Immigration Detention of Children in the New EU Pact on Migration and Asylum

[Elina Hammarström is Associate Legal Adviser in the International Commission of Jurists’ Europe and Central Asia Programme]

In May 2024, the European Union adopted the final text of the new EU Pact on Migration and Asylum (EU Pact), consisting of ten legislative texts reforming the EU migration and asylum system. As a whole, the EU Pact, which will enter into force in June 2026, is based on a stronger “externalization of migration governance”, namely preventing migrants and refugees from arriving in Europe in the first place, including in ways that violate human rights and States’ international law obligations. It involves: stricter control of borders; limiting the number and duration of asylum procedures, including through increased use of “inadmissibility grounds” and fast-track procedures; and facilitating the faster return of individuals whose claims for international protection have been refused. 

Civil society, researchers and human rights defenders, among others, have widely criticized the EU Pact for hollowing out the right to seek and enjoy asylum from persecution and for leading to increased human rights violations and suffering at the EU’s borders and beyond. One significant cause for concern in relation to the EU Pact, and the focus of this post, is the risk of increased use of immigration detention, including of children, within the screening and border procedures foreseen by the Pact. 

Detention under the Screening and Border Procedures in the EU Pact

One central feature of the new EU Pact is the widespread use of special procedures. These seek to accelerate processing of arrivals, asylum applications and potential returns, and to keep affected migrants and refugees at the EU Member States’ borders during screening and the processing. The Screening Regulation (SR) introduces mandatory screening at external EU borders of all arrivals that do not fulfill entry conditions and, in some cases, of persons found within EU territory, with the stated aim of ensuring the fast identification of the correct procedure to manage their situations. These procedures involve thorough security, health and identity checks, fingerprinting and registration in the Eurodac database. Following the screening, under the EU Pact, individuals seeking international protection may have their asylum applications assessed through an accelerated procedure, while they are subjected to the so-called asylum border procedure under the Asylum Procedures Regulation (APR). Wide categories of people risk being subjected to the asylum border procedure, including based on being “considered to have misled the authorities”, making a subsequent application or an application “merely to delay, frustrate or prevent” their removal from the EU, or coming from a country with an asylum application success rate of 20% or lower (Art 42.1, 43 and 45.1 APR). Finally, applicants whose applications for international protection are refused within the asylum border procedure can be subject to a return border procedure under the Return Border Procedure Regulation (RBPR) to facilitate their removal from the EU. 

The system of screening and border procedures is essentially designed to restrict the movement of affected individuals, keeping them at the borders (or in some cases in designated places in the territory) to control them and facilitate their rapid return to their home countries, should the authorities find that they have no right remain. This is illustrated by the Regulations requiring Member States to “guarantee the availability” of persons subjected to the procedures, namely to prevent them from absconding (see e.g. Art 6 SR). Although the Regulations clarify that all procedures can be carried out without the use of detention, and that any detention must be carried out based on an individual assessment, “only where other less coercive measures cannot be applied” (Recital 69 APR referring to the Reception Conditions Directive) and in accordance with a number of safeguards, the system incentivizes the use of restrictions on the freedom of movement and deprivation of liberty, with the stated aim of facilitating process efficiency, raising profound concerns that the Pact will lead to a further increase in the use of detention solely for immigration control purposes.

