Preventing immigration detention of children: a comparative study of laws in 150 countries

Abstract

The COVID-19 pandemic has shined a spotlight on the fundamental incompatibility of immigration detention with health. Yet immigration detention's threats to human rights did not begin with COVID-19. International treaties are clear that detaining children based on citizenship is a violation of human rights law. However, for international treaties and agreements to be fulfilled, most individual countries must enact domestic laws and policies to implement their commitments. In this study, we examine how many countries have laws to limit the detention of children. To assess the legislative protections for migrant and refugee children from detention, we created quantitatively comparable data on legal provisions across the 150 most populous UN member states. Our primary sources consisted of national-level laws, regulations, ministerial decisions, and executive decrees pertaining to asylum-seekers, refugees, and immigration. Globally, less than a quarter of countries legally protect unaccompanied asylum-seekers from detention and only 11% do so for accompanied minor migrants. Among countries that permit detention in at least some circumstances, only a minority address basic rights such as separation from adult strangers, family unity, access to education, and access to health care. Yet effective and human rights-respecting alternatives to detention exist; the evidence on these is provided.