Detention of Children

Transcription

1 Detention of Children Adam Weiss and Esther Lieu At a glance On 19 January 2011 the European Court of Human Rights handed down its judgment in Popov v France. 1 The judgment built on five similar cases in the past six years before the Court concerning the immigration detention of children. This article considers the legal and practical implications of the judgment in light of the UK Government s commitment articulated in May 2010 but not quite yet realised to end the detention of children for immigration purposes. Part 1 sets out the Strasbourg case law, culminating in Popov; Part 2 discusses the current situation of immigration detention of children in the UK; Part 3 considers how legal practitioners might use the Strasbourg case law to push the Government closer to its stated goal. Part I Article 5(1) of the European Convention on Human Rights and Fundamental Freedoms ( ECHR ) ECHR sets out an exhaustive list of six situations where States are permitted to deprive people of their liberty. The sixth relates specifically to immigration: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2 Whereas detention on other grounds under art 5 (eg prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ) 3 must be necessary, in the case of immigration detention, the authorities need to show that they are complying with domestic law and acting with due diligence to carry out the removal. 4 The Court will apply stricter scrutiny to cases where domestic law lacks the necessary quality to allow immigration detainees to foresee when they will be released. However the European Court of Human Rights ( the Court ) has made it relatively easy for Member States to detain migrants without breaching art 5(1). 5 The exception to the Court s arguably light-touch approach to immigration detention is the detention of children. This section considers how the Court s case law, developed over the 1 Application no 39472/07 and 39474/07, judgment 19 January Article 5(1)(f) Convention for the Protection of Human Rights and Fundamental Freedoms. 3 Article 5(1)(e) ECHR. See, eg S v Germany (Application no 3300/10), Baudoin v France (Application no 35935/03). 4 See, eg Saadi v United Kingdom (Application no 13229/03), para Mathloom v Greece (Application no 48883/07), judgment 24 April IANL (26-4)-cpp.indd /10/ :22

2 Immigration, Asylum and Nationality Law, Vol 26, No 4, 2012 five cases decided since 2006, has now made it arguably impossible for States to detain children for immigration purposes without breaching arts 3, 5 and/or 8 of the Convention, and discusses the implications thereof. The first judgment in this series and the only one done in English is Mubilanzila Mayeka and Kaniki Mitunga v Belgium. 6 The five year-old applicant was from the Democratic Republic of Congo ( DRC ). The child s uncle, a Dutch citizen, brought her from the DRC to Belgium, claiming that she was his daughter. When the Belgian authorities did not believe him, he told them the truth (that he was her uncle), and on informing them that the child s mother (also an applicant) was in Canada where she had been granted refugee status, the authorities telephoned the mother. The following day the child was detained in a detention centre ( Transit Centre no 127 ) designed for and populated by adults. She stayed in Transit Centre no 127 for two months before the Belgian courts ordered her release from detention 7 and the authorities immediately returned her to the DRC. 8 The case attracted such publicity in Canada and Belgium however, that the Belgian authorities swiftly organised the child s travel from the DRC to join her mother in Canada. 9 Often in the Court s case law, when faced with allegations of multiple violations of the Convention arising out of the same incident, the Court will limit itself to finding a violation of one provision of the Convention. 10 That was not the case here. The Court examined this matter under arts 3 11, 5 12 and 8 13 in turn, finding violations of all of these provisions. The Court re-iterated its case law that children were vulnerable members of society needing special protection; indeed the word vulnerable appears three times in the space of three paragraphs of the art 3 analysis 14. Leaving a child in a detention centre for adults was inhuman, as was returning her to the DRC without ensuring she would be met by someone there who would look after her. Leaving her mother in a state of distress over the child s fate (and, particularly, not informing the mother that the child had been returned to the DRC) also reached the art 3 threshold; furthermore the Belgian authorities had separated the child from her uncle, turning her into an unaccompanied child and had separated mother and child unnecessarily, violating art 8. Perhaps the most interesting part of the Court s analysis in this case in relation to art 5(1) was its finding that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention, 15 citing a case about the detention of people with mental illness, which can only occur in a hospital, clinic or other appropriate institution. 