Site navigation

Change font size: SmallerLargerReload

Human Rights navigation


Click here to return to the Submission Index

Submission to the National Inquiry into Children in Immigration Detention from

Save the Children

Executive Summary

1. Save the Children

2. Children in Australia

3. Failure to incorporate international instruments into Australian law

4. Australia's non-refoulement obligations

5. Unlawful entry

6. Temporary Protection Visas

7. The best interests of the Child (Article 3)

8. The right to family life (Article 5)

9. Deprivation of Liberty (Article 37)

10. Unaccompanied children (Article 20)

11. Comparisons with overseas practice

12. Meeting our international obligations

1. Save the Children
Save the Children is the world's largest independent child development organisation, with 32 member countries and programs in over 100 countries. Save the Children works for:

As well as its programs in Australia and the region, Save the Children Australia (SCA) has played a vital role in the advocacy of children's rights in Australia. Such work contributes to the development of public policy which acknowledges and protects children's rights in Australia.

2. Children in Australia
Although other international obligations are also relevant to this issues facing children seeking asylum, this paper will focus on The Convention on the Rights of the Child (CROC) because of Save the Children's intrinsic connection to the development and monitoring of Convention.

3. Failure to incorporate international instruments into Australian law
In the absence of an integrated system within Australia to protect children's rights, SCA sees the failure to incorporate international treaties into Australian law and regulations as a serious shortcoming in protecting the rights of children in immigration detention.

4. Australia's non-refoulement obligations
SCA is concerned that Australia may be in breach of its obligations not to return asylum seekers to a country where they would be at risk through its policy of screening asylum seekers upon arrival and of attempting to turn back vessels which seek to enter Australian territory.

5. Unlawful entry
SCA believes that Australia is in breach of non-discrimination principles in Article 2 of the Convention on the grounds of its different treatment of child asylum seekers arriving without visas and children who arrive on a visa and subsequently seek asylum, as a result of its policy of detention of unauthorised arrivals.

SCA is concerned about the treatment of rejected child asylum seekers and other children in immigration detention and the extent to which their rights under Articles 2 and 3 of the Convention in particular (non-discrimination and the best interests of the child) are respected.

6. Temporary Protection Visas
SCA believes that the issuing of Temporary Protection Visas is a breach of CROC Articles 2, 3, 6, 7, 9, 10, 12, 22, and 26 and should be abolished in favour of Protection Visas.

7. The best interests of the Child (Article 3)
SCA believes that the detention of child asylum seekers, either with their families, or unaccompanied, is not in the "best interests" of the child, which should be the 'prime consideration in the treatment of children. We assert that current "legislative, administrative and other measures" (Article 4) do not adequately take the "best interests of the child" into account.

8. The right to family life (Article 5)
SCA believes that the Convention on the Rights of the Child, when read with other relevant treaties such as the Refugee Convention, indicates that alternatives to detention should be sought which allow children to remain with their parents, with detention as a last resort. As this is not the case at present, SCA believes that Australia is in breach of Article 5 of the Convention.

9 Deprivation of Liberty (Article 37)
SCA believes that the current policy represents a systemic breach of Article 37 of the CROC. Detention of child asylum seekers is currently not a measure of last resort, it is not for the shortest appropriate time, alternatives are not given adequate consideration, it is not necessary or proportionate, and the right to challenge detention is merely formal.

Placing children in detention upon unlawful entry into Australia, as authorised in the Border Protection Bill involves, Australia further breaching its obligations under the Convention.

10. Unaccompanied children (Article 20)
SCA is concerned that the treatment afforded to unaccompanied children upon arrival, in the processing of their claims for asylum and their ongoing detention as a result of an unsuccessful claim for asylum constitute a breach of Article 20 of the Convention, which states that an unaccompanied child seeking asylum must be afforded 'special protection and assistance' by the government.

SCA believes that this situation is unsustainable. Guardianship for unaccompanied children in immigration detention should be the responsibility of an independent, properly resourced authority, whether State or Federal, which can advocate for the best interests of the child. This would bring Australia into line with current overseas practice in comparable countries.

11. Comparisons with overseas practice
SCA believes that the current Australian law and regulations to detain asylum seekers, to discriminate between asylum seekers based on their unauthorised arrival, and to return unlawful entrants to countries of origin, are out of step with international norms in comparable countries such as Denmark, Canada and the UK.

12. Meeting our international obligations
SCA believes that there is no way in which Australia is able to meet its international obligations under the CROC and other relevant international instruments under the current policy framework.

SCA supports the adoption of alternatives to detention, as proposed by other organisations including the Refugee Council of Australia.


1. Save the Children

Save the Children is the world's largest independent child development organisation, with 32 member countries and programs in over 100. Save the Children works for:

In addition to its development programs, Save the Children plays a critical advocacy role around the world. It lobbies governments and the international community and members of civil society, highlighting failures in public policy and private practice which represent violations of children's rights. For agencies such as Save the Children, whose purpose is deeply rooted in children's rights, this role is crucial. Save the Children has an obligation to act as custodians of children's rights, sharing the responsibility to fight for their recognition and defence.

Save the Children Australia (SCA) has played a vital role in the advocacy of children's rights in Australia. Recent work includes Children's Rights: Equal Rights? [1], which examined discrimination and racism in Australia, and Children's Rights Reality or Rhetoric? [2], which reviewed progress towards meeting Australia's obligations set out under the Convention on the Rights of the Child (CROC). Both documents were part of wider international reports on these issues. Such work contributes to the development of public policy which acknowledges and protects children's rights in Australia.

