ECtHR - Administrative detention of children in the context of deportation procedures

Tuesday, July 12, 2016
  • A.B. and Others v. France (no. 11593/12) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • A.M. and Others v. France (no. 24587/12) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • R.C. and V.C. v. France (no. 76491/14) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • R.K. and Others v. France (no. 68264/14) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016
  • R.M. and Others v. France (no. 33201/11) [Articles 3, 5 §§ 1 and 4, 8], 12 July 2016

In the cases of A.B. and Others v FranceA.M. and Others v FranceR.C. and V.C. v France,R.K. v FranceR.M. and Others v Francethe applicants had complained to the ECtHR that the placement of their children in the administrative detention centres amounted to inhuman and degrading treatment in breach of Article 3 ECHR. In addition, the applicants alleged that this placement was contrary to Article 5 § 1 ECHR (the right to liberty and security) and that the available remedies were ineffective under Article 5 § 4 (right to speedy review of the lawfulness of detention). The applicants, relying on Article 8 ECHR, also complained that their placement in administrative detention had infringed their right to respect for family life. 

Article 3 ECHR

The Court reiterated that it had repeatedly found a violation of Article 3 ECHR regarding the administrative detention of foreign national children (Popov v France,  Muskhadzhiyeva and Others v. BelgiumMubilanzila Mayeka and Kaniki Mitunga v BelgiumRahimi v Greece,Kanagaratnam v Belgium). The Court reiterated that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of an irregular immigrant. In addition, asylum seeking children have specific needs that are related in particular to their age, lack of independence, and status.

In the present cases, the Court noted that, although the material conditions in certain centres were appropriate, the conditions inherent in establishments of this type are a source of anxiety for young children. The Court therefore concluded that, given the children’s young age, the duration and conditions of their detention, the French authorities had subjected the children to treatment in breach of Article 3 ECHR.

Article 5 ECHR

The Court clarified that in order to fall under Article 5 § 1 f) ECHR, the deprivation of liberty of the children must be necessary to achieve the objective pursued, namely to ensure the expulsion of the family. The Court acknowledged that the deprivation of liberty which resulted from the parents’ legitimate decision not to entrust their children to another person was not, in principle, contrary to the domestic law. However, the Court emphasised that, where children are present, the domestic authorities must ensure that the placement in administrative detention is a measure of last resort for which no alternative measure is available.

In the cases A.B. and Others v France, R.K. and Others v France and R.M. and Others v. France, the Court was not persuaded that the domestic authorities had verified that the family’s placement in administrative detention was a measure of last resort for which no alternative was available. It therefore found a violation of Articles 5 § 1 and 5 § 4 ECHR in respect of the children.

Article 8 ECHR

In A.B. and Others v. France and R.K. and Others v. France, the Court also found a violation of Article 8 ECHR. In particular, it seemed that the authorities had not taken all the necessary steps to enforce the removal measure as quickly as possible and thus limit the time spent in detention. In the absence of a particular risk of absconding, the administrative detention of the family seemed disproportionate to the aim pursued. The Court therefore held that there has been a disproportionate interference with the families’ right to respect for their family life.

Based on an unofficial translation by the ELENA Weekly Legal Update.

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Best interest of the child
Child Specific Considerations
Effective access to procedures
Effective remedy (right to)
Family member
Family unity (right to)
Vulnerable person