particular significance in cases where children are involved. Many studies provide evidence on the detrimental impact of detention, especially when this measure affects particularly vulnerable persons. This article is an inquiry into the detention of child asylum seekers in Australia and the European Union (EU). The right to liberty in the asylum context and the protection needs of children are addressed from a legal and policy perspective. The two examined situations display significant differences, yet many commonalities can also be traced in the increasingly restrictive approach to migration favoured by many states. This paper builds on existing arguments and evidence by demonstrating how detention of asylum seeking children has become a matter of policy rather than a measure of last resort, with children not seen first as children, but as detainable foreign subjects. Hence, this analysis questions the logic behind the capacity of states to detain children due to their migration status and identifies relevant protection gaps within the Australian and EU spheres.

KEYWORDS:

• Asylum
• Detention
• Children
• Children’s Rights
• Australia
• European Union
• EU

Notes

1 United Nations Children’s Fund (UNICEF), A child is a child: Protecting children on the move from violence, abuse and exploitation (May 2017) 6 <https://www.unicef.org/publications/files/UNICEF_A_child_is_a_child_May_2017_EN.pdf> accessed 17 December 2017.

2 United Nations High Commissioner for Refugees (UNHCR), ’Global Trends Forced Displacement 2016’ (June 2017) <http://www.unhcr.org/5943e8a34.pdf> accessed 28 March 2018.

3 High-level Dialogue on international migration and development, ‘Migrant Children Should Not be Detained’, Side event on the detention of children, Statement by the UN Special Rapporteur on the human rights of migrants, François Crépeau, New York 2 October 2013.

4 Guild Elspeth, ‘A Typology of Different Types of Centres in Europe’ (February 2006) Report for the European Parliament: Directorate General Internal Policies of the Union, IP/C/LIBE/FWC/2005-22.

5 United Nations (UN), Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau, A/HRC/20/24, 2 April 2012, para 8.

6 UNICEF, Uprooted. The growing crisis for refugee and migrant children (September 2016) 39 <https://www.unicef.org/videoaudio/PDFs/Uprooted.pdf> accessed 28 March 2018.

7 UNHCR, ‘Progress Report mid-2016. Beyond Detention: A Global Strategy to Support Governments to End the Detention of Asylum-seekers and Refugees: 2014–2019’ (August 2016) 31.

8 UN Convention on the Rights of the Child (hereinafter CRC), GA Res 44/25 of 20 November 1989, entry into force 2 September 1990.

9 See UN Committee on the Rights of the Child (hereinafter CRC Committee) General comment No 6 (2005): Treatment of Unaccompanied and Separated Children Outside their Country of Origin, 1 September 2005 (CRC/GC/2005/6) para 86: ‘Non-rights-based arguments such as those relating to general migration control, cannot override best interests considerations.’

10 It is important to highlight that presently the ICMW Committee and the CRC Committee are drafting a joint General Comment on children’s rights within the international migration context in which both Committees reiterate that detention of children associated to their or their parents’ migration status constitutes a child rights violation: ICMW Committee and CRC Committee, Joint general comment No 3 and No 21 on the Human Rights of Children in the Context of International Migration, 2nd DRAFT June 7, 2017, para 49.

11 Stefanie Grant (2011) 7 ‘Immigration Detention: Some Issues of Inequality’, The Equal Rights Review 69, 73.

12 Family unity cannot be a justification for detaining children and alternative measures should be found for the whole family: see CRC Committee, Report of the 2012 Day of General Discussion, ’The Rights of all Children in the Context of International Migration’ para 39 <http://www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/DGD2012ReportAndRecommendations.pdf> accessed 28 March 2018.

13 Frontex, ‘Frontex routes map’ <http://frontex.europa.eu/trends-and-routes/migratory-routes-map/> accessed 17 December 2017.

14 Janet Phillips, ‘Boat Arrivals and Boat “Turnbacks” in Australia since 1976: A Quick Guide to the Statistics’ (11 September 2015) Parliament of Australia, Research Paper Series 2015–2016.