16 Just as it is not appropriate to place a psychiatric patient in a prison, the Court found it was inappropriate to place this child in a closed centre intended for illegal immigrants in the same conditions as adults, in conditions not adapted to the position of extreme vulnerability [of an] unaccompanied foreign minor Application no 13178/03, judgment 12 October Application no 13178/03, paras 62, Application no 13178/03, para Application no 13178/03, para See, eg BS v Spain (Application no 47159/08), para Application no 13178/03, paras Application no 13178/03, paras Application no 13178/03, paras Application no 13178/03, paras Application no 13178/03, para Aerts v Belgium Application no 25357/94, judgment 30 July 1998, Application no 13178/03, para IANL (26-4)-cpp.indd /10/ :22

3 Detention of Children The judgment clearly stands for the principle that the detention of unaccompanied children will almost never be lawful. This was confirmed in Rahimi v Greece 18 last year, concerning the detention of a fifteen year-old asylum seeker on the island of Lesbos in Greece for two days. Findings of violations in that particular case were in all likelihood inevitable regardless of the applicant s age: the Court had already found immigration detention conditions in Greece inadequate in several cases involving adults and found the Greek legislation on reviewing immigration detention to fall short of the standards art 5 requires. 19 The Court nonetheless emphasised the applicant s vulnerable status as an asylum-seeking child (albeit a much older one than Kaniki Mitunga) and the need to justify the detention of any child in the light of the principle of the best interests of the child 20 as set out in art 3 of the UN Convention on the Rights of the Child: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. Whilst the Mubilanzila judgment left unaddressed the situation of accompanied children, detained with their parents, the case of Muskhadzhiyeva v Belgium, 21 gave the ECtHR the opportunity to study such circumstances. Muskhadzhiyeva v Belgium 22 involved the detention of a mother and three children who claimed asylum in Belgium but were identified as having already been present in Poland, making that EU Member State responsible for examining their asylum claim. Unlike the detention centre in Mubilanzila (Transit Centre no 127), this facility (Transit Centre no 127 bis) was at least in theory designed to house children, inasmuch as it had a wing for families as well as classrooms and teachers. The Court reproduced in its judgment damning reports about the detention centre from several bodies showing that the detention centre was nonetheless an unsuitable environment for children. 23 The fact that the children were accompanied by their mother did not undermine the relevance of the Mubilanzila ruling: Nonetheless, in the Court s opinion, this factor [the fact that the children were detained with their mother] does not exempt the authorities from their obligation to protect children and to take necessary measures under Article 3 of the Convention. The Court notes that the four applicant children were aged seven months, three and a half years, five years and seven years 18 Application no 8687/08, judgment 5 April SD v Greece Application no 53541/07, judgment 11 September 2009; AA v Greece Application no 12186/08, judgment 22 July Application no 8687/08, para Application no 41442/07, judgment 19 January Application no 41442/07, judgment 19 January Application no 41442/07, paras IANL (26-4)-cpp.indd /10/ :22

4 Immigration, Asylum and Nationality Law, Vol 26, No 4, 2012 at the time. The age of at least two of them was such that they realised where they were 24 The ECtHR found violations of arts 3 and 5(1) in respect of the children but not their mother, contrasting how the Court deals with the immigration detention of children compared with adults. The applicants also alleged a violation of art 8. The ECtHR did not agree, going so far as to find the claim manifestly ill-founded and therefore inadmissible: this case does not present a problem of family reunification, as the first applicant and her children were detained together. The Court does not see how, in the circumstances of the case, the authorities failure to find alternatives to detention violated the applicants right to respect for private life and this question has, in any event, been dealt with under Article Perhaps the Court simply wanted to stress, in the light of the failure to find a violation of the mother s art 3 and art 5 rights, that it was not open to the Belgian authorities to detain her and not the children, as this would have violated Article 8. The Court s failure to appreciate the strain that detention put on the family was nonetheless troubling, particularly given that the court accepted the mother had reason to fear return to Poland because she had suffered domestic violence there from her husband (a fact mentioned only in passing). 