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A Court of Appeal in Norway has found twenty days’ detention of four children during deportation proceedings to be in violation of their fundamental rights. The underlying problems are addressed in a new law proposal but, despite some improvements, the proposal nevertheless opens up for practice that might easily breach the Constitution and international law.

On May 31 in 2017, the Borgarting Court of Appeal in Oslo found that detention of four children aged 7-14 during deportation proceedings in 2014 violated their fundamental rights. Before they were deported to Afghanistan, the children had been detained for twenty days with their parents in Norway’s immigration detention centre at Trandum. The judgment contains over 70 pages of thorough analysis of both facts and law, including the most recent jurisprudence from the European Court of Human Rights.

The Court found that the detention violated the Constitution, as well as the European Convention on Human Rights (ECHR) and the Convention on the Rights of the Child (CRC). Specifically, in regard to the entire family, the Court found a violation of Article 8 of the ECHR on the right to respect for private and family life. In regard to all four children, the court found violations of Article 3 of the ECHR on Inhuman or Degrading Treatment, of article 5(1) of the ECHR on the right to liberty, of Articles 3 and 37 of the CRC, of § 93(2) of the Constitution on Inhuman or Degrading Treatment and § 94(1)(2) of the Constitution on Deprivation of Liberty that constitutes a disproportionate interference. The decision is now final, as the state has decided not to appeal it further to the Supreme Court.

Several third parties intervened before the Court, including the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the UN Chair-Rapporteur on Arbitrary Detention, as well as the Norwegian Bar Association.

Inhumane

As pointed out by the Norwegian National Human Rights Institution in their article in Aftenposten, Norway’s largest newspaper, this is the first time a court has found Norway in violation of the prohibition against inhuman or degrading treatment in respect to children.

The Court of Appeal has assessed the facts of the case in light of the latest jurisprudence from the European Court of Human Rights, including five judgments from July 2016 against France. In all of these five cases, the Strasbourg Court found, among other violations, a violation of the prohibition against inhuman or degrading treatment, noting that children must not be detained for an extended period of time. The cases concerned detention of children of four months to four years for periods of seven to eighteen days at the detention centres at Metz-Queuleu and Toulouse-Cornebarrieu.

The Court of Appeal’s finding that the twenty days’ detention of the four children at the Norwegian centre at Trandum was inhuman does not seem particularly surprising, as the detention conditions at Trandum and at Toulouse-Cornebarrieu in France are quite similar. Both the Norwegian and the French centre have a relatively strict security regime and are operated by uniformed police, with a potential fear-inducing effect on children. Both are located close to an airport, causing noise from the air traffic. There is also other noise inside the centres, including from adults detained close to the family unit, who at times resort to self-harm or even riots, as has repeatedly happened in the Norwegian centre.

When children in addition witness their parents being extremely stressed and without control over the situation, their cognitive development can become irreversibly compromised. As highlighted in the report from March 2015 by the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, studies have shown that, “regardless of the conditions in which children are held, detention has a profound and negative impact on child health and development. Even very short periods of detention can undermine the child’s psychological and physical well-being and compromise cognitive development”.

Unnecessary

The Court of Appeal was unconvinced that detention of the family beyond the first two days was strictly necessary to carry out the deportation, noting that the state’s apparent approach to assessing the necessity and proportionality of detention was flawed.

The state’s approach suggested that the requirements for detaining parents are to be assessed first, and the question of whether it is best for the children to be detained together with the parents is to be assessed sequentially thereafter. In the Court’s view, such approach is unacceptable, as this deprives the strict requirements for detention of children of their intended restrictive effect.

The correct approach, according to the Court, is to apply the Principle of Strict Necessity in respect to the entire family, taking into consideration the best interests of the child, while carefully assessing whether an alternative to detention is sufficient under the given circumstances.

Unsurprising

Although the appeal judgment might have come as a surprise to the National Police Immigration Service, which is responsible for managing the immigration detention centre and carrying out deportations, it confirms long-standing criticism by the civil society against detaining children at Trandum.