15 Sara Davies and Phil Orchard, ‘Would Australia’s asylum seeker policy stop boats to Europe?’ (The Conversation, 23 April 2015) <http://theconversation.com/would-australias-asylum-seeker-policy-stop-boats-to-europe-40645> accessed 22 March 2017; ‘Borders and boats: Australias “hardline” immigration policies make headlines in Europe’ (8 November 2016) ABC News <http://www.abc.net.au/news/2016-11-08/australia-immigration-policies-make-euro pe-germany-headlines/8003958> accessed 22 March 2017.

16 Migration Act 1958, s 197AB.

17 Australian Government, Department of Immigration and Border Protection, ‘Detention Facilities. Community placement’. <www.border.gov.au/about/immigration-detention-in-australia/detention-facilities> accessed 11 August 2017. On the potential positive impact of community detention, see C Marshall, S Pillai and L Stack, ‘Community Detention in Australia: A More Humane Way Forward’ (2013) 44 Forced Migration Review 55.

18 Australian Government Department of Home Affairs, Immigration Detention and Community Statistics Summary 31 January 2018 <www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-31-january-2018.pdf> accessed 3 March2018.

19 Migration Act 1958, s 195A.

20 Australian Government Department of Home Affairs <www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-31-january-2018.pdf> 8 accessed 3 March 2018.

21 Eurostat, ‘Asylum Quarterly Report’ <http://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_quarterly_report> accessed 17 December 2017.

22 UNICEF, Annual Report 2016, p 45 <www.unicef.org/publications/files/UNICEF_Annual_Report_2016.pdf> accessed 17 December 2017.

23 ibid.

24 Overseas Development Institute (ODI) Report, ‘Europe’s Refugees and Migrants. Hidden Flows, Tightened Borders and Spiralling Costs’ (September 2016), p. 11 <https://www.odi.org/sites/odi.org.uk/files/resource-documents/10870.pdf> accessed 28 March 2018.

25 Migreurope report, Lydie Arbogast, ‘Migrant Detention in the European Union: A Thriving Business’, July 2016, pp. 11, 14–15 <http://www.migreurop.org/IMG/pdf/migrant-detention-eu-en.pdf> accessed 28 March 2018.

26 Universal Declaration of Human Rights (UDHR), adopted 10 December 1948, GA Res 217A (III), arts 3 and 9; International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966, 999 UNTS 171, entered into force 23 March 1976, arts 9 and 10; The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), adopted by GA Resolution 45/158 of 18 December 1990, entered into force 1 July 2003, arts 16 and 17; CRC, art 37; European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), CETS No 005, adopted on 4 November 1950, entered into force on 3 September 1953, art 5; Charter of Fundamental Rights of the European Union(EU Charter), adopted by the European Council 7 December 2000, OJ C 364, 18 December 2000, art 6.

27 ECHR art 5(1)(f); EU Charter art 6; ICCPR art 9.

28 Odysseus Academic Network, Made Real Project, ‘Alternatives to Immigration Detention and Asylum Detention in the EU: Time for Implementation’ edited by Philippe De Bruycker, authored by Alice Bloomfield, Evangelia Tsourdi and Joanna Petin (January 2015) 15 <http://odysseus-network.eu/wp-content/uploads/2015/02/FINAL-REPORT-Alternatives-to-detention-in-the-EU.pdf> accessed 28 March 2018.

29 Australia has a reservation in place concerning art 37(c) relating to the obligation to separate children from adults in prison.

30 UDHR (n 26).

31 ICCPR (n 26).

32 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted and opened for signature, ratification and accession by General Assembly Resolution 39/46 of 10 December 1984.

33 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS, 150 and its Protocol, 4 October 1967, 606 UNTS, 267 (Refugee Convention), art 31.

34 Guy S Goodwin-Gill, ‘Article 31 of the 1951 Convention relating to the Status of Refugees: Non-Penalization, Detention and Protection’ (June 2003) paper prepared at the request of the Department of International Protection for the UNHCR Global Consultations, 196.