The Human Rights and Equal Opportunities Commission (HREOC) Inquiry into children in immigration detention provides SCA with a valuable opportunity to examine the maintenance and protection of children's rights in Australia with respect to this vulnerable population. SCA welcomes this opportunity to make this contribution.


2. Children's Rights

Although other international obligations (outlined below) are also relevant to this issues facing children seeking asylum, this paper will focus on The Convention on the Rights of the Child (CROC) because of Save the Children's intrinsic connection to the development and monitoring of Convention.

The idea of a formal expression of children's rights which can be used to harness political and public commitment to improving the lives of children is fundamental to Save the Children's work. Save the Children was instrumental in drafting the Convention. The involvement of civil society not only improved the content of the Convention but also generated an unprecedented level of commitment to making it work.

All but two countries have ratified the CROC, making it the most accepted international treaty. The CROC incorporates the whole spectrum of human rights - civil, political, economic, social and cultural - and sets out the specific ways in which these should be made available to children. These rights include:

At first glance, the Convention is notable for the 41 individual articles that contain a great deal of detail on a variety of specific children's rights. But the CROC does have a broader vision. Children are seen as full human beings, rights-holders who can play an active part in the enjoyment of their rights. They are not - as they have often been presented in the past - mere dependents, the property of their parents. They are not to be seen merely as victims, workers, young offenders, pupils or consumers, but as complex and fully rounded human beings.

Society has obligation towards the children within it. The standards set out are those that any decent society concerned for the well-being and happiness of its children might want to attain. Those standards correspond to fundamental values, such as a belief in human dignity, tolerance, equality, peace and freedom. There is no place for discrimination against children, nor for their exploitation or abuse. No child should live in poverty. A child's development should be nurtured and encouraged through education, health and other services to give it the best possible start in life. In times of war and civil unrest, children should be given special protection.

The Convention is available at http://www.unicef.org/crc/fulltext.html

The Relationship between the CROC and the Refugee Convention
The CROC effectively incorporates the rights set out in the Refugee Convention. Article 22 of the CROC provides that State Parties must ensure child asylum seekers "receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth … in other international human rights or humanitarian instruments to which the said States are Parties" [3] . As Australia is a State Party to the Refugee Convention, it is obliged to ensure the rights outlined in its provisions are afforded to child asylum seekers under both the Refugee Convention and the CROC by virtue of article 22.


3. Failure to incorporate international instruments into Australian law

SCA sees the failure to incorporate international treaties into Australian law and regulations as a serious shortcoming in the application of rights to children in immigration detention.

Since the end of the Second World War, the international community has joined forces to develop a set of treaties that guide the actions of States in relation to the protection of their citizens and others in their jurisdiction. These treaties include:

Australia was one of the countries behind the drafting of these treaties. It has also acceded to each. Such accession leads to an expectation that Australia will incorporate the treaty obligations in some form of domestic legislation or ensure their reflection in a bill of rights. SCA believes that the fact that this has not yet been done is a major weakness in Australia's refugee policy.

Australia, as a key regional player, should have an important role to play promoting and protecting refugee rights in the Asia-Pacific region, including promoting accession to the 1951 Convention and the other human rights treaties. It is to be noted that many countries in our region are not signatories to the Refugee Convention, including those which have recently taken in and processed asylum seekers diverted en route to Australia. The absence of a clearly defined human rights framework in this country, in our opinion, impedes Australia's ability to perform this important regional function.

4. Australia's non-refoulement obligations

SCA is concerned that Australia is in breach of its obligations not to return asylum seekers to a country where they would be at risk through its policy of screening asylum seekers upon arrival and of attempting to turn back vessels which seek to enter Australian territory.

Australia has undertaken not to send back people to a country where they would be at risk of serious human rights violations (refoulement). These risks are defined by the Refugee Convention (Article 33) and in Articles 1 and 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) to which Australia is a party.

Referring to the Refugee Convention, Australian law defines refugees as people who

The Refugee Convention prohibits "[the expulsion] or return [of] a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, nationality, membership of a particular social group or political opinion" (Article 33.1).

Article 3.1 of the Convention against Torture prohibits the return of people to another country where they might face torture or ill treatment:

"No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."

The convention specifically allows for a wide interpretation of the term torture to include acts of cruel, inhuman or degrading treatment or punishment (Article 1.2, Article16).

In its February 1998 report, the Australian National Audit Office warns that

"[t]here is a risk ... that the screening process will be perceived as a de facto refugee determination system which lacks the important features of the actual refugee determination system such as the provision of assistance to the applicant and the availability of administrative and judicial review ".[4]

Concerns have been raised [5] that there are risks inherent to the current screening process, that unrecognised refugees may be returned without having been given a fair opportunity to make a protection claim. SCA shares these concerns.

5. Unlawful Entry

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 2, Convention on the Rights of the Child.

SCA believes that Australia is in breach of article 2 of the Convention on the grounds of its different treatment of child asylum seekers arriving without visas and children who arrive on a visa and subsequently seek asylum, as a result of its policy of detention of unauthorised arrivals.

