Last summer, people across the globe expressed outrage when U.S. immigration officials began separating children from their parents at the U.S.- Mexico border and placing them in hastily set up camps and cages. Absent from much of the criticism, however, was any recognition of the fact that children are detained for immigration-related reasons in dozens of countries, all of which—with the exception of the United States—have ratified the Convention on the Rights of the Child (CRC), which celebrates its 30th anniversary in 2019.
While the Trump administration’s family-separation policy was particularly cruel and has had devastating consequences for thousands of children,the fact that so many countries that have ratified the CRC continue to place children and families in immigration detention is deeply troubling. As the Committee on the Rights of the Child, which oversees implementation of the convention, now recognises, there can be no justification for locking up children in immigration proceedings because it “conflicts with the principle of the best interests of the child,”one of the cornerstone principles of the global human rights framework, established in Article 3 of the CRC.
It is true that many countries appear to be searching for “alternatives” to the immigration detention of children, and important normative bodies like the Council of Europe have made this issue a priority. But states stubbornly resist relinquishing this practice, a fact that the Global Detention Project pointed out in numerous publications and submissions to human rights bodies during the course of 2018.
These policies often appear bizarre or banally callous because they employ misleading language that masks the threat they pose to children. For instance, in Canada children are “housed” as “guests” of their parents in immigration detention. In France, Poland, Spain, and numerous other countries children “accompany” their parents in detention centres. Such policies can make detained children “invisible” to the law, preventing them from accessing basic legal protections that are offered to other detainees—including hardened criminals—while denying them adequate education, healthcare, and nurturing environments.
The continued insistence by states that immigration enforcement decisions take precedence over considerations of the well-being of children is also reflected in the much-anticipated Global Compact for Safe, Orderly and Regular Migration (GCM), adopted in December 2018. As we discuss later in this Annual Report, there is much that is laudable in the GCM, including its insistence that immigration detention only be used as a measure of last resort and its re-iteration of long-standing fundamental norms requiring that detention “follows due process, is non-arbitrary, based on law, necessity, proportionality and individual assessments.”
Concerning children, the GCM encourages states to apply “alternatives to detention” while “working to end the practice of child detention.” But the compact falls short of recognising immigration detention’s violation of the “best interest” principle or calling for the prohibition of child detention.
As the GDP and many others have pointed out, while the “alternatives” framework may have a rationale in the context of adults, its application to children is contradictory and perilous. If, as many authoritative rights agencies now claim, the immigration detention of children is fundamentally at odds with their best interests, then “alternatives” likewise should not apply since by definition they form part of detention procedures. In effect, encouraging states to consider “alternatives” for children may reinforce the original policy of detaining them. This is a quandary that we must not ignore.
This point was underscored by the UN High Commissioner for Refugees in its 2018 alternatives to detention assessment toolkit: “It is improper to refer to [child] reception measures as alternatives to detention for children, because children should not be detained for immigration related purposes.”
Herein lies the crux of the dilemma of immigration detention: As long as states insist that their sovereign rights trump the individual rights of non-citizens, any seeming “solution” to detention that does not explicitly and unambiguously define a path to diminishing the practice may ultimately lead to its persistence and growth.
We at the Global Detention Project do not pretend to have all the answers to this dilemma. But we hold in high esteem those who tirelessly—and self-critically—seek out ways to prevent abusive forms of detention and to challenge the allure of detention to security-minded authorities. This can often seem a thankless struggle. With each new “crisis,” the small gains that were previously made can be easily erased. What is more, some achievements (like improving the conditions of detention) can appear in hindsight plagued with unintended consequences (such as increased detention).
How do you measure success when things seem to be getting worse? It is a question that human rights organisations often face. One way to respond is by asking a counterfactual: What would the world look like if we were not there to push back? That is a legitimate question. But it lacks concrete detail, and thus may seem compelling to few.
In this Annual Report, we discuss many concrete examples of how the work of the GDP over the past year has had an impact. We discuss, for instance, the growing use of the GDP’s online database the Global Immigration Detention Observatory, and the role it has played in calls for change. We highlight how UN human rights mechanisms have made calls to action reflecting our recommendations while media outlets across the globe have made use of our information to bring public attention to the plight of detainees. We feature cases where the GDP website has helped connect families with detainees. And we reflect on how our interactions with academics, NGOs, government officials, and international organisations have helped build new consensus on reforming detention institutions.
With support from our key institutional partners—the Oak Foundation, the Open Society Foundation, and the Human Security Division of the Swiss Federal Department of Foreign Affairs—we look forward to building on these efforts while continuing our work to ensure that vulnerable migrants, refugees, and asylum seekers are treated with respect and dignity.
Michael Flynn (Executive Director) and Roberta Cecchetti (President)