35 CRC Committee, Sweden CRC/C/15/Add2, 18 February 1993 para 9.

36 CRC Committee, France CRC/C/FRA/CO/5, 23 February 2016 para 74.

37 CRC Committee, Report of the 2012 Day of General Discussion (n 12) para 78.

38 UNHCR, Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention (2012) Guideline 9.2 para 51.

39 UNHCR ExCom Conclusion no 44, Detention of Refugees and Asylum-Seekers, 13 October 1986.

40 UNHCR, Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum Seekers and Alternatives to Detention (2012) Guideline 2 para 14.

41 Bakhtiyari and Bakhtiyari v Australia Comm no 1069/2002 (HRC, 29 October 2003) CCPR/C/79/D/1069/2002.

42 ibid [9.3] (emphasis added).

43 Ciara Smyth, ‘Is the Right of the Child to Liberty Safeguarded in the Common European Asylum System?’ (2013) 15(2) European Journal of Migration and Law 111, 119.

44 ECHR, CETS no 005, adopted on 4 November 1950, entered into force on 3 September 1953.

45 Art 52(3) of the Charter states that it must be read in a manner consistent with ECHR art 5. This means that only the specific justifications for detention listed are permitted under art 6; see also the explanations to the Charter.

46 Monica Macovei, ‘The right to liberty and security of the person’ Human Rights Handbooks 5 (2002) <https://www.echr.coe.int/LibraryDocs/DG2/HRHAND/DG2-EN-HRHAND-05(2004).pdf> accessed 28 March 2018.

47 Guzzardi v Italy App no 7367/76 (ECtHR 6 November 1980), para 93. See Amuur v France (n 46), para 49; Nolan and K v Russia App no 2512/04 (ECtHR 12 February 2009), para 96.

48 Khlaifia and Others v Italy App no 16483/12 (ECHR, 15 December 2016), para 71.

49 The Treaty amended the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed ‘Treaty on the Functioning of the European Union’ (TFEU). Consolidated version of the Treaty on the Functioning of the European Union - Protocols - Annexes - Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, signed on 13 December 2007 [2012] OJ C 326/1.

50 Case C–617/10 Åklagaren v Hans Åkerberg Fransson (CJEU, 26 February 2013), para 21. See also paras 16–18 of the same judgment.

51 Syd Bolton, ‘The Detention of Children in Member States’ Migration Control and Determination Processes’ (July 2006) Directorate-General Internal Policies, Policy Department C, Citizens Rights and Constitutional Affairs, Briefing Paper IP/C/LIBE/FWC/2005-22/SC2 (Brussels) 3.

52 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants of international protection [2013] OJ L 180/96 (recast RCD). This Directive includes provisions on material reception conditions, documentation, rights and obligations of the asylum seekers and the member state, employment, healthcare, education and vocational training.

53 Article 26, Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) [2013] OJ L180/60 (recast APD). Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals [2008] OJ L348/98 of 24 December 2008 (Returns Directive). The latter Directive is not an integral part of the CEAS stricto sensu, but it is related to those instruments since it applies when a negative decision is given on the asylum application. This very controversial Directive regulates detention under Chapter IV – Detention for the Purpose of Removal (Articles 15–18).

54 Art 28, Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third-country national or a stateless person (recast) [2013] OJ L180/31 (Dublin III Regulation).

55 In the case JN v Staatssecretaris voor Veiligheid en Justitie, the CJEU has reaffirmed the exceptional nature of any detention measure and has argued that ‘in view of the importance of the right to liberty enshrined in article 6 of the Charter and the gravity of the interference with that right which detention represents, limitations on the exercise of the right must apply only in so far as is strictly necessary’: Case C-601/15 PPU, JN v Staatssecretaris (CJEU 15 February 2016), para 56 (emphasis added).

56 Recast RCD (n 52) art 10 and Recital 18.

57 Recast RCD (n 52) art 26.

58 s 20(7) of the International Protection Act 2015 provides that children may not be detained.

59 EU Fundamental Rights Agency (FRA), European legal and policy framework on immigration detention of children (June 2017) 15. The report is also available online <http://fra.europa.eu/en/publication/2017/child-migrant-detention> accessed 28 March 2018.