Besides physical control, the screening and border procedures under the EU Pact are also based on the purported ‘legal exclusion’ of affected individuals from the territory. All three regulations provide that individuals subject to the procedures “shall not be authorized to enter the territory of a Member State”, despite the fact that they are, in practice, physically present on such territory (see Art 6 SR, Art 43 APR, Art 4.1 RBPR). This ‘legal exclusion’ entails the introduction of the contested “legal fiction of non-entry” into EU law, meaning that individuals who are physically present on a Member State’s territory are legally treated as if they are not, on the basis that their presence has not been authorized by a border official. This specious legal construct is used by States to curtail the human rights of the individuals to whom it is applied. Indeed, it appears that facilitating the use of detention for the purposes of the screening and border procedures, on questionable legal grounds, is the main reason for the adoption of the legal fiction of non-entry under the EU Pact. States may, for instance, purport to detain international protection applicants for the purposes of deciding “on their right to enter the territory” (see Art 10(4)(d) Reception Conditions Directive) or “to prevent [them] effecting an unauthorised entry into the country”, despite the individuals already being present on their territory.  While resorting to the legal fiction of non-entry cannot strip people of their rights, it does seek to create “legal space” for States to curtail the human rights of migrants and refugees upon entering their territory, raising concern about possible human rights violations, including the widespread and arbitrary use of deprivation of liberty. 

While the three regulations highlight the importance of “fundamental rights”, including the rights and best interests of the child, it is particularly concerning that none of them excludes depriving children of their liberty solely for immigration control purposes. While SR, the APR and the RBPR purport to allow immigration detention of children only in “exceptional situations”, stating that such detention should only be a measure of last resort and only be used when it has, purportedly, been assessed to be in the child’s best interests, the end result is that Member States are under the Pact not prohibited from detaining children solely for immigration control purposes. Even unaccompanied minors, who should as a rule be exempted from border procedures, may be subject to such procedures if “there are reasonable grounds to consider” them a threat to “national security or public order” (Art 53 APR). Considering that research has shown that accelerated and border procedures, in practice, lead to increased detention, and that any deprivation of liberty causes real and devastating harm to children, there is serious cause for concern that children will be subjected to harmful detention, potentially en masse. 

Under the three Regulations, affected individuals, including children, may be detained for a total of up to six to seven months – a period which may be extended up to nine months in situations of “crisis or force majeure” under the Crisis Regulation – posing a significant risk of devastating and long-term effects on the health and development of affected children.

However, the APR does provide for exemptions from the asylum border procedure in certain situations. This is the case when: i) necessary support cannot be provided to applicants with special reception or procedural needs; ii) there are relevant medical reasons for not applying the procedure; or iii) the necessary guarantees and conditions for detention are not met, and the border procedure cannot be carried out without recourse to detention (Art 53 APR). In this light, children should arguably always be excluded, considering both their specific needs and the high risk of harm, including to their health, stemming from such procedures in general, and immigration detention in particular. These exemptions also require Member States to carry out diligent vulnerability assessments, in good faith, in order to identify other situations requiring exemptions. Crucially, States also remain, at all times, including when implementing and applying the EU Pact, bound by their legal obligations under international human rights law. 

International Human Rights Law and Child Immigration Detention

Under international and EU law, everyone has the right to liberty and security of person. Any deprivation of liberty, including detention imposed for immigration control purposes, must not be arbitrary and must be carried out in good faith pursuant to a legal basis. It must also be necessary and proportionate to the aim sought, provide stringent procedural and judicial safeguards, and be used only as a last resort. These and the responsible State’s other human rights obligations in relation to deprivation of liberty apply, whether the detention is carried out on the territory, at the borders or extraterritorially, as they apply to anyone falling within the jurisdiction of the State.

When it comes to children, defined as anyone below the age of 18 (Art 1 Convention on the Rights of the Child), all refugee, asylum seeking, stateless and migrant children should, first and foremost, be treated as children. Their extreme vulnerability – whether or not their parents accompany them – is a decisive factor that takes precedence over considerations relating to the child’s immigration status. In addition, in all actions concerning children, an assessment of the child’s best interests must be undertaken separately and prior to any decision that will impact on the child’s life. 

Several human rights mechanisms and actors, including the UN Special Rapporteurs on the Human Rights of Migrants and on Torture, the Parliamentary Assembly of the Council of Europe, UN Treaty Bodies, clearly state that the immigration detention of children is, per se, not in their best interests and that the detention of vulnerable individuals, including unaccompanied children, is prohibited under international law. It is therefore clear that, under international law, children, including unaccompanied or separated children, should never be detained solely for immigration control purposes. 