The Norwegian Organisation for Asylum Seekers (NOAS) identified and discussed the specific case at hand already in its report “Frihet først” (Freedom First) published in February 2015. The report argued that such examples constitute a violation of the ECHR and CRC as well as the Constitution, advocating for more serious consideration of alternatives to detention.

The Parliamentary Ombudsman visited the immigration detention centre at Trandum in May 2015 and concluded that the psychosocial environment for children did not appear satisfactory. The Ombudsman’s report was partly based on previous findings of the Norwegian Psychological Association’s Human Rights Committee, which found in 2014 that the centre must be considered as inappropriate for children.

New law proposal

In April 2017, the Government submitted to the Parliament a proposal to improve the domestic legal framework regulating immigration detention. Most notably, the new framework will address concerns over legal certainty of several crucial procedural safeguards. This is a long known issue, which was pointed out already in a 2012 report commissioned by the Ministry of Justice, and again in a 2014 NOAS’ report.

Disappointingly, the proposal does not foresee an absolute time limit on detention of children. Instead, the proposal will allow for initial detention of one day, which may thereafter be extended by court for three days and, if necessary, for additional three days. Thereafter, the court may extend detention for a further week at a time, provided there are “special and strong reasons” to do so.

The proposal specifies that the term special and strong reasons primarily includes situations where “the family or the child themselves bear substantial responsibility for deportation not been carried out within the first six days after the arrest, or if there is a clarified point in time for deportation which is near in time.” The proposal stresses that this specification is non-exhaustive.

The law proposal foresees construction of a new detention centre with a “more civilian character” for families with children. The Government believes that detention of children in such a specialised centre will allow for longer periods of detention, as suggested by the newly proposed 1+3+3+7+ model mentioned above. The centre is to be managed by the same police unit that runs the detention centre at Trandum, and it will allow for detention of up to three families at a time.

As pointed out by the Norwegian National Human Rights Institution, which enjoys an independent and autonomous position under the auspices of the parliament, it is hardly advisable to introduce legislation that balances on the very edge of what is allowed under Article 3 of the ECHR. This can easily lead to instances of courts reprimanding Norway for breaching the prohibition against inhuman treatment in respect to the most vulnerable in the society – again.

This article was written by Marek Linha, Advisor for the Norwegian Organisation for Asylum Seekers (NOAS) and IDC Regional Advisor for Northern Europe.

A new report on the “European legal and policy framework on immigration detention of children” has been launched by the EU Fundamental Rights Agency (FRA).

FRA held an Experts Meeting to discuss the issues raised in the report and to share good practices between states, which the Senior Child Rights Advisor of the International Detention Coalition (IDC), Melanie Teff, attended.

The meeting was attended by experts from EU meber States and Schengen Associated Countries representing immigration, child protection, guardianship and ombudsman authorities; EU institutions; international intergovernmental and non-governmental organisations.

The discussion focused on four main issues which were subject of dedicated working groups:

• the role of child protection authorities and the best interests of the child
• alternatives to detention for unaccompanied children
• alternatives to detention for families
• detention conditions.

The IDC presented at this Experts’ Meeting on its research findings on alternatives to detention from outside of Europe (giving examples from Australia, the USA, and Hong Kong), to promote discussion and thinking about key elements of successful alternatives to detention globally that are also relevant in the European context.

The IDC’s research findings highlight some key elements that are necessary for alternatives to detention to be successful in any context – such as engagement with the child/family through case management, a holistic approach that helps explore all of the child’s/family’s options (not only return), and ensuring that basic needs are met.

The IDC provided examples of families who decided to return voluntarily following engagement through holistic case management, as well as explaining the IDC’s Child-Sensitive Community Assessment & Placement (CCAP) Model.

The presentation of the European Alternatives to Detention Network (convened by IDC and PICUM and set up in March 2017) resulted in a lot of interest by the Expert Meeting participants, especially regarding how the network develops, as well as exploring in further detail at future meetings best models of case management.

In June a preparatory meeting was also held toward the first EU Guardianship Network, which is expected to be up and running starting in 2018.

Participants at the peer exchange workshop in Sofia, June, 2017

What do we mean by case management as an alternative to detention? How can we engage clients to actively participate in the process? These were some of the questions considered by the case managers of the European ATD Network, at a peer exchange workshop in Sofia last month.