60 Quaker Council for European Affairs, Sylvain Mossou, ‘Child Immigration Detention in Europe’ (July 2017) p. 13 <http://www.qcea.org/wp-content/uploads/2017/07/Child-immigration-detention-in-Europe.pdf> accessed 28 March 2018.

61 European Commission: Communication from the Commission to the European Parliament and the Council towards a reform of the Common European Asylum System and enhancing legal avenues to Europe, COM(2016) 197 final, p 2. This communication was followed by two sets of legislative proposals adopted by the Commission on 4 May and 13 July 2016. The proposed reform aims at building a solid, coherent and integrated European asylum system based on common, harmonised rules which are fully in line with the international protection standards under the Geneva Convention and fundamental rights instruments.

62 Migration Act 1958, s 189. Section 189(1) of Australia’s Migration Act 1958 states that ‘If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.’ Section 196 of the same Act provides that as regards duration of detention ‘(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD (3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa.’

63 The Minister for Home Affairs is the legal guardian of all unaccompanied non-citizen children.

64 Department of Immigration and Home Affairs <www.osb.homeaffairs.gov.au/> accessed 3 March 2018. Whilst Nauru and Manus Island are not part of Australia, those sent to these locations for processing are sent as a direct result of Australian government policy, and the facilities in which the processing takes place are operated on Australia’s behalf. As such, this paper discusses Australia’s offshore facilities in the context of their role in Australia’s response to unauthorised migration and the associated impact on children.

65 Sir Nigel Rodley notes that the majority of the world has accepted the ‘ … unquestionably legal obligations of the ICCPR’ and that the HRC’s views have substantial authority: see Sir Nigel Rodley, ‘Civil and Political Rights’ in Catarina Krause and Martin Scheinin (eds), International Protection of Human Rights: A Textbook (Åbo Akademi University, Institute for Human Rights 2012) 105–29. Nonetheless, a 2010 study of the Open Society Justice Initiative concludes, on the basis of 2009 data of the HRC, that the compliance rate ‘hovers slightly above 12 percent, a low figure by any measure’ and that the implementation of HRC decisions have actually deteriorated over time (from 30% in 1999 to 12% 10 years later): see Open Society Justice Initiative, From Judgment to Justice: Implementing International and Regional Human Rights Decisions (2010) 118–20. Regarding the obligation of states to respect communications from the Committee, see HRC, Kone v Senegal (386/1989) [11].

66 See e.g. Tatsuo ‘Liberal Democracy and Asian Orientalism’, Donnelly ‘Human Rights and Asian Values: A Defense of “Western” Universalism’, Yasuaki ‘Toward an Intercivilizational Approach to Human Rights’, and Taylor ‘Conditions of an Unforced Consensus on Human Rights’, all in Joanne Bauer and Daniel Bell (eds), The East Asian Challenge for Human Rights (Cambridge University Press 1999).

67 CAT Concluding observations on the third periodic report of Australia, CAT/C/AUS/CO/3, 15 May 2008; CAT, Concluding observations Australia, CAT/C/AUS/CO/4-5, 11 November 2014. Committee on Economic, Social and Cultural Rights (CESCR) Concluding observations Australia, E/C12/AUS/CO/4, 22 May 2009. Committee on the Elimination of Racial Discrimination (CERD) Concluding observations Australia, CERD/C/AUS/CO/15-17, 27 August 2010. Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Addendum: Observations on communications transmitted to Governments and replies received, UN doc A/HRC/28/68/Add1, 6 March 2015, paras 16–31.

68 A v Australia Comm no 560/1993 (HRC 3 April 1997) UN Doc CCPR/C/59/D/560/1993.

69 ibid.

70 MGC v Australia Comm no 1875/2009 (HRC 26 March 2015).

71 Response of the Australian Government to the Views of the HRC in Comm no 1875/2009 (MGC v Australia), 2 October 2015, para 13 <https://www.humanrights.gov.au/sites/default/files/document/publication/Children_Detention2014_Discussion_paperFINAL.pdf> accessed 28 March 2018.

72 Australian Human Rights Commission (AHRC), ‘National Inquiry into Children in Immigration Detention Discussion Paper’ (AHRC, 2014) 2.

