Los agentes reguladores y la estructura de intermediación

4.4.3.1.

Legal prohibition to detain children

In three Member States (Italy, Hungary, and Slovenia), detention pending deportation of minors is prohibited by law. In Hungary by virtue of the third country nationals Act, detention pending deportation cannot be imposed against underage nationals of a third country, whether they are victims of child trafficking or not. In Italy as general rule, the Italian legal system does not allow the deportation of foreign children below the age of 18,278 _{unless the minor constitutes a danger for public safety or State security, in which}

case he/she may be deported for this special reason.279 _{In Slovenia ‘residence under}

stricter police supervision (i.e. confinement of free movement to the premises of the Centre in accordance with the Centre's house rules) for an unaccompanied alien minor cannot be ordered (due to his/her status as a minor).280_’

it is not known have many of these applications were granted. In the years 2005 and 2006 seven, respectively thirty-four applications were made, out of which five, respectively twenty- seven were granted. For the years 2003, 2004 and 2007 no statistics are available. Sixth report of the National Rapporteur on Trafficking in Human Beings (NRM), The Hague, 2008, p.15, currently available in Dutch only at www.bnrm.nl.

277 _{In 2001, 22 unaccompanied minors were granted asylum from 600 applicants; in 2002, 93}

from 288; in 2003, 38 from 271; in 2004, 58 from 128; in 2005, 56 from 131; in 2006 30 from 131; and in 2007, 32 from 91. The total number therefore of applicants was 1,942, with 321 of these being successful.

278 _{Article 19, par. 2, of Italy/ Decreto legislativo n. 286/1998 (25.7.1998) available at}

http://www.giustizia.it/cassazione/leggi/dlgs286_98.html (02.07.2008).

279 _{Article 13, par. 1, of the same Italy/ Decreto legislativo n. 286/1998 (25.7.1998).} 280 _{Slovenia/Aliens Act 107/06 (17. 10. 2006), Art. 60/4.}

4.4.3.2.

Neither provision nor prohibition to detain children

In three other Member States (Ireland, Malta and Poland), the national law does not explicitly prohibit nor permit the detention of children pending their deportation. In Ireland ‘there is currently no law allowing or prohibiting the detention of separated children seeking asylum… Separated children are not routinely detained in Ireland.281_{’ In Malta}

‘there is no provision of law providing for the detention of children who are victims of trafficking, but such children will be put under a care order and consequently are placed within children’s homes.’ Polish law does not provide for a procedure for the administrative detention of a minor.282

4.4.3.3.

No legal prohibition to detain children

In the vast majority of EU Member States the detention of children pending their deportation is as such not prohibited by law. However it is often explicitly considered to be a measure that may only be applied as a ‘last resort’ (e.g. in Germany, Estonia, Cyprus, the Netherlands, Austria, Sweden and the United Kingdom). In the United Kingdom this principle explicitly also applies to the detention of parents with dependent children. In Finland the basic principle is that a child who is believed to be a victim of trafficking is not detained under any circumstances.283

4.4.3.3.1.

Special safeguards for detained children

Special safeguards for detained children may lie in an age-limit (for example in the Czech republic only 15-18 years old may be detained), or a limited duration of detention. Those reports that mention a maximum duration of the detention pending deportation, show that the legislation within the EU differs widely: while in Sweden an alien child may be detained for a maximum of 72 hours and if there are exceptional grounds, for a further 72 hours, in Germany this maximum is set at six weeks, in the Czech Republic at 90 days, in Bulgaria at two months, in Slovakia at 180 days284_{, compared to a 6 months}

maximum in Romania.

281 _{Dr. Nanilie Mooten, Making Separated Children Visible (Irish Refugee Council, 2006), at 33.} 282 _{The Polish report refers to Article 88 of the Act on Granting Protection to Foreigners within}

the Territory of the Republic of Poland.

283 _{Ihmiskaupan vastainen tarkennettu toimintasuunnitelma, adopted by Government on 25 June}

2008, pp. 10-11.

