La vivienda en el Impuesto de Sucesiones y Donaciones.

Article 37 of the UNCRC guarantees that no child shall be deprived of his or her liberty unlawfully or arbitrarily. Where deprivation does occur, children must be treated with humanity and in accordance with their needs and age. They should be provided with legal and other assistance and have the possibility of challenging the legality of their detention before a court. The CRC Committee has firmly stated that children must never be detained for reasons related to their parents’ migration status and has recommended that states immediately cease the detention of migrant children, if applicable. Any kind of such detention should be forbidden by law and such prohibition fully implemented in practice.162

The CRC Committee has also emphasised that unaccompanied or separated chil- dren must never be deprived of their liberty.Detention cannot be justified solely on the basis of the child being unaccompanied or separated, or on their migratory

or residence status, or lack thereof.163 _{The detention of any child on account of their}

own or their parents’ migration status always constitutes a child-rights violation and contravenes the principle of the best interests of the child. The possibility of detaining children as a measure of last resort, which may apply in other contexts such as juvenile justice, is therefore not applicable in immigration proceedings as it would conflict with the best interests of the child and the right to development.164

Article 6 of the EU Charter of Fundamental Rights also recognises the right to liberty and EU law provides that a person cannot be detained for the mere fact of having applied for asylum or for being subject to removal. According to EU law, children, whether accompanied by their families or not, may be detained only as a measure of last resort and only after it has been established that other less coercive measures cannot be applied effectively; if applied, detention must be for the shortest period of time and all efforts must be made to release the detained children and place them in suitable accommodation.165 _{EU law requires member states to provide for}

alternatives to detention in case of removal.166

According to the European Committee for the Prevention of Torture (CPT), immi- gration detention should be exceptional, proportionate and, by consequence, an individual measure necessary in order to prevent unlawful immigration.167 _Detention

can take various forms, such as house arrest, confinement to an airport transit zone168

or to a border area; placement in a ship;169 _{and a stop and search by the police.}170

The Court has held that deprivation of liberty even for a very short duration may qualify as detention.171

Article 5(1)(f) of the European Convention on Human Rights allows detention for the purpose of preventing unauthorised entry or with a view to deportation. To be compatible with the Convention, immigration detention must be lawful and free from arbitrariness; must comply with national laws and be carried out in good faith, it must be closely connected to its purpose, the place and conditions of detention should be appropriate and the length of the detention should be reasonable.172

The European Convention on Human Rights does not explicitly prohibit the detention of refugee and migrant children. However, the case law of the Court provides detailed analysis of violations resulting from the detention of migrant children, accompanied

163. CRC Committee, General Comment 6, paragraph 61. 164. CRC Committee, General Comment 23, paragraph 5.

165. See for example Articles 8 and 11 (2), EU Reception Conditions Directive; Article 15, EU Return Directive.

166. EU Return Directive, Recital 16; CJEU 28 April 2011, El Dridi, C-61/11, paragraph 39; FRA (2015), Alternatives to detention for asylum seekers and people who are in return procedures.

167. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Factsheet on immigration detention, CPT/Inf(2017)3.

168. Amuur v. France, 25 June 1996, paragraphs 43-49, Reports of Judgments and Decisions 1996-III. 169. Khlaifia and Others v. Italy [GC], (2016), paragraphs 65-71.

170. Foka v. Turkey, No. 28940/95, paragraphs 76-79, 24 June 2008. 171. Nolan and K. v. Russia, No. 2512/04, paragraphs 94-96, 12 February 2009. 172. Saadi v. the United Kingdom [GC], No. 13229/03, ECHR 2008, paragraphs 64 and 74.

and unaccompanied.173 _{The Court has found violations concerning the lawfulness of}

the children’s detention, safeguards concerning the judicial review of detention, the material conditions of detention, as well as the impact of detention on family life. In respect of the conditions of detention, the Court has found a violation of Article 3 of the Convention in particular on account of a combination of three factors: the child’s young age, the length of the detention and unsuitability of the premises for the accommodation of children.174 _{Even short delays of two days have resulted in}

violations in a number of cases.175

Any decision to detail should provide an assessment of the best interests of the child, which also requires keeping the family together.176 _{When, exceptionally, children}

are held with their parents in administrative detention, the deprivation of liberty should be for the shortest possible period of time, and after having established that the placement of the family with children in administrative detention is a measure of last resort for which no alternative measures are available. All efforts should be made to release the detained children and place them in accommodation suitable for children.

Unlike in the case of adults, the immigration detention of children must be nec- essary in order to comply with Article 5(1)(f) of the Convention, which means that states are obliged to consider less invasive alternatives for accommodation.177 _In

the case of Mohamad v. Greece, the applicant who was only two months away from his 18th birthday was kept in an adult detention facility until he reached the age of 18. The Court found a violation of Article 5(1)(f) of the Convention as the authorities “had not provided any explanation why, after the medical exam took place, they had upheld the applicant’s detention … instead of searching for alternative solutions of accommodation for children ... The government did not provide any evidence to support even the slightest communication to this effect with the relevant organisations.”178

The Council of Europe Twenty guidelines on forced return states that detention, with a view to ensuring that a removal, can be applied when “compliance with the removal order cannot be ensured as effectively by resorting to non-custodial measures such as supervision systems, the requirement to report regularly to the authorities, bail or other guarantee systems”.179

173. See the regularly updated Factsheet Accompanied migrant minors in detention, www.echr.coe.int/Documents/ FS_Accompanied_migrant_minors_detention_ENG.pdf and Unaccompanied migrant minors in detention, www.echr.coe.int/Documents/ FS_Unaccompanied_migrant_minors_detention_ENG.pdf.

174. A.B. and Others v. France, No. 11593/12, 12 July 2016, paragraph 109.

175. For example, Rahimi v. Greece (2011), S.F. and Others v. Bulgaria, No. 8138/16, 7 December 2017, paragraph 79.

176. Popov v. France (2012), paragraphs 141 and 147.

177. Popov v. France (2012), paragraph 91; A.B. and Others v. France, (2016), paragraphs 120-123. 178. Mohamad v. Greece, No. 70586/11, 11 December 2014, paragraph 84.

179. Council of Europe Committee of Ministers (2005), Twenty guidelines on forced return, guideline 6(1).

In 2014, the Parliamentary Assembly of the Council of Europe called upon member states to “acknowledge that it is never in the best interests of a child to be detained on the basis of their or their parent’s immigration status”. The Assembly recommended that states “introduce legislation prohibiting the detention for immigration reasons” and create alternatives to detention in order to meet the best interests of the child and to make sure that they can remain with their family or guardians in non-custodial contexts.180 _{Moreover, in the End Immigration Detention of Children campaign the}

Assembly sought to combat detention of immigrant children in order to meet the best interests of the child.181