73 ibid.

74 AHRC, The Forgotten Children: National Inquiry into Children in Immigration Detention <https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf> accessed 28 March 2018.

75 CRC Committee, 60th session, 29 May–15 June 2012, Consideration of reports submitted by States parties under article 44 of the Convention, Concluding observations: Australia, CRC/C/AUS/CO/4, 81(a).

76 European Council on Refugees and Exiles (ECRE), ‘New detention centres at the external EU borders’ (24 February 2017) <www.ecre.org/new-detention-centres-at-the-external-eu-borders/> accessed 22 March 2017.

77 UN General Assembly, Rights of the Child, A/C3/69/L24/Rev1, 17 November 2014, para 51 (d).

78 See UNHCR, 9th annual High Commissioner’s Dialogue on Protection Challenges, ‘Child on the Move’ (Geneva, 8–9 December 2016) paras 59–61.

79 EU FRA, ‘European legal and policy framework on immigration detention of children’ (June 2017) p 15 <http://fra.europa.eu/en/publication/2017/child-migrant-detention> accessed 16 August 2017.

80 ibid.

81 According to the global campaign to End Children Immigration Detention, the estimated number is of about 41,500 children detained each year: <http://endchilddetention.org/data/> accessed 17 March 2017.

82 Global Detention Project (GDP), ‘The Uncounted: The Detention of Migrants and Asylum Seekers in Europe’ (December 2015 <https://www.globaldetentionproject.org/wp-content/uploads/2015/12/The-Uncounted.pdf> accessed 28 March 2018.); PICUM, ‘Protecting Undocumented Children: Promising Policies and Practices from Governments’ <http://picum.org/Documents/Publi/2015/Protecting_undocumented_children-Promising_policies_and_practices_from_governments.pdf> accessed 28 March 2018.

83 Regulation (EC) no 862/2007 of the European Parliament and of the Council of 11 July 2007 on Community statistics on migration and international protection, art 7.

84 Returns Directive (n 53) art 15; recast RCD (n 52) arts 8–11; recast APD (n 53) art 26; Dublin III Regulation (n 54) art 28.

85 Refugee Council of Australia, ‘Australia’s detention policies’ <www.refugeecouncil.org.au/getfacts/seekingsafety/asylum/detention/key-facts/> accessed 9 March 2017.

86 Australian Government Department of Home Affairs, Immigration Detention and Community Statistics Summary (31 January 2018) <www.homeaffairs.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-31-january-2018.pdf> accessed 3 March 2018. The governments of Australia and Nauru describe the Nauru RPC as an open facility, as asylum seekers on Nauru have been able to move freely around the island since October 2015. Nevertheless, according to a recent report by Amnesty International, ‘ … although asylum-seekers and refugees on Nauru are not technically detained, because they are able to move around the island, they are nonetheless in a detention-like environment. Nauru is to all intents and purposes an open-air prison that people cannot leave, even when they have been officially recognized as refugees’: see Amnesty International, Island of Despair, Australia’s ‘Processing’ of Refugees on Nauru, 2016. <https://www.amnesty.org/download/Documents/ASA1249342016ENGLISH.PDF> accessed 28 March 2018.

87 For an overview on EU asylum and migration policy developments and the several challenges therein, see Overseas Development Institute (ODI) and European Centre for Development Policy Management (ECDPM), Raphaëlle Faure, Mikaela Gavas and Anna Knoll, ‘Challenges to a Comprehensive EU Migration and Asylum Policy’ (December 2015) <www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/10166.pdf> accessed 12 September 2017.

88 Global Migration Group (GMG), ‘International Migration and Human Rights: Challenges and Opportunities on the Threshold of the 60th Anniversary of the Universal Declaration of Human Rights’ (2008) 62 <http://www.globalmigrationgroup.org/system/files/uploads/documents/Int_Migration_Human_Rights.pdf> accessed 28 March 2018. See Médecins Sans Frontières (MSF), ‘The Impact of Detention on Migrants’ Mental Health’ (Briefing Paper 2010); MSF, ‘Invisible Suffering. Prolonged and systematic detention of migrants and asylum seekers in substandard conditions in Greece’ (Report, April 2014) <http://www.msf.org/sites/msf.org/files/invisible_suffering.pdf> accessed 28 March 2018.