26 This art 8 ruling was overturned just over two years later in Popov v France, 27 concerning the detention of a couple with their two children in France: [The Court] is of the view that the best interests of the child cannot be limited to simply maintaining family unity. Rather, the authorities must put in place all of the measures necessary to limit as much as possible the detention of families with children and to preserve their right to a family life effectively. 28 The judgment does include a caveat following this: Therefore, in the absence of any indication that the family intended to abscond from the authorities, detention in a closed facility for fifteen days appears disproportionate to the aim pursued 29. Detention of a family might be compatible with art 8 if there are clear indications the family intend to abscond. States are still likely to get caught by arts 3 and 5(1) also violated in this case in respect of the children but not the parents in Popov because again, the detention facilities were not adapted to meet the needs of children. As in Popov, in Kanagaratnam v Belgium 30 the detention of a mother with her children was held to have violated art 3 in respect of the children, but not the parent. The applicants had been detained, yet again, in the now infamous Transit Centre no 127 bis, for four months 31 and the judgment provides perhaps the most comprehensive summary of when and why detaining children for immigration purposes will violate art 3: [T]he Court is of the view that by placing the children in a closed facility, the Belgian authorities subjected them to feelings of anxiety and inferiority and knowingly took the risk of comprising their development. 32 The Court s case law delineates a clear process: any state detaining children for immigration purposes regardless of whether they are detained with their parents must pass three hurdles. The first is art 3 ECHR. The ECtHR has not gone so far as to say that a place where people are deprived of their liberty for immigration purposes is inherently inhuman and degrading for children, yet it is difficult, even if the Court has not dismissed that possibility, to envision under what conditions the Court will find the detention of a child for immigration purposes 24 Application no 41442/07, paras Application no 41442/07, para Application no 41442/07, para Application no 39472/07 and 39474/07, judgment 19 January Application no 39472/07 and 39474/07, para Application no 39472/07 and 39474/07, para Application no 15297/09, judgment 13 December Application no 15297/09, para Application no 15297/09, para IANL (26-4)-cpp.indd /10/ :22

5 Detention of Children compliant with art 3; the Belgian authorities attempts to create a detention facility adapted to children failed. While it is easy to understand why a person with mental health problems should be detained in a hospital or clinic and not a prison, there is no place that seems capable of being suitably adapted for the detention of an undocumented child. This is closely connected to the second hurdle: art 5. Prisons are only suitable for prisoners; those with mental illness can only be detained in hospitals or clinics: what kind of place is consistent with the immigration detention of children? The third hurdle is art 8. In detaining a child for immigration purposes, the authorities run the risk threatening the moral and physical integrity of an unaccompanied child and/or separating families, and, most of all, being unable to justify detention in the light of the best interests of the child, as Rahimi requires. Part II On 12 May 2010 the UK coalition government s Programme for Government committed to end the detention of children for immigration purposes, 33 a commitment which received a broad, if cautious welcome. Two years on, and despite a notable drop in the number of children held for immigration purposes, figures from short-term holding facilities at UK ports of entry and the so-called pre-departure accommodation in which children and families are still routinely held suggest that the Government are yet to deliver fully on their commitment. From 2005 to 2009 an estimated 2000 children a year were detained with their families for immigration purposes. 