In the case of accompanied children, their right to family life and unity entails, as a rule, that they should not be separated from their parents and family members.  This has sometimes been used to argue that, although children cannot themselves be detained solely for immigration control purposes, they could be detained together with their parents in order to preserve family unity, when this is assessed to be in the child’s best interests. This argument is however not tenable under international human rights law. This has been clarified by the Committee on the Rights of the Child and the Committee on the Rights of Migrant Workers, which have explicitly stated that children must never be detained because of either their or their parents’ migration status: “Every child, at all times, has a fundamental right to liberty and freedom from immigration detention” 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.” (Joint General Comment 4/23, para. 5). The two Committees have also specified that: 

When the child’s best interests require keeping the family together, the imperative requirement not to deprive the child of liberty extends to the child’s parents and requires the authorities to choose non-custodial solutions for the entire family.” 

Joint General Comment 4/23, para. 11

Following the adoption of the EU Pact, several UN human rights experts specifically called on EU Member States to prohibit child immigration detention, expressing concern that such detention is always a violation of children’s human rights and never in their best interests. Detaining children for immigration control purposes is therefore not in line with international human rights law.

If children are nevertheless detained for immigration control purposes, in order to respect the prohibition of torture and inhuman and degrading treatment, States must, at the very least, only use detention as a measure of absolute last resort, limit it to the strict minimum, and adapt detention conditions to the children’s age and needs, including by providing them with humane, safe conditions appropriate for children. In addition, States must ensure that children are granted the benefit of the doubt and presumptively treated as children unless and until proven otherwise, and that any age assessment procedure be carried out speedily and in a dignified manner.

Revision and Implementation of the EU Pact

With the stated intention of preventing persons subjected to screening and border procedures from absconding and from legally “entering” State territory, as mentioned above, the EU Pact requires Member States to “ensure the availability” of third-country nationals under the EU Screening, Asylum Procedure and Return Border Procedure Regulations. As a result, the EU Pact incentivizes the use of immigration detention, including for children. Such detention may become protracted, lasting for extended periods of time and in conditions not adapted to children’s needs. The EU Pact therefore entails a significant risk of increased and widespread detention and, as such, of violations of EU and international law. This is particularly clear in relation to children, who are at particular risk of harm stemming from detention and should under international human rights law never be deprived of their liberty for the purposes of immigration control. 

EU Member States should therefore revise the EU Pact to ban the immigration detention of children entirely and to ensure the Pact’s compatibility with international human rights law. Until such a revision can be achieved, Member States should prohibit immigration detention of anyone below the age of 18 at national level, to ensure that no child is deprived of their liberty for reasons of their or their parents’ immigration status. Anything else would amount to a violation of children’s rights under international human rights law.

Even under the Pact itself, States are prohibited from resorting to detention for the purposes of immigration control in most circumstances, as it may only be used as a last resort – and in the case of children only in “exceptional situations” and when it has been assessed to be “in their best interest”. In addition, any detention must always comply with safeguards that ensure respect for the right to liberty, the prohibition of inhuman and degrading treatment and other human rights, as provided for in both the EU Pact and international human rights law.

It is therefore crucial that in implementing the Pact, EU Member States ensure all safeguards in practice, in full compliance with international human rights law and standards. Member States should also ensure that the best interests of the child be given primary importance in all decisions affecting children, and that if any children are nevertheless subjected to detention, applicable safeguards and protections are applied fully and in good faith. Children should throughout the migration and asylum process be treated primarily as children, be regarded as holders of rights, rather than as objects of migration enforcement, and be provided with real alternatives to detention, respecting their human rights.  

This blog post is based on the briefing paper Never in the best interests of the child: Risks of child detention in the screening and border procedures under the 2024 EU Migration Pact published by the International Commission of Jurists in November 2024.