HFHR’s study on immigration detention of families for UNHCR
The Helsinki Foundation for Human Rights has published the results of a study commissioned by the Office of the United Nations High Commissioner for Refugees (UNHCR), covering the period 2016-2017.
The study concerned the placement of families with children in guarded centres for foreigners for the purposes of securing international protection proceedings (related to the granting of refugee status or subsidiary protection). According to Polish law, detention as a severe and oppressive measure should be used only as a last resort and for the shortest possible period of time. Priority should be given to non-custodial measures, such as the obligation to periodically appear before the Border Guard authorities or the requirement to reside at a specific location. Furthermore, when considering whether to place a family with children in immigration detention, courts should always be guided by the best interests of the children concerned. In accordance with the Convention on the Rights of the Child, all decisions taken in relation to children should aim to safeguard their best interests.
During the study, HFHR lawyers examined 96 court cases concerning the ordered or extended detention of families with children in guarded centres for foreigners, as well as 84 proceedings conducted by the Border Guard with a view to applying measures alternative to detention. The study covered the cases files of the relevant proceedings conducted between 1 May 2014 and 31 July 2016 by the District Courts in Biała Podlaska, Bielsko-Biała, Kętrzyn, Słubice and Warsaw, as well as by the Border Guard offices in Warsaw, Terespol and Świecko.
The findings of the study showed that when deciding on the detention of families with children, the courts rarely referred to the child’s situation. In the vast majority of the reviewed cases, the best interests of the child were not examined or properly assessed, contrary to the obligation stemming from Article 3 of the Convention on the Rights of the Child and the provisions of the Foreigners Act. Moreover, in none of the cases examined did the court decide to apply an alternative measure to detention or order immigration detention for a period shorter than the maximum specified in the law. Equally worrying is the fact that none of the examined Border Guard’s decisions to apply non-custodial measures refer directly to the principle of the best interests of the child. And although the best interests of the child may have been a factor in the immigration authorities’ decision to apply alternative measures rather than to request a detention order from a court, such considerations were not reflected in records in any of the analysed cases.
Click here to read about the findings of the study.