Although Reception Standards Directive 2013/33/EU does not outjudge the possibility of detaining a minor in asylum procedures, United Nations Committee on the Rights of the Child – CRC – remains consistent that no child can be detained in migration procedures.
Article 11 (2) of the Directive allows detention of minors as a measure of last resort and after it having been established that other less coercive alternative measures cannot be applied effectively. According to the practice of the EUCJ (see C-808/18) the Directive prohibits automatic detention the transit zones, without any assessment of the individual circumstances of the applicants, without a written decision being issued, and because it may also be ordered in respect of minors. Nevertheless, the detention of minors for the purposes of removal in particular is not excluded by the EU law.
By contrast the CRC Committee’s findings on the detention of minors are a straightforward application of the interpretation it has given to Article 37 CRC in the context of migration: no child can be detained for the purposes of migration (See Joint General Comment No. 4/23, paras. 5-10); General Comment No. 6, para. 61.)
In recent case No. 73/2019 K.K. and R.H. on behalf of A.M.K. and S.K. v. Belgium Belgium had argued that article 37 of CRC, as such “does not prohibit the detention of minors in absolute terms and does not contain any objection to detention for reasons related to migration”, and pointed to the Human Rights Committee’s General Comment 35, which states that the detention of children for immigration control should be a measure of last resort and for the shortest appropriate period of time.
Rejecting these arguments, the CRC Committee reiterated its interpretation that “the possibility of detaining children as a measure of last resort must not be applicable in immigration proceedings” (para. 10.9) and repeated its recommendation that Belgium ends the immigration detention of children (Concluding Observations: Belgium, para. 44(a).
Lithuania ratified the Third Optional protocol to the CRC on a communication procedure on 3 October 2022, allowing individual communications to the Committee.
In accordance with the Article 140-8 of the Law on the status of foreigners in force the detention in Lithuanian foreigners reception centers is automatic.
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