H.A. and Others v Greece (Appl.no.19951/16) - Third Party Intervention: The AIRE Centre, Dutch Council for Refugees, ECRE, ICJ


I.     Children’s inherent vulnerability has led international human rights law, including the European Convention on Human Rights (‘ECHR’), to accord special status to the child.  Under Article 3 of the UN Convention on the Rights of the Child (‘CRC’) the child’s best interests must not only inform all measures and decisions to which they may be subject, but also be a primary consideration when any such measures are being considered. Article 53 of the ECHR stipulates that the Convention rights must be construed in accordance with other international human rights obligations of States Parties, including the CRC. This is particularly important in relation to any deprivation of liberty where the primary consideration must be given to an individual child’s circumstances, in light of his or her best interests. A comprehensive assessment of the best interests of the child will presumptively exclude any resort to detention for children, when the detaining measures are being contemplated not in the context of furthering the child’s best interests but in the context of immigration control.

II.  The administrative detention of migrant children for immigration control purposes cannot fall within the scope of permissible detention under Article 5(1)(d) ECHR, which is intrinsically linked with the child’s educational supervision and protection needs. The administrative detention of migrant children will be arbitrary under Article 5(1)(f) ECHR where the child’s interests have not been a primary consideration in ordering the detention.

III.   Before any administrative measure is taken concerning unaccompanied children, the State must appoint a guardian and provide the unaccompanied children with access to appropriate information in a language they understand. If the State fails to appoint a competent guardian for an unaccompanied child and/ or access to information is not adequately guaranteed, the State has failed to meet the procedural safeguards designed to assess, and determine the child’s best interests. Any detention without these safeguards being observed will not respect the best interests of the child, and the detention is tainted with arbitrariness, in violation of the right to liberty under Article 5(1) of the ECHR.

IV.   Non-effective or misleading communication or a fortiori the absence of any communication of the reasons why an individual child is being detained constitutes a violation of Articles 5(2) and (4) even if the detention itself is not arbitrary.

V.  The interveners submit that, under Article 53 ECHR, as regards EU Member States, Article 5(1) ECHR must be interpreted in a manner consistent with EU law obligations binding on States as a matter of national law. EU Member States are obliged to provide conditions, procedures and information to children in order for them to have effective access to their rights under the Charter of Fundamental Rights of the EU (CFR), which includes Article 24 and guarantees their best interests as a primary consideration. The fundamental rights under the CFR must be secured for unaccompanied migrant children through, inter alia, the appointment of a guardian, the provision of understandable information on accessing the asylum procedure and information on their family rights under the Dublin Regulation. Where such safeguards are not present, nullified or impaired by unacceptable conditions of detention, the child’s rights under primary and secondary EU law are not observed.  

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