34 In 2008, 212 of these children were recorded as being detained for over 28 days 35 and in 2009, 1065 children were detained in Yarl s Wood IRC for an average of 15 days, 36 prompting the deputy Prime Minister to call the practice which saw innocent children imprisoned shameful. 37 Overnight detention at Dungavel House Immigration Removal Centre ( IRC ) officially ended shortly after May 2010, followed by the closure of the family unit at Yarl s Wood IRC in December In the same month the UK government published details of its new policy on ending the detention of children following a review 38 in consultation with UKBA stakeholders and relevant experts initiated in June This policy set out a new family returns process, which from 28 February 2011 comprised of three clear stages intended to enable families to leave the UK with dignity, ensuring the welfare of children at all times 40 following the refusal of a family s asylum application or exhaustion of appeal rights. 33 HM Government, Ref: /0510 The Coalition: our programme for government, May 2010, p Migration Observatory: Briefing: Immigration Detention in the UK, Stephanie J. Silverman, Ruchi Hajela, 22 May Ministerial authorisation was required for all detention exceeding 28 days: Report on an announced inspection of Yarl s Wood Immigration Removal Centre, HMIP, 4 8 February 2008 para UKBA letter to Liberty, 18 June See also Her Majesty s Inspectorate of Prisons, Report on an unannounced full follow-up inspection of Yarl s Wood Immigration Removal Centre, (9 13 November 2009). 37 Office of Deputy Prime Minister speeches, Child detention speech, 16 December The review was criticised by some NGO s for being too narrowly focused on the removal end of the process and not sufficiently wide ranging. See, for example: Review into Ending the Detention of Children for Immigration Purposes Joint Response from ADASS/ADCS Asylum Task Force, COSLA, LGA and WLGA, publicrecords/documents/communityandliving/pdf/equalitydocs/nrpf_children_detention.pdf; Despair, hope and despair again: the rollercoaster ride towards ending child detention, Clare Sambrook, 17 June 2010 ( claresambrook.com/index-page-stories/the-new-londoners.html). 39 Review into ending the detention of children for immigration purposes (June to July 2010), led by David Wood (Strategic Director of the Criminality and Detention Group of the UKBA) sitecontent/documents/policyandlaw/consultations/26-end-child-detention/led by David Wood (Strategic Director of the Criminality and Detention Group of the UKBA). 40 UKBA update, New family returns process begins, 28 February 2011 ( sitecontent/newsarticles/2011/march/03new-family-returns-process) IANL (26-4)-cpp.indd /10/ :22

6 Immigration, Asylum and Nationality Law, Vol 26, No 4, 2012 The first is the Assisted Voluntary Return stage, in which a family returns conference is held with UKBA staff to discuss the family s return home. In April 2011 the law was amended so that families who made a voluntary departure within six months of their case being refused had their ban on re-entry shortened from five to two years. 41 The second stage, for families who do not voluntarily depart under the first stage, is a Required Return, whereby the UKBA arrange the removal of the family, giving the family a minimum of two weeks notice prior to the date of removal and allowing the family to remain living in their community in the interim and to self check-in at the airport. Where families fail to return under stage two, an Independent Family Returns Panel recommends a family return plan to enforce an Ensured Return. At this stage, the full range of statutory powers are open to the authorities including limited notice of removal, 42 escorted check in, moving the family to open accommodation, or in some cases, pre-departure accommodation prior to departure. The independence of the Panel, comprised of an independent chair and a pool of ten welfare experts, 43 has been subject to several criticisms; of particular concern is the appointment of Dr John W Keen, who is a paid adviser to the UKBA on whether people are medically fit to be deported, and whose assessment of a vulnerable patient was deemed irrational and tainted by the then Mr Justice Leveson in a 2006 High Court Judgment. 44 The Home Office, in response to questions concerning the independence of Dr Keen, said: We don t consider that to be a conflict of interest as he acts in an independent capacity in both of these roles as an expert medical adviser. 