It is well-known and the subject of much criticism that children seeking asylum in many EU Member States are detained, a situation that is facilitated by the detention provisions of key instruments of the Common European Asylum System. Sometimes the detention is said to be justified on the grounds that it is protective detention. But generally, detention of children is regarded as being inimical to the protection and care of children. For this reason, the Convention on the Rights of the Child has developed stringent standards for the detention of minors to ensure that they are protected from detention and, if detained, that they are protected in detention. As negotiations close on the instruments that will make up Phase Two of the Common European Asylum System, this article explores whether the existing and future instruments safeguard the right of the child to liberty.
Commission evaluation of the RCD, supra note 3; Report from the Commission to the European Parliament and the Council on the Application of Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, COM (2010) 465 final. Hereinafter, ‘Commission evaluation of the APD’.
UNHCR (1999), supra note 9, p. 10.
W. Schabas and H. Sax (2006), A Commentary on the United Nations Convention on the Rights of the Child, Article 37, Prohibition of Torture, Death Penalty, Life Imprisonment and Deprivation of Liberty, Leiden/Boston: Martinus Nijhoff Publishers, p. 89.
Schabas and Sax (2006), supra note 38.
Commission evaluation of the RCD, supra note 3.
Commission evaluation of the RCD, supra note 3, para. 3.4.1, p. 7.
Commission evaluation of the RCD, supra note 3, para. 3.5.2, p. 9.
Commission evaluation of the RCD, supra note 3, para. 3.4.4, p. 8.