SCA is concerned about the treatment of rejected child asylum seekers and other children in immigration detention and the extent to which their rights under Articles 2 and 3 of the Convention in particular are respected.

The non-discrimination principle outlined in article 2 of the Convention prohibits discrimination on the grounds of status, including immigration status. Every child in Australia is entitled to all of the rights under the Convention without discrimination.

The current system allows for up to 12,000 people per year to be granted asylum. This includes those who apply from overseas (off-shore applicants) and those who apply once arrived in Australian territory (on-shore applicants). Those who arrive in Australia unlawfully (ie, without authority to do so, such as a visa) are normally placed in detention [6]. The Government assumes that people will claim asylum within 45 days of arrival in Australia and certain rights to financial and legal assistance are not afforded to those who lodge claims after this period. Although not all children who arrive and claim asylum are placed in detention, this is the normal outcome of the current regime.

Many asylum-seekers are able to obtain a passport and to enter Australia on proper travel documents. Many others are forced to flee their homes at very short notice. They cannot always be expected to risk travelling to a capital city to obtain passports from the authorities and foreign embassy visas. Often, they go to extreme lengths in order to seek protection in another country and to prevent the authorities from their home country from identifying them.

Under the screening process introduced by the Australian authorities, any undocumented asylum-seekers are interviewed on arrival. During this interview, asylum-seekers are asked to identify themselves, present any identifying documents and to explain how they arrived and by what route. They are asked why they came to Australia and whether there is anything they wish to advise the authorities about their countries of origin. It is important to note that they are not asked specifically whether they wish to apply for refugee status, seek protection from human rights violations or whether they wish to see a lawyer. The summary of this interview is relayed orally to a senior DIMIA official who will assess whether the answers, in that official's view, are sufficient to engage Australia's protection obligations.

If the senior DIMIA official accepts that there is a desire to seek asylum, the person concerned is immediately detained. In effect, he or she is being detained for not having proper documents. If, however, the senior DIMIA official deems, on the basis of the information relayed orally, that the person does not engage Australia's protection obligations, that person is liable to immediate removal from the country.

Concerns have also been raised that that mandatory detention, particularly continuing detention beyond a reasonable time, may have the effect of impeding the proper presentation of asylum claims and deter asylum-seekers from seeking protection in Australia [7]. This situation could see genuine refugees not claiming asylum from lack of knowledge of the legal process in this country and lack of access to UNHCR officials or legal assistance

After status determination
Detained children whose asylum claims have been rejected or children who did not claim asylum but who are detained on visa grounds are still covered by the Convention's provisions while they remain in Australia. The Committee on the Rights of the Child has clarified that articles 2 and 3 of the Convention require that these children must enjoy all the rights enshrined in the Convention regardless of current status:


The Committee is concerned about the application of the law and policy concerning children seeking asylum, including unaccompanied children. It is particularly concerned that unaccompanied minors who have had their asylum request rejected, but who can remain in the country until they are 18 years old, may be deprived of an identity and denied the full enjoyment of their rights, including health care and education. Such a situation, in the view of the Committee, raises concern as to its compatibility with articles 2 and 3 of the Convention .[8]


6. Temporary Protection Visas

SCA believes that the issuing of Temporary Protection Visas is a breach of CROC Articles 2, 3, 6, 7, 9, 10, 12, 22, and 26. and should be abolished in favour of Protection Visas.

The discrimination issue arises in relation to the different status that may be granted to child asylum seekers depending on their mode of arrival in Australia. Child asylum seekers who arrive without authorisation and are detained may only receive a three-year Temporary Protection Permit when granted asylum, whereas those who arrive with authorisation and are subsequently recognised as a refugee receive permanent residency. The different legal status deriving from these refugee visas translates into different rights and benefits for children.


7. The best interests of the child (article 3)

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

Article 3(1), Convention on the Rights of the Child.

SCA believes that the detention of child asylum seekers, either with their families, or unaccompanied, is not in the "best interests" of the child. We assert that current "legislative, administrative and other measures" (article 4) do not adequately take the "best interests of the child" into account.

The requirement in article 3 of the Convention that the best interests of the child be given "primary consideration" is a fundamental principle reflected in the various provisions of the Convention.

Upholding the "best interests" principle requires examination of government policy formulation and individual decision-making regarding children. Article 3(1) does not require the best interests of the child to be the sole consideration in all decision-making, but it does require the child's interests to be the subject of active consideration, with evidence that children's interests have been taken into account as a primary consideration.

The principle of the "best interests of the child" in article 3(1) is fundamental to understanding Australia's obligation to implement the rights in the Convention for all children. The "best interests" principle should be used by all decision-makers, including service providers in detention facilities, and be written into legislation in a way in which it can be invoked before the courts.

8. The right to family life (article 5)

States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

Article 5, Convention on the Rights of the Child.

The Convention n the Rights of the child, when read with other relevant treaties, indicates that alternatives to detention should be sought which allow children to remain with their parents, with detention as a last resort. As this is not the case at present, SCA believes that Australia is in breach of Article 5 of the Convention.

Under the Convention, all children are entitled to grow up in a healthy family environment, with parents or legal guardians of child asylum seekers having the primary responsibilities for the upbringing of their children. Australia is also obliged to ensure that unaccompanied children receive appropriate alternative care and guardianship arrangements.