89 UN Special Rapporteur on the Human Rights of Migrants, Annual Report, UN Doc A/HRC/11/7 (14 May 2009) para 43. UNICEF, Administrative Detention of Children: A Global Report (New York, 2011) 94–96.

90 Australian Human Rights Commission, The Forgotten Children: National Inquiry into Children in Immigration Detention (2014) 76–77, 111–13. See Human Rights Watch, Michael Garcia Bochenek, ‘Children Behind Bars. The Global Overuse of Detention of Children’, World Report 2016 <https://www.hrw.org/world-report/2016/children-behind-bars> accessed 28 March 2018.

91 Elizabeth Elliott and Hasantha Gunasekera, ‘The Health and Well-being of Children in Immigration Detention’ Report to the Australian Human Rights Commission on the Monitoring Visit to Wickham Point Detention Centre, Darwin, NT (October 2015) p 5 <https://www.humanrights.gov.au/sites/default/files/document/publication/Health%20and%20well-being%20of%20children%20in%20immigration%20detention%20report.pdf > accessed 28 March 2018.

92 ibid.’

93 Refugee Council of Australia, ‘Australia’s detention policies’ <www.refugeecouncil.org.au/getfacts/seekingsafety/asylum/detention/key-facts/> accessed 9 March 2017.

94 An ‘immigration and border protection worker’ is defined in s 4 of the Australian Border Force Act to include, among others, Australian Public Service employees, Australian customs officers, officers and employees of foreign countries whose services are made available to in the Department of Immigration and Border Protection, and those engaged as consultants and contractors to perform services for the Department.

95 Australian Border Force Act 2015, s 42.

96 Australian Government Department of Immigration and Border Protection, Determination of Immigration and Border Protection Workers – Amendment No 1, 30 September 2016. On 9 August 2017 the Australian government put forward an amendment to the Australian Border Force Act 2015 that would effectively remove the threat of imprisonment faced by workers other than health practitioners by narrowing the definition of ‘protected information’ to include only certain types of information, such as that ‘which would or could reasonably be expected to prejudice the security, defence or international relations of Australia’: see Parliament of Australia, Australian Border Force Amendment (Protected Information) Bill 2017.

97 CRC Committee, CRC/C/NRU/CO/1, 28 October 2016, para 52. See also, EPRS November 2016 <http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/593517/EPRS_BRI(2016)593517_EN.pdf> accessed 28 March 2018.

98 European Parliament Research Service (EPRS) ‘Refugee and Asylum Policy in Australia between Resettlement and Deterrence’ (November 2016) 4 <http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/593517/EPRS_BRI(2016)593517_EN.pdf> accessed 28 March 2018.

99 Paul Farrell, Nick Evershed and Helen Davidson, ‘The Nauru files: cache of 2,000 leaked reports reveal scale of abuse of children in Australian offshore detention’, The Guardian (10 August 2016) <https://www.theguardian.com/australia-news/2016/aug/10/the-nauru-files-2000-leaked-reports-reveal-scale-of-abuse-of-children-in-australian-offshore-detention> accessed 28 March 2018.

100 Mubilanzila Mayeka and Kanini Mitunga v Belgium App no 1378/03 (ECHR, 12 October 2006); Muskhadzhiyeva and others v Belgium App no 41442/07 (ECHR, 19 January 2010); Kanagaratnam and Others v Belgium App no 15297/09, (ECHR, 13 December 2011).

101 Mahmundi and others v Greece App no 14902/10 (ECHR, 31 July 2012); Rahimi v Greece App no 8687/08 (ECHR, 5 April 2011).

102 Popov v France App no 39472/07 and 39474/07 (ECHR 19 January 2012).

103 Ciara Smyth, ‘Is the Right of the Child to Liberty Safeguarded in the Common European Asylum System?’ (2013) 15(2) European Journal of Migration and Law 111.