45 An evaluation of the overall effectiveness of the Family Returns Process has been commissioned by the UKBA and will be published in late Pre-departure accommodation In August 2011 a new pre-departure accommodation ( PDA ) centre was opened under Sch 2 to the Immigration Act Optimistically named Cedars ( Compassion, Empathy, Dignity, Approachability, Respect and Support ), it is operated on behalf of UKBA by private contractor G4S and comprises nine self-contained apartments for families (each accommodating up to six people), 24 hour health care, a prayer room and other conveniences. The Government insist that Cedars is not an immigration removal centre and that its family-friendly environment will respect family privacy and independence. 48 Annex D of the Pre-departure Accommodation Operating Standards provides that: 41 HC Deb 16 March 2011 col: 14WS ( wmstext/110316m0001.htm). 42 Amended as of September 2011 from five days to 72 hours, ILPA: Detention of children 5, 3 August 2011, org.uk/infoservice.html. 43 UKBA update, Child experts recruited to Family Returns Panel, 25 April 2012 ( uk/sitecontent/newsarticles/2012/april/70-welfare-children). Details of panel members available here: ukba.homeoffice.gov.uk/aboutus/workingwithus/indbodies/04independent-family-returns/. 44 R (Nahid Varnaseri Ghandali v London Borough of Ealing [2006] EWHC 1859 (Admin) 11 July 2006, para Controversial doctor and Barnardo s serve UK s flawed child detention policy, Clare Sambrook, 15 June 2012, ( s-serve-uk s-flawed-childdetention-poli). 46 UKBA, Key Data on family returns process 2011 and pilot data, documents/aboutus/family-return-data/. 47 Schedule 2 provides for the detention of persons pending examination or pending removal from the United Kingdom. 48 Hansard Debate 16 December 2010 col: 127WS ( cm101216/wmstext/101216m0001.htm) IANL (26-4)-cpp.indd /10/ :22

7 Detention of Children Families will be treated with respect and dignity throughout their stay in the facility. Arrangements will take account of the requirement for functions to be discharged with regard to the need to safeguard and promote the welfare of children, as required by section 55 of the Borders, Citizenship and Immigration Act It is difficult however, to see how Cedars functions in any way other than as a place where people are deprived of their liberty. Children and families held at Cedars are arrested and administratively detained under the provisions of the 1971 Immigration Act 50 and are subject to the same Control and Restraint Techniques used across other detention centres. 51 The Centre, officially a Short-Term Holding Facility (rather than Immigration Removal Centre) is run by G4S (who run three other immigration detention centres) and is subject to the scrutiny of Her Majesty s Inspector of Prisons. 52 As of 30 April 2012, the Operating Standards on managing noncompliance (governing the conduct in Cedars) remained unfinalised. In the interim, according to Damien Green MP, the Centre is being run in accordance with general Pre-Departure Accommodation Operating Standards, 53 and whilst not bound by the Detention Centre Rules, the Centre is remains subject to Detention Service Orders. 54 The lack of consistency leaves children at risk of being subject to measures the legality of which remains unclear. Families can be held in Cedars for up to 72 hours, or, with ministerial authority, up to a maximum of seven days. In 2011, 99 children entered detention, 79 of whom were held at either Tinsley House IRC or Cedars. In September of that year, 11 children entered Cedars of whom six were held for four days or more days. In the first quarter of 2012, 53 children entered detention, of which 35 were held in Cedars. 55 Several organisations have expressed deep concern saying that changes are superficial and pointing to security measures including a 2.3 metre high boundary fence, 24 hour surveillance cameras, full body-searches on entry, the restriction on families entering or leaving the accommodation and restricted ability to receive visitors. Further criticism was directed at the children s charity Barnardo s who contracted to work with the children housed in Cedars, with groups including Medical Justice and No Borders 56 saying that in doing so they were helping to re-brand child detention rather than to end it. In response, Barnardo s set out a series of red lines 57 governing their involvement, including a commitment to speak out if the level of force used with a family is disproportionate to the family circumstance, a demand for an immediate review of personnel should they report concerns around any staff member s behaviour and a 49 UKBA Pre-departure Accommodation Operating Standards, 2 September 2011, Annex D No Section UKBA Pre-departure Accommodation Operating Standards, 2 September Section UKBA Pre-departure Accommodation Operating Standards, 2 September UKBA Pre-departure Accommodation Operating Standards, 2 September 2011 ( sitecontent/documents/policyandlaw/op-standards-pre-departure/op-standards-pre-dep/op-standards.pdf?view=binary). 