Article 37(b) of the Convention provides that children should only be detained as a last resort and for the shortest appropriate period of time. The provisions of article 37(b), read with the child's right to family life, would indicate that alternatives to the detention of children which involve the child remaining with her or his parents out of detention should be considered as a first resort by Australia, with detention as a last resort.

Article 37 is discussed more fully later in this paper.

9. Deprivation of liberty

Article 37 focusses specifically on deprivation of liberty and is worth more detailed assessment here. It states that
"States Parties shall ensure that:

...
"(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
...
"(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."

The provisions of article 37 are reiterated in relevant UNHCR guidelines on refugee children.
"In accordance with the general principle stated at Guideline 2 and the UNHCR Guidelines on Refugee Children, minors who are asylum seekers should not be detained…"
UNHCR, Revised Guidelines on applicable Criteria and Standards Relating to the Detention of Asylum-Seekers, (UNHCR Guidelines on Detention) Introduction, Guideline 6 (1999) (emphasis retained).

Unfortunately refugee children are sometimes detained or threatened with detention because of their own, or their parents', illegal entry into a country of asylum. Because detention can be very harmful to refugee children, it must be 'used as a measure of last resort and for the shortest appropriate period of time',
UNHCR Refugee Children: Guidelines on Protection and Care (UNHCR Guidelines on Protection and Care), (1994) chapter 7.

SCA believes that the current policy represents a systemic breach of Article 37 of the CROC. Detention of child asylum seekers is currently not a measure of last resort, it is not for the shortest appropriate time, alternatives are not given adequate consideration, it is not necessary or proportionate, and the right to challenge detention is merely formal.

An exercise of the powers under section 245(9) of clause 8 of the Border Protection Bill involves Australia further breaching its obligations under article 37(b) of CROC.

9.1 Detention as a measure of last resort and for the shortest appropriate period of time (article 37(b))
Any decision to detain a child asylum seeker must be made subject to the provision of the Convention that the detention be in conformity with the law, a measure of last resort and for the shortest appropriate period of time. The provisions of article 37(b) are repeated throughout relevant UN standards on children. For example, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) states that detention "should be used as a last resort" and "be limited to exceptional cases. [9]" The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985) reiterate that any detention should be brief [10] and state this should only occur where the child has committed "a serious act involving violence". [11]

9.2 Alternatives to detention
The Committee on the Rights of the Child has emphasised the importance of States finding alternatives to the detention of children [12] For example, in relation to child asylum seekers whose claims were rejected it has stated:


[T]he Committee is seriously concerned about legislation which permits the detention of asylum-seeking children pending deportation. The Committee urges the State party [Austria] to reconsider the practice of detaining asylum-seeking children, and that such children be treated in accordance with the best interests of the child ... [13]

The UNHCR also recommends alternatives to detention for children and their families [14].

Australian law mandates the detention of unauthorised child and adult asylum seekers [15]. The requirements that detention be the " last resort and for the shortest appropriate period of time" (article 37(b)), is not reflected in Australian law. It is widely accepted that it is not clear from international law exactly what "the shortest appropriate period of time" for detention. However, non-custodial measures should be investigated before custodial measures. For these reasons, SCA believes that Australia is in breach of Article 37(b).

Under bridging visa requirements, child asylum seekers cannot be released from immigration detention unless a State or Territory child welfare authority certifies that a release from detention is in the child's best interests and the Minister is satisfied that appropriate arrangements have been made for the care and welfare of the child outside of detention [16]. As it is usually in a child's best interests to remain with her or his family, and there is no provision for release of families from detention, children are rarely granted bridging visas. SCA therefore believes that current alternatives to detention, such as bridging visas, do not comply with Article 37(b).

9.3 Necessity
The Human Rights Committee has found that detention of asylum seekers may be arbitrary if it is not necessary and proportionate [17].

The UNHCR has stated in ExCom Conclusion 44 [18] [that, because of the hardship it causes, detention of asylum seekers should be avoided. If necessary, UNHCR states that detention may only be resorted to in four cases:

The UNHCR also states that the right to liberty is a fundamental right and that therefore 'the detention of asylum-seekers is in the view of UNHCR inherently undesirable' [20]. Guidelines on Detention assert that there should be a presumption against detention and that the only permissible exceptions to this presumption are the four grounds provided in ExCom Conclusion 44. Detention of asylum seekers for any other purpose, 'for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law' [21]

In relation to children, the Guidelines on Detention clearly stipulate that child asylum seekers should not be detained [22]. If detention is considered, those Guidelines provide that all alternatives to detention should first be explored. If a child is detained, detention should be for the shortest period of time and in accordance with the above four exceptions in ExCom Conclusion 44.

Detention of child asylum seekers will be arbitrary where it is not necessary in the circumstances of a particular case. Detention may not be considered necessary outside of the four exceptions contained in ExCom Conclusion 44 or where there is an alternative to detention. SCA therefore believes that the detention of child asylum seekers is in breach of article 37(b) of the Convention.

9.4 Proportionality
The Commission has found previously that Australia's detention policy does not meet the minimum standards in ExCom 44 or the UNHCR Detention Guidelines [23] and that it would be considered arbitrary and unreasonable under article 9(1) ICCPR and article 37(b) of the Convention .[24]

SCA therefore urges the Government to expand the current alternatives to detention to include all families with children and all unaccompanied children, except in the circumstances permitted under ExCom Conclusion 44, in accordance with Australia's international obligations.

