Inter-American Court finds that the immigration detention of children is always arbitrary

corte

MEXICO CITY (6 October 2014) – On September 10 the Inter-American Court of Human Rights issued Advisory Opinion-21 (OC-21) concerning the rights and guarantees of children in the context of migration and / or in need international protection, as requested by Mercosur states just over three years ago.

In its decision, the Court addressed two key issues regarding the protection of the rights of refugee, asylum seeker and migrant children:

  1. The use of immigration detention with respect to the principle of last resort in immigration proceedings involving children; and
  2. The appropriate alternative measures to protect the right to liberty of children

Consistent with the framework for the protection of children’s rights, the court ruled that the detention of children and adolescents in the context of migration policies and practices of States is, in all cases, arbitrary and contrary to interests of the child.

The court also found that, unlike criminal proceedings, in immigration matters concerning children the general principle is non-custodial and therefore the last resort principle as set forth in the UN Convention on the Rights of the Child does not apply. Thus, the Court concluded that States may never deprive children of their liberty solely on the basis of their or their parents’/guardians irregular immigration status.

Rather, in response to situations of vulnerability and to protect the rights of children in the contesxt of migration, the Court held that states have an obligation to take measures to promote “the well-being and development of the child.” In no case should such alternative measures mean the detention of a child, rather they are “measures for priority implementation, whose main objective must be the comprehensive protection of rights, based on an individualized assessment and the best interest of the child.”

With this Advisory Opinion, the Court provides civil society organisations, academics and human rights defenders a unique tool for the defense and promostion of migration policies and practices to end the detention of children in the context of migration and asylum and to promote the protection of child rights.

 

Resources:

Inter-American Court: Advisory Opinion OC-21

Inter-American Court, Press Release: Inter-American Court establishes protection standards for migrant children

Global Campaign to End Child Immigration Detention: Inter-American Court of Human Rights strongly against child detention