Towards a Complete Prohibition on the Immigration Detention of Children

Abstract

The legal position on the immigration detention of children is unclear: is it permissible, subject to the ultima ratio (last resort) principle, or is it prohibited outright? International opinion is divided,with different human rights bodies favouring one or the other position. In November 2017, the Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families issued a Joint General Comment in which they stated forthrightly that the immigration detention of children is prohibited and that the ultima ratio principle does not apply to the immigration context. This article situates the Joint General Comment in the broader context, interrogates its conceptual foundations and explores the extent to which it is likely to settle the debate. The key finding is that the position adopted in the Joint General Comment is correct but founded on a faulty premise and a misplaced emphasis. A more theoretically solid foundation for the prohibition on the immigration detention of children is advanced based on a teleological interpretation of the right of the child to liberty in theConvention on theRights of theChild,with a particular focus on the concept of arbitrariness.