9.5 Length of detention
The permissible length of detention has not been definitively outlined by the Human Rights Committee. However, the Committee has found violations in a number of cases. The Human Rights Committee's comments in these cases [25] raise questions about the validity of all but a very brief period of detention in most cases.

While clear figures on the length of detention for individual children are not available, it is clear that the current policy allows children to be detained for months, or even years, and that this has occurred in recent times. SCA believes that this is in breach of Australia's international obligations under Article 37.

9.6 Right to challenge detention
Judicial oversight of all forms of detention is a fundamental guarantee of liberty and freedom from arbitrariness. Without judicial oversight, administrative detention may be indeterminate, being decided on grounds of administrative or other convenience.

Article 37(d) of the Convention mirrors article 9(4) of the ICCPR which provides:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

The jurisprudence of the Human Rights Committee assists in determining the scope of article 37(d). While both the Convention and ICCPR articles apply to all children held in detention, including child asylum seekers, article 37(d) of the Convention also provides the child with the right to "prompt access to legal and other appropriate assistance [26]" before a court or similar authority. Where a child does not have access to legal and other assistance to challenge her or his detention, there will be a violation of the Convention. [27]

Judicial review of detention in Australia remains very limited. As child asylum seekers may be lawfully detained under the Migration Act 1958, any legal challenge to their detention will be "merely formal" and unable to succeed. At present, there is no court in Australia in which child asylum seekers can take proceedings to determine whether their detention is arbitrary and therefore in contravention of the Convention and/or the ICCPR. Accordingly, SCA believes that Australia is in breach of article 37(d) of the Convention and article 9(4) of the ICCPR.

9.7 Processing of unlawful child entrants into Australia
The provisions under Clause 8 of the Border Protection Bill also raise issues under the Article 37(b) of the CROC. Section 245(9) appears to contemplate that any child aboard a detained boat or aircraft may be taken into detention without expressly requiring consideration of alternatives to detention for those persons; or separate consideration of the human rights of those persons.

10. Unaccompanied children -Article 20

An unaccompanied child seeking asylum must be afforded 'special protection and assistance' by the government (Article 20).

SCA is concerned that the treatment afforded to unaccompanied children upon arrival, in the processing of their claims for asylum and their ongoing detention as a result of an unsuccessful claim for asylum constitute a breach of Article 20 of the Convention.

SCA believes that this situation is unsustainable. Guardianship for unaccompanied children in immigration detention should be the responsibility of an independent, properly resourced authority, whether State or Federal, which can advocate for the best interests of the child. This would bring Australia into line with current overseas practice.

10.1 Assessment
By contrast with child asylum seekers who arrive or are reunited with their parents, unaccompanied children do not have the support of their family in making an asylum claim and thus need special assistance.

Unaccompanied children are defined as those children who are separated from their parents and are not being cared for by an adult who by law or custom has responsibility for the child [28]. Where adults are caring for the child, or relatives of the child reside in the country of asylum, the child should ordinarily stay with those carers for the duration of her or his asylum claim [29].

Otherwise, special procedures, including specially trained persons, should identify unaccompanied children on arrival at a port of entry or where they have been residing in the country for some time [30]. Care should be taken in confirming whether the child is an asylum seeker or not. Whereas the child's parents or guardian can often confirm that a child is indeed an asylum seeker, it may be necessary to presume that an unaccompanied child who arrives in Australia is an asylum seeker. As UNHCR notes:

Children often do not leave their country of origin on their own initiative. They are generally sent out by their parents or principal caregivers. 'If there is reason to believe that the parents wish their child to be outside the country of origin on grounds of their own well-founded fear of persecution, the child him/ herself may be presumed to have such a fear' .[31]

10.2 Guardianship of unaccompanied children

"The guardian or adviser should have the necessary expertise in the field of childcaring so as to ensure that the interests of the child are safeguarded, and that the child's legal, social, medical and psychological needs are appropriately covered during the refugee status determination procedures and until a durable solution for the child has been identified and implemented. To this end, the guardian or adviser would act as a link between the child and existing specialist agencies/ individuals who would provide the continuum of care required by the child."

UNHCR Guidelines on Unaccompanied Children. [32]

The UNHCR recommends that an independent and formally accredited organisation appoint a guardian or adviser as soon as the unaccompanied child is identified [33]. The guardian/adviser would be charged with ensuring that the best interests of the child are respected throughout the status determination procedure and in all care and welfare decisions concerning the child.

The newly-appointed guardian should ensure the child's well being by advocating and liaising with appropriate agencies, such as in the fields of welfare, health and education. Where the child is detained, the guardian must guarantee the child's well being and where necessary, challenge the child's detention before a court or similar authority (article 37(d)) [34]. Insofar as article 20 of the Convention provides that children deprived of their family environment are "entitled to special protection and assistance" and must be provided with alternative care, preferably family based where there are no family members to care for them, the child's guardian could be required to advocate for and ensure such protection and assistance are received.

Currently, unaccompanied children in immigration detention are formally wards of the Minister for Immigration, through DIMIA. This situation creates possible and perceived conflicts of interest between DIMIA's role in detaining and processing unaccompanied child asylum seekers and its role in acting 'in the best interests of the child'.