“When we work with clients, we build up their confidence over time: gaining their trust, showing that we can provide credible information and advice and that there are benefits for them in staying engaged with the process”, said Dilyana Giteva, lawyer and case manager at the Bulgarian Lawyers for Human Rights. Their joint pilot project with Centre for Legal Aid – Voice in Bulgaria has been running since the beginning of this year, working with 25 clients to date.

 Participants at the peer exchange workshop in Sofia, June, 2017

An innovative strategy for reducing detention

Engaging and empowering migrants through individualized case management are the core elements of the four pilot projects in the European ATD Network, providing alternatives to immigration detention in Bulgaria, Cyprus, Poland and the UK.

But many NGOs provide case work to migrants, what is new about this approach? These projects have an innovative strategy with a two-fold aim:

• Delivering quality support and services to migrants based on their individual needs, so that their cases can be resolved in the community without the use of immigration detention
• Utilising the results of everyday casework to strengthen national and EU-level advocacy efforts aimed at reducing immigration detention in policy and practice.

What do we mean by case management?

Case management is a structured process of service-delivery designed according to the needs of the clients, and is built on their active participation and empowerment. Based on mutual trust between the client and the case manager, the main focus is on increasing the overall well-being of the migrant and supporting their engagement in the process.

“Case management is about working with each person as a team” said Memnon Arestis, project coordinator in Future Worlds Center pilot project in Cyprus.

Vulnerabilities and protection needs could be identified by screening, assessing and active listening to the needs of the clients at the first phase as well as throughout the whole process. Case management is an active tool to strengthen resilience, to establish placement and support options while working towards case resolution. Willingness to engage and cooperate with migration processes is more likely to happen if people feel well-informed and that their basic needs are met.

The European ATD Network is already happening

Although most of the pilots are starting now, all of the four implementing organisations have long experience and expertise in providing assistance to migrants with multiple needs. The Network itself provides a platform for exchanging knowledge, discussing challenges, sharing practices and mutual support in order to gather evidence and to amplify the potential of case management-based alternatives to change detention policies both at the national and EU-level.

The European ATD Network is supported by EPIM.

Related Posts

A new network of NGOs piloting alternatives in Europe

A new network of European NGOs aims to reduce immigration detention by showing governments what works better in practice: not just by talking about it, but by actually doing it.

The important task of codifying existing international standards has been entrusted by CDCJ to a Committee of experts established under its authority: the Committee of experts on administrative detention of migrants (CJ-DAM).

The elaboration of the draft codifying instrument started in May 2016 and is expected to be completed in 2018.

Over 30 national, regional and international civil society organisations submitted a joint statement, to the European Committee on Legal Co-operation (CDCJ) who is carrying out a codifying exercise on a detailed set of immigration detention rules based on existing international and regional human rights standards relating to the conditions of detention of migrants.

IDC Members and partners expressed their collective concern that, “A Fundamentally Different Approach is Needed” to the immigration detention of migrants in Europe.

The statement was presented during a consultation with key civil society stakeholders from 22-23 June 2017 at the Council of Europe Headquarters in Strasbourg. We welcome you to share this joint statement among your networks.

After the consultation, the IDC and the International Commission of Jurists  have presented their joint observations on the draft European rules for the administrative detention of migrants.
In their submissions, the two human rights organisations noted that the current detention practices in most Council of Europe member States raise serious questions as to their compatibility with human rights law.

They stressed that, under international human rights law, immigration detention must always be an exceptional measure of last resort in full respect of the norms of necessity, proportionality and non-discrimination.

The ICJ and IDC expressed concern that the current draft document fails to adequately distinguish between criminal and administrative immigration detention regimes.

In doing so, the document risks normalising unlawful detention practices and codifying prison standards that are wholly inappropriate in the context of migration.

The two organisations submitted that, as a general rule, persons in situations of particular vulnerability should never be detained merely for the purposes of enforcing immigration control.

Finally they called on the drafting Committee to prioritise alternatives to detention.

If you have questions about these European Rules or would like to learn more, please contact: [email protected]