53 Hansard Commons Debates, 30 April 2012 [106064]. ( cmhansrd/cm120430/text/120430w0001.htm). 54 Detention Service Orders are instructions outlining procedures to be followed by UKBA staff and contractors working within the detention estate: 55 Of the rest, 12 were held in Tinsley House and six (age-dispute cases) in Campsfield House, Colnbrook Short Term and Morton Hall. Of these 53 children, 25 were ultimately granted temporary admission/release and 27 removed from the UK: Immigration Statistics January March 2012, Detention ( 56 Child detention: has the government broken its promise to end it? The Guardian, 17 October 2011, co.uk/uk/2011/oct/17/child-detention-government-broken-promise. No Borders activists occupy Barnardo s HQ over child detention, 17 February 2012, 57 Red Lines: ref=70802&year=2011&month= IANL (26-4)-cpp.indd /10/ :22

8 Immigration, Asylum and Nationality Law, Vol 26, No 4, 2012 withdrawal of services if Tinsley House is used as an overflow for families when Cedars is full. Barnardo s also committed to speak out publicly if any family was held at Cedars more than once or for more than one week maximum, and this was tested on 14 December when a family were held for between two and 27 minutes over one week. In a press release they said they were having a robust dialogue with UKBA about why this occurred and what can be done to prevent any recurrence 58. Short-Term Holding Facilities The Government s commitment to ending the detention of children in Immigration Removal Centres (IRC) did not extend to ending the use of short-term holding facilities for families at UK ports of entry, which maintain our ability to protect the border. 59 According to the UKBA, these short-term facilities would however be used sparingly for a few dozen families each year where logistics or safety makes pre-departure accommodation unworkable. 60 The designation of Cedars as one such short-term holding facility (as opposed to IRC) is just one instance of government re-branding in order to adhere to their commitment to cease the immigration detention of children. From December 2010 until February 2011, 174 children, including 16 unaccompanied children, were detained at the short-term holding facilities at Heathrow Airport. The average length of detention was 8 10 hours; 61 however the longest periods of detention were just under 24 hours 62 and 24 children were held for over 18 hours. 63 Between May and August 2011, 697 children were detained in Greater London and South East short term holding facilities 64 although The Children s Society, who obtained those figures were unable to ascertain how long and for what reason the children had been detained. In light of these numbers, it came as no surprise that the Independent Monitoring Board, in its 2012 annual report on the holding facilities at London Heathrow Airport, declared that the detention of children continues despite the government saying that it would end the detention of children for immigration purposes. What is of concern, and where the authorities may face future challenges, is that the conditions in which children are detained, almost every day and sometimes overnight, are degrading and disgraceful. 65 The holding rooms are wholly unsuitable for the detention of children ; 66 while there are separate rooms for children in all the terminals except Terminal 4, they are very small, with the family space in Terminal 3 measuring 9 square metres, and merely partitioned off from the main room which the children inevitably use. Children are often exposed to disruptive or disturbing behaviour exhibited by adult detainees causing the child to become even more distressed. The 58 Press Release: Statement on use of pre-departure accommodation, Wed 14 December 2011, news_and_events/media_centre/press_releases/press_releases_archive.htm?ref= HC Debates 16 December 2010 col 127WS. 60 UKBA, Review into ending the detention of children for immigration purposes, December 2010 [DEP ] hours 20 minutes (Terminal 3) and 9.9 hours (Terminal 4). 62 Authorisation at UKBA director level is required for detention over 24 hours. 63 HM Chief Inspector of Prisons, Reports on an unannounced inspection of the short-term holding facility at Heathrow Airport Terminal 4, 3 March 2011, para 1.41 and Report on an unannounced inspection of the short-term holding facility at Heathrow Airport Terminal 3, 3 March 2011, para Almost 700 detained in four months, The Children s Society, 17 October 2011 ( news-views/press-release/almost-700-children-detained-four-months). 65 Report of the Independent Monitoring Board on the Non-Residential Short-term holding facilities at London Heathrow Airport for the year February 2011 January 2012, Executive Summary para 1.2, 2.1 ( gov.uk/downloads/publications/corporate-reports/imb/annual-reports-2012/heathrow pdf). 66 Paragraph IANL (26-4)-cpp.indd /10/ :22