In Denmark, by contrast, dedicated asylum centres have been established for unaccompanied children as this vulnerable group requires special care. These centres have far more staff and better resources than ordinary centres to provide these children with enhanced educational and leisure opportunities. [35]

11. Comparisons with overseas practice

SCA believes that the current Australian law and regulations to detain asylum seekers, to discriminate between asylum seekers based on their unauthorised arrival, and to return unlawful entrants to countries of origin are out of step with international norms.

Displacement is a global issue, and the numbers of people seeking asylum in developed countries round the world has grown dramatically over recent years. Australia is not immune from the global problem. The US Committee for Refugees latest annual figures are for 2000. They show:

Canada
At the end of 2000, Canada hosted some 54,400 refugees and asylum seekers in need of protection. These included individuals in 30,177 pending asylum cases, 13,990 who received refugee status during the year, and 10,236 refugees resettled from abroad during the year.

Canada received a record number of asylum seekers, 36,534, in 2000. During the year, 34,253 claims were referred to Canada's Immigration and Refugee Board (IRB). Canadian authorities decided 24,124 refugee claims, recognising applicants in 13,990 cases as refugees, a 57 percent approval rate (in 1999, the approval rate was 58 percent). Another 4,685 cases were either abandoned or otherwise concluded. The Canadian government reports the approval rate at 49 percent of all applications referred during the year to the IRB, up slightly from 46.3 percent in 1998. [36]

In 2000, the leading source countries for refugee claims in Canada were Pakistan (3,111), Sri Lanka (2,906), and Hungary (2,304). China, Argentina, Mexico, and Colombia were the next largest source countries, with 1,000 to 2,000 applications for each country.

Denmark
At the end of 2000, Denmark hosted about 10,300 refugees and asylum seekers in need of protection. These included 1,332 persons granted refugee status under the UN Refugee Convention, 2,530 issued de facto refugee status, 31 granted permission to stay on humanitarian grounds, 379 granted residence permits for other "exceptional reasons," some 345 with temporary protection, 464 resettled "quota" refugees, and about 5,200 asylum applicants awaiting a decision on pending claims. [37]

UK
At the end of 2000, refugees and asylum seekers in about 87,800 cases were in need of protection in the United Kingdom. These included 66,195 cases awaiting an initial decision, 11,365 granted humanitarian status based on their asylum claims, and 10,186 cases granted asylum during the year.

Some 76,040 persons (excluding dependents) applied for asylum in 2000, the highest number of annual applications ever in the United Kingdom and more than in any other Western European country during the year. The 66,195 applications pending an initial decision at year's end represent a 36 percent decrease from the 1999 backlog of 102,870.

The largest number of asylum seekers who filed applications in the United Kingdom in 2000 arrived from Iraq (7,080), Sri Lanka (6,040), Yugoslavia (5,695), Afghanistan (5,230), Iran (5,170), Somalia (4,795), and the former Soviet Union (4,140). [38]

11.1 Detention of asylum seekers

Canada
Although some asylum seekers are held in detention, asylum seekers are generally not detained. Canada provides asylum seekers with a variety of social services, including income support and health services. Asylum seekers are also authorized to work while their claims are pending. [39]

Denmark
Since 1995 Danish law has permitted the authorities to detain asylum seekers whose applications are, or are expected to be, placed in the manifestly unfounded category. For these people the Denmark Immigration Service (DIS) may exercise an accelerated procedure, and they may be denied the opportunity to appeal. During 2000, the DIS considered 780 applications to be manifestly unfounded [40].

UK
In April 2000, sweeping changes in the support and housing of asylum seekers in the United Kingdom came into effect, under the Immigration and Asylum Act (1999).

A new "processing centre" in Oakington, Cambridge opened in March 2000 to process people quickly who had asylum claims the government deemed to be "manifestly unfounded." Asylum applicants in the "semi-secure" centre receive decisions on their applications within seven days of arriving. The centre processed about 400 applicants per week during 2000. [41]

11.2 On-shore versus off-shore claimants
Australia's policy stands in contrast to those outlined here. None of Canada, the UK or Denmark distiguishes as clearly as Australia between asylum seekers who apply from overseas (off-shore) and those who claim asylum once arrived in the country. None of these countries has a policy of routine detention for unlawful arrivals who claim asylum.

11.3 Return of asylum seekers upon arrival
Under Danish law, the authorities may refuse to admit asylum seekers who arrive at the borders without valid travel documents if they come from a "safe third country." Denmark does not maintain an official list of safe third countries. In practice, the authorities consider the United States, Canada, Norway, Switzerland, Poland, and to some extent, Hungary as such [42].

For the UK, Asylum applicants who have travelled through a European Union (EU) country, Canada, the United States, Switzerland, or Norway may be refused entry and removed from the United Kingdom without having their claims considered at all [43].

The Government has argued that the recently introduced provisions to expel asylum seekers from Australia are in line with those of other countries. It is clear that practice in Denmark and the UK is to return asylum seekers who have passed through another country that has undertaken to take refugees, while Australia is removing people upon arrival in Australian territory to countries which are not party to resettlement programs.


12. How can Australia best meet its obligations under the CROC in respect to children seeking asylum?

SCA believes that there is no way in which Australia is able to meet its international obligations under the CROC and other relevant international instruments under the current policy framework.

SCA supports the adoption of alternatives to detention, as proposed by other organisations including the Refugee Council of Australia.

