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Challenging the Legality of Child Detention

By: Louise Smith, barrister - Updated: 16 Feb 2018 | comments*Discuss
Child Detention Uk Immigration Asylum

In May 2010 the UK’s new coalition government announced that they intended to end the detention of children in immigration removal centres (detention centres). In 2009 over 1000 children were detained in the UK for immigration purposes. Some of these children may have been living in the UK for years prior to their detention.

International Law on the Detention of Children

The United Nations Convention on the Rights of the Child states that children should not be:

  • “deprived of [their] liberty unlawfully or arbitrarily”; and that,
  • any detention should be a “last resort and for the shortest appropriate period of time.”
Many EU countries impose limits on detention for immigration purposes but seven do not. The UK is one of the seven which has no time limit. In Sweden, immigration administration centres are open - allowing people to come and go. The Swedish experience suggests that families rarely run away. Some EU states use methods such as electronic tagging of parents considered to be a high flight risk.

Children’s Commissioner and Concerns About Child Detention

Children seeking asylum in the UK may be amongst the most vulnerable individuals in our communities. England’s Children’s Commissioner from 2005 to 2010, Professor Sir Al Aynsley-Green, published a series of shaming reports on the plight of asylum-seeking children. He highlighted what he considered to be failings in the way that the UK Border Agency (UKBA) deals with children, and said that they should be afforded the same humanity and dignity that we would wish for our own children.

The Commissioner concluded that there appear to be significant discrepancies between policy and what actually happens to children during an arrest. Arrest teams were not complying with guidelines designed to minimise the distress and anxiety experienced by children. For example, during the arrest process, children were not given sufficient opportunity to collect their personal belongings.

The loss of personal possessions was found to be one of the most de-humanising aspects of the arrest process for both children and adults. Children detained at Yarl’s Wood told the Commissioner that it felt like a prison and expressed feelings of loss and anxiety about belongings, pets, the absence of contact with friends and the general change in routine. The Commissioner also raised concerns about the healthcare given to children in detention. He noted that some children with serious illnesses - or whose condition deteriorated in detention - were still detained.

Challenging Child Detention in the Courts

In November 2010 campaigners condemned the opening of a new detention centre in Croydon. Just six months after the government promised to end the detention of minors, the new Croydon centre is specifically designed to detain asylum seekers and their children. In another development that angered campaign groups, the UKBA began piloting a scheme to remove families from the UK without informing them of the date on which they will be arrested and put on a plane. Families would simply be informed that, after an initial grace period of 72 hours, they could be deported at any time during the next three weeks.

Campaign groups are now trying to challenge the legality of child detention in the High Court. They hope that, if child detention is ruled to be illegal, it could immediately be halted. The case has been brought on behalf of two single mothers and their children who were detained by UK Border Agency officers after dawn raids on their homes. A ruling is expected in January 2011.

The campaign groups have also lashed out at Deputy Prime Minister Nick Clegg for his perceived failure to follow through on promises to end child detention. Under pressure, Mr Clegg subsequently announced that child detention would end by May 2011. Clegg has reportedly struggled to overcome opposition to this change in policy from the UKBA and the Home Secretary, Theresa May. Immigration officials are believed to have voiced concerns that ending child detention could make it harder to achieve effective immigration control.

The detention of children will rarely be in their best interests and, when done for administrative purposes, must pose a serious threat to their human rights and welfare. The government announced in December 2010 that it intended to use alternative methods of monitoring children and families subject to immigration control. Whether child detention does end by May 2011 - or simply continues under another guise - remains to be seen.

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Share Your Story, Join the Discussion or Seek Advice..
@Javid - If your application for asylum was refused and there is no more room for appeal then the best thing is to arrange to leave the UK. If you do remain you can apply for legal status when any of your children born in the UK become 7 years old.
TJ. - 16-Feb-18 @ 4:16 AM
We was asaylum seeker 5 yers ago. My case been refuse after 15 month. In this period I got dougher bone. Now I got 4 yers old doughter.2yr 6 month old 2nddoughter . We going reportin every1 year.Now I don't no. What we have to do.
Javid - 16-Feb-18 @ 12:11 AM
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