9 Detention of Children report notes that there was little child-friendly seating and few activities suitable for older children. The hygiene and sanitation provisions were poor and often degrading, with none of the facilities at Heathrow Airport having showers and in one case no wall or partition shielding the lavatory cubicle doors from the view of the rest of the room. The report reiterates its previous findings, saying the number of children held at Heathrow justifies provision of special accommodation for families on the airport and the facilities at Terminals 3 and 4 in particular, fall well short of requirements by their size and nature. 67 In response the UKBA have recently confirmed that Tinsley House remains the official overnight accommodation for families and children. However the IMB report considers that the distance from Heathrow to Tinsley House is such that it is of little practical use and describes a woman with three children who, having been detained and refused admission in the afternoon, arrived at Tinsley House at 00:10, only to be woken and forced to leave for the airport at 05:50, leaving the children and herself with very little sleep. The IMB conclude that accommodation at IRCs for individuals held at Heathrow is inconvenient or impossible, an untenable situation reflected by the fact that on the basis of cases observed by the Board, just 10% of detainees held overnight were taken to an IRC. Part III The cost of detaining children and families with children for immigration purposes, in compliance with their human rights, is yet to be calculated. The UK government appears to be playing a game that the Belgium government attempted to play following the judgment in Mubilanzila: trying to design a facility that is suitable for children and families with children but that also guarantees that they will be able to carry out the forced removal of the people in those facilities. The European Court of Human Rights has left open the possibility of such a facility. By comparing the situation of children in immigration removal centres to that of psychiatric patients in prison, the Court has suggested that there is some kind of place suitable for children who are going to be forcibly removed; by noting that the detention of the Popov family for fifteen days in the absence of any indication that the family intended to abscond from the authorities suggests that shorter periods of detention (72 hours?) in cases where there are clear indications of an intention to abscond (potentially where a family has agreed in the past to check themselves in at the airport and then has failed to show up) has suggested a space in which the UK can act, although it is unclear how open that space remains when the rights of the child are fully taken into account. Despite those caveats there are two important points for UK practitioners challenging the detention of children in Cedars and elsewhere. The first is that the European Court of Human Rights has not yet, when asked, approved of the detention of children for immigration purposes. In the light of this, any detention of children seems open to challenge and must be tested against the principles the Court has set out under arts 3, 5 and 8. Second, the Strasbourg Court is willing to look past rhetoric and examine the reality of life in detention for children. The most relevant case in this respect is Mushkhadzhiyeva. The Belgian Government s description of Transit Centre 127 bis sounded very good: a special wing for families with teachers and social workers present seemed well adapted for children. The reality, revealed from reports by NGOs and independent government agencies revealed scenes of confusion and anguish. The UK must do more than re-brand immigration detention for children. Indeed, the case law so far does not 67 Paragraphs 10.10, IANL (26-4)-cpp.indd /10/ :22

10 Immigration, Asylum and Nationality Law, Vol 26, No 4, 2012 make clear what exactly the UK must do to comply with the Convention. The practitioner s job, in challenging the immigration detention of children is much easier; thanks to the case law the Strasbourg Court has so far delivered on this subject. Adam Weiss and Esther Lieu The AIRE Centre IANL (26-4)-cpp.indd /10/ :22