The Government has argued that:
1. detention of asylum seekers is not mandatory - unauthorised entrants are detained;
2. families should not be separated;
3. it is meeting its obligations towards children in detention by the provision of health, education, cultural and other services.
These points deserve consideration.

1. While it is important to acknowledge that not all on-shore child applicants for asylum are in detention, it is clear that detention is the norm for this population. Also, this fact that not all of these children are in detention does not offer protection of rights to those that are, and it is these cases that clearly breach the CROC.

2. It is usually in the best interests of a child to remain in a family environment with familiar caregivers. If Australia is to meet its obligation to the CROC then any family group containing a child who has applied for asylum should be released from detention. Maintenance of familial relationships does not justify the detention of children. In addition, it has been argued that placing children in situations of familial stress, such as detention, has resulted in the occurrence of physical and psychological illnesses. [44]

3. Other organisations have acknowledged the significant improvements in the treatment of asylum seekers in detention in Australia [45]. SCA also acknowledges this to be true. However, improvements to living conditions of children in detention do not alter their status as detainees, and therefore does not alter the significant and systematic breach of the CROC. Rights conferred under the CROC are not divisable - it is not possible to argue that meeting many, or most, of the Articles in the CROC allows a country to avoid responsibility for the remaining Articles.

12.1 Alternatives to Detention
Other organisations have developed an alternative to detention of asylum seekers. The following model is taken from the Refugee Council of Australia [46]. In brief, the alternative model provides a legislative and regulatory framework for a more flexible detention regime. The model has been endorsed by a range of civil society organisations. More detail on the model can be obtained from http://www.refugeecouncil.org.au/alternative1.htm

Under this model restrictions of the current type on the liberty of Protection Visa applicants should be kept to a minimum, usually to less than 90 days. After the initial period in closed detention, most applicants would pass on to a more liberal regime; one that is most appropriate to the individual's circumstances. Regular review of each applicant's detention status is recommended to ensure the restriction placed on individuals are appropriate for their circumstances. Finally, a review process is recommended to establish an ongoing process leading to a higher level of equity in the case management of each applicant.

The alternative model proposes a three-stage regime. The stages represent a progression ranging from severe restrictions on personal liberty to increasingly liberal provisions.

The three stages of detention are:

Advantages:
The alternative detention model offers a range of advantages by providing:

