CYIL 2012

DALIBOR JÍLEK CYIL 3 ȍ2012Ȏ In close connection with Article 37 of the Convention, the Committee on the Rights of the Child fixes separate attention on the issue of detaining the child in an immigration situation. The Committee refers here to a general rule 147 that an unaccompanied or separated child should not be detained. The Committee considers the detention of a child due to its immigration or residential status or its absence under internal law to be prohibited as interference in its personal liberty. 148 The detention of a child could generally be a direct consequence of the illegal immigration status of the parents – such detention should likewise be prohibited. The detention of a child for immigration purposes, but on different grounds, is permitted as an exception by the Committee on the Rights of the Child. The application of this general principle is supported by the Council of Europe Commissioner for Human Rights in an official opinion, in which he requires minors to be detained to an absolute minimum. 149 This same exceptionality regarding the deprivation of liberty is applied to children as asylum seekers. The European Union Agency for Fundamental Rights (FRA) argues in a similar way. It recommends the introduction by EU members of a strong presumption into their internal laws, preventing the administrative detention of children. FRA prioritizes alternative, more lenient measures for encroaching on the liberty of the child. 150 According to the Committee on the Rights of the Child, complementary implementation of Article 37 b) and Article 3 (the principle of the best interests of the child) should result in the adoption of a general rule that children in an immigration situation should not be detained. The Committee finds compatibility between both Convention norms and the other provisions of the Convention on the rights of the child. Not only does the Committee hold an opinion on the compatibility of the principle of the best interests of the child with the norm permitting administrative detention, but this is also anticipated by state legislators. The Lithuanian Aliens Act permits the detention of the child in extreme cases when the deprivation of liberty is in line with its best interests. 151 4.2.3 Right of the child to liberty and the negative permission of administrative detention of a child in the immigration situation The inner relationship of the two norms within the Convention on the Rights of the Child is also seen in the opposite way. The relationship between these norms is perceived as one of incompatibility . A unilateral conflict of norms in the Convention 147 Committee on the Rights of the Child, General Comment No. 6 (2005), Treatment of unaccompanied and separated children outside their country of origin, CRC/GC2005/6, 1 September 2006, p. 18. 148 Ibid. 149 See Commissioner for human rights, positions on the rights of minor migrants in an irregular situation. CommDH/Position Paper (2010)6, Strasbourg 25, June 2010, p. 1. 150 FRA, Detention of third-country nationals in return procedures, Thematic Report, September 2010, p. 86. 151 Ibid., p. 85.

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