284 _{The authors of the Slovak national report point out that ‘foreigners can be detained for a}

maximum period of 180 days for the purpose of a) administrative deportation of the foreigner, b) execution of his/her transport or c) his/her return in case of illegal entering into the Slovak Republic. There are no other limits concerning detention of children except of the condition mentioned in the Study: A child without legitimate guardian cannot be detained. There is no age limit for detention of children accompanied by his/her legitimate guardian; such a child should be in detention together with his/her family. (See Report on Slovakia, paras. 76-80).’

Special conditions for the detention of children may also provide special safeguards for detained children. For example, in many countries children are in principle placed in different institutions to adults. In Denmark children over 15 years of age who are waiting for deportation can be placed in the same detention with adults, but – as the Danish national report underlines – this is very seldom used.285 _{Furthermore, under}

Luxembourg’s asylum law, children appear to be subject to the same administrative detention/detention pending deportation procedures as adults.

In most national laws it is provided that children should not be separated from their parents, siblings, adult relatives and/or legal representatives (Estonia, Latvia, Lithuania, the Netherlands, Austria286_{, Slovakia, Sweden and the United Kingdom).}

Unaccompanied minors are often accommodated (detained) in specific institutions. In Lithuania unaccompanied minors are detained in a Refugee Reception centre. In Latvia this group of minor aliens is accommodated in the relevant State Border Guard structural unit, while in the Netherlands unaccompanied minor aliens may be detained in judicial juvenile institutions. In Sweden a child who does not have a custodian in Sweden may only be detained if there are exceptional grounds. In Slovakia a child without a legitimate guardian cannot be detained at all.287

In Denmark, children under the age of 15 who do not have a legal residence can be placed in a secure institution for children.288 _{In Cyprus pending deportation children are}

detained in a care institution. In France detained minors spend their time in specific centres or in closed educational centres. The Swedish Detention Unit in the city of Märsta has access to administrators who specialise in trafficked children if so needed. The report of the UK points out that the United Kingdom made a reservation to its ratification of the UN Convention on the Rights of the Child (UNCRC). This provides that ‘The United Kingdom reserves the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under [United Kingdom] law to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time’.289 _{In January 2008 the Home Office announced a review of the UK position with a}

view to deciding whether its reservation to the UNCRC could be withdrawn.290

285 _{Telephone conversation with department manager and personal and security consultant from}

Ellebæk Prison, Niels Etlard on 29.07.2008.

286 _{Sec. 79 para. 3 Aliens Police Law. In Austria in 2006, 185 children between the age of 14 and}

18 years were held in pre-deportation detention; the proportion of unaccompanied minors thereof is not known. Anfragebeantwortung 748/AB XXIII. GP (26.06.2007) of the MoI, answer in response to questions 1 and 2.

287 _{Article 62, Slovakia/zákon 48/2002 (13.12.2001).}

288 _{Telephone conversation on 04.07.2008 with Gitte Nielsen, Director at Center Gribskov (see}

para 165 for information on Center Gribskov).

289 _{See http://www2.ohchr.org/english/bodies/ratification/11.htm#reservations (04.07.2008).} 290 _{See Home Office Press Release (2008) Home Secretary Moves to Ratify the Council Of}

The Greek report refers to a recent report of the Greek Children's Ombudsman, stating that the places of detention of children visited are not suitable to address their special needs291_.

The French report makes mention of the fact that the situation in certain waiting zones (in particular at Paris Charles de Gaulle airport) seems to be in violation of France’s international commitments. Waiting zones in airports are not considered, under French law, as being part of French territory. As a consequence, minors who remain there are not protected against deportation. In October 2007 the UN Committee on the Rights of the Child expressed its grave concern about the situation of unaccompanied children in the waiting areas of French airports.

4.4.3.4.

No information on detention pending deportation

The national reports of Belgium and Portugal do not contain any information on detention pending deportation.