1. Children's Rights: Equal Rights? Diversity, Difference and Discrimination , (2000), Save the Children, London.
2. Children's Rights Reality or Rhetoric? The UN Convention on the Rights of the Child: The First 10 Years, (2001), Save the Children, London.
3. Article 22(1) of the Convention provides: "States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties."
4. Australian National Audit Office, The Management of Boat People: Performance Audit, tabled 18 February 1998, section 6.38.
5. Amnesty International (Australia), A Continuing Shame: The mandatory detention of asylum seekers, available from http://www.amnesty.org.au/whatshappenning/refugees/index-16.html#2
6. Department of Immigration and multicultural and Indigenous Affairs, Fact Sheet: Immigration Detention, available from http://www.immi.gov.au/illegals/uad/03.htm#10
7. ibid.
8. Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child : Belgium, UN Doc CRC/C/15/Add.38, 20 June 1995, para 9. See also the Committee's comments to Denmark: "The Committee notes that all children who have had their asylum requests rejected but who remain in the country have had their rights to health care and education provided de facto but not de jure. It is the view of the Committee that this situation is not fully compatible with the provisions and principles of articles 2 and 3 of the Convention", Concluding Observations of the Committee on the Rights of the Child : Denmark, UN Doc CRC/C/15/Add.33, 15 Feb 1995, para 14.
9. See too the comments to Finland: "It also encourages the State party to consider measures through which asylum-seeking and refugee children can be granted equal access to the same standard of services, in particular education, irrespective of who they are and where they live." Concluding Observations of the Committee on the Rights of the Child : Finland, UN Doc CRC/C/15/Add.132, 16 Feb 2000, para 52.
10. Rules 1 and 2, United Nations Rules for the Protection of Juveniles Deprived of their Liberty. Rule 2 provides "[d]eprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release".
11. Rule 17(b) of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) provides: "Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum".
12. Rule 17(c), Beijing Rules, provides that "Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response".
13. For example, considering Sweden's Initial Report, the Committee observed: "The Committee also suggests that consideration be given to providing alternatives to the incarceration of children under the Aliens Act and that a public defence counsel be appointed for children in conflict with the law." Committee on the Rights of the Child (CRC), Concluding Observations of the Committee on the Rights of the Child : Sweden, UN Doc CRC/C/15/Add.2, 18 Feb 1993, para 12. In relation to child asylum seekers, the Committee observed to Canada:
"Deprivation of liberty of children, particularly unaccompanied children, for security or other purposes should only be used as a measure of last resort in accordance with article 37 (b) of the Convention". CRC, Concluding Observations of the Committee on the Rights of the Child : Canada, UN Doc CRC/C/15/Add.37, 20 June 1995, para 24.
14. Emphasis retained. CRC, Concluding Observations on the Committee on the Rights of the Child: Austria, UN Doc CRC/C/15/Add.98, 7 May 1999, para 27. See too the Committee on Canada: "the Committee recommends that the Government address the situation of unaccompanied children and children having been refused refugee status and awaiting deportation in the light of the Convention's provisions. Deprivation of liberty of children, particularly unaccompanied children, for security or other purposes should only be used as a measure of last resort in accordance with article 37 (b) of the Convention", CRC, Concluding Observations of the Committee on the Rights of the Child: Canada, UN Doc CRC/C/15/Add.37, 20 July 1995, para 24.
15. "If refugee children are detained in airports, immigration holding centres or prisons, they must not be held under prison-like conditions. Special arrangements must be made for living quarters which are suitable for children and their families. Strong efforts must be made to have them released from detention and placed in other accommodation"; UNHCR Guidelines on Protection and Care, ch 7. See too Guideline 6, UNHCR Guidelines on Detention.
16. All persons, including children, in the migration zone without a valid visa must be kept in immigration detention until granted a visa, removed or deported: s14 and s196(3), Migration Act 1958 (Cth). S196(3) provides that "[t]o avoid doubt… the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation)" is not permitted "unless the non-citizen has been granted a visa."
17. Regulation 2.20, Migration Regulations 1994. See HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals, pp21-22.
18. For example, the Committee has found breaches of Article 9 in circumstances where people have not been released after their prison sentences have been fully served. See, for example, HRC, Weisman and Perdomo v Uruguay, UN Doc UNHRC 8/1977.
19. UNHCR Executive Committee (EXCOM), Conclusion No. 44 (1986) - Detention of Refugees and Asylum-Seekers.
20. UNHCR Executive Committee (EXCOM), Conclusion No. 44 (1986) - Detention of Refugees and Asylum-Seekers at (b).
21. See UNHCR Guidelines on Detention, Introduction, para 1.
22. Guideline 3, UNHCR Guidelines on Detention.
23. Guideline 6, UNHCR Guidelines on Detention.
24. The UNHCR detention guidelines referred to in HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals , p45 are the UNHCR (1985), Guidelines on Detention of Asylum Seekers, which were the previous version of the 1999 UNHCR Guidelines on Detention
25. See HREOC (1998), Those who've come across the seas: Detention of unauthorised arrivals, p53.
26. For example, "The Committee takes note with concern that provisions in article 2, para. 24 (f) of the [Peruvian] Constitution, which permits preventive detention for up to 15 days in cases of terrorism, espionage and illicit drug trafficking, as well as Decree Law 25,475, which authorizes extension of preventive detention in certain cases for up to 15 days, raise serious issues with regard to article 9 of the Covenant." HRC, Concluding Comments on Peru, UN Doc CCPR/C/79/Add. 67, 25 July1996, para 18. Reference should also be made to the judgements of the European Court of Human Rights under article 5 of the ECHR. In Amuur v France (cited above), 20 days detention of Somali asylum seekers was found to breach article 5(1), ECHR.
27. According to the Human Rights Committee "[t]he important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States Parties have in accordance with article 2(3) also to ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the covenant", HRC, General Comment No. 8, para 1.
28. See the case of Berry v Jamaica, of the Human Rights Committee, Communication No. 330/1988, 16 October 1992. The Committee accepted the complainant's allegation "which remains unchallenged, that throughout this period [detention of two and a half months], he had no access to legal representation". In addition to violating Article 9(3) ICCPR, the Committee concluded: "that the author's right under article 9, paragraph 4, was also violated, since he was not, in due time, afforded the opportunity to obtain, on his own initiative, a decision by a court on the lawfulness of his detention"; at para 11.1.
29. See UNHCR Guidelines on Unaccompanied Children, para 3.1. See also article 5 of the Convention which defines family broadly. Unaccompanied children are entitled to "special protection and assistance provided by the State" under article 20(1) of the Convention.
30. See UNHCR Guidelines on Unaccompanied Children, Annex Two.
31. UNHCR Guidelines on Unaccompanied Children, paras 5.1-5.3.
32. UNHCR Guidelines on Unaccompanied Children, para 8.9, citing para 218 of the UNHCR Handbook.
33. UNHCR Guidelines on Unaccompanied Children, para 5.7.
34. UNHCR Guidelines on Unaccompanied Children, para 5.7.
35. UNHCR Guidelines on Unaccompanied Children, paras 6-7.
36. US Committee for Refugees (2001), Country Report Denmark, available at http://refugees.org/world/countryrpt/europe/denmark.htm
37. US Committee for Refugees (2001), Country Report: Canada, available at
38. http://refugees.org/world/countryrpt/amer_carib/canada.htm
39. US Committee for Refugees (2001), Country Report Denmark, available at http://refugees.org/world/countryrpt/europe/denmark.htm
40. US Committee for Refugees (2001), Country Report UK, available at http://refugees.org/world/countryrpt/europe/united_kingdom.htm
41. US Committee for Refugees (2001), Country Report: Canada, op. cit.
42. US Committee for Refugees (2001), Country Report: Denmark, op. cit.
43. US Committee for Refugees (2001), Country Report: UK, op. cit.
44. US Committee for Refugees (2001), Country Report: Denmark, op. cit.
45. US Committee for Refugees (2001), Country Report: UK, op. cit.
46. Amnesty International (Australia) (2001), A Continuing Shame: The mandatory detention of asylum-seekers, available at http://www.amnesty.org.au/whatshappening/refugees/index-16.html#2
47. Amnesty International (Australia), op. cit.
48. Refugee Council of Australia (2000), The Alternative Detention Model, available at http://www.refugeecouncil.org.au/alternative1.htm

Last Updated 9 January 2003.