104 AB and Others v France App no 11593/12 (ECHR, 12 July 2016) para 113. See also AM and Others v France App no 24587/12; RC and VC v France App no 76491/14; RK and Others v France App no 68264/14; RM and Others v France App no 33201/11 ((ECHR, 12 July 2016).

105 See European Court of Human Rights, Factsheet Migrants in Detention (March 2018) 13 <https://www.echr.coe.int/Documents/FS_Migrants_detention_ENG.pdf> accessed 28 March 2018.

106 UNHCR, Guidelines (n 38).

107 Victor Abramovich, Pablo Ceriani Cernadas and Alejandro Morlachetti, ‘The Rights of Children, Youth and Women in the Context of Migration: Conceptual Basis and Principles for Effective Policies with a Human Rights and Gender Based Approach’ UNICEF Policy and Practice (Geneva April 2011) 32.

108 UNICEF, Uprooted. The Growing Crisis for Refugee and Migrant Children (September 2016) <https://www.unicef.org/videoaudio/PDFs/Uprooted.pdf> accessed 28 March 2018.

109 Alice Farmer, ‘The Impact of Immigration Detention on Children’ (2013) 44 Forced Migration Review 14.

110 Rachel Kronick, Cécile Rousseau and Janet Cleveland, ‘Asylum-Seeking Children’s Experiences of Detention in Canada: A Qualitative Study’ (2015) 85(3) American Journal of Orthopsychiatry 287; Janet Cleveland, ‘Not So Short and Sweet: Immigration Detention in Canada’ in Amy Nethery and Stephanie J Silverman (eds), Immigration Detention: The Migration of a Policy and its Human Impact (Routledge 2015); Michael Dudley, Zachary Steel, Sarah Mares and Louise Newman, ‘Children and Young People in Immigration Detention’ (2012) 25(4) Australasian Psychiatry 285; CK Pourgourides, SP Sashidharan and PJ Bracken (1996) A Second Exile: The Mental Health Implications of Detention of Asylum Seekers in the United Kingdom (Northern Birmingham Mental Health Trust & Department of Economics, University of Bradford); D Silove, Z Steel and C Watters, ‘Policies of Deterrence and the Mental Health of Asylum Seekers’ (2000) 284(5) Journal of the American Medical Association 604.

111 Mina Fazel and Alan Stein, ‘Mental Health of Refugee Children: Comparative Study’ (2002) 87 British Medical Journal 366, 366.

112 Ben Doherty and Nick Evershed, ‘Child detainee mental trauma will last, immigration health care providers warn’ The Guardian (17 January 2016) <https://www.theguardian.com/australia-news/2016/jan/18/child-detainee-mental-trauma-will-last-immigration-healthcare-provider-warns> accessed 28 March 2018.

113 Muskhadzhiyeva and Others v Belgium App no 41442/07 (ECHR 19 January 2010) para 70.

114 Article 9 (1) recast RCD (n 52) states: ‘An applicant shall be detained only for as short a period as possible and shall be kept in detention only for as long as the grounds set out in Article 8(3) are applicable’, yet it does not specify a maximum time limit. It is important to note that art 15 of the Returns Directive sets 18 months as the maximum time limit of detention, yet this applies only when a definitive negative decision on the asylum application has been issued.

115 Migration Act 1958, s 4AA.

116 ICMW Committee and CRC Committee, Joint general comment No 3 and No 21 on the Human Rights of Children in the Context of International Migration, 2nd DRAFT June 7, 2017, para 50.

117 Jennifer Hyndman and Alison Mountz, ‘Another Brick in the Wall? Neo-Refoulement and the Externalization of Asylum by Australia and Europe1’ (2008) 43 Government and Opposition 249, 269.

118 Nicholas De Genova, ‘Detention, Deportation and Waiting: Toward a Theory of Migrant Detainability’ (September 2016) Global Detention Project Working Paper No 18, p 6 <https://www.globaldetentionproject.org/wp-content/uploads/2016/12/De-Genova-GDP-Paper-2016.pdf> accessed 28 March 2018.