Prolonged detention of a child in an immigration facility

Facts

The authors of the communication are Imran Ali and Bakhtaware Ali, nationals of Afghanistan. In 2012, the Norwegian authorities rejected their asylum application. In 2014, after a failed attempt to repatriate them to Afghanistan, the Oslo District Court ordered that the authors and their 2-year-old son be detained in an immigration facility, since there was a real possibility that they might abscond. Their detention was subsequently renewed multiple times, for a total of 76 days. The authors submit that the immigration facility was badly equipped to accommodate families with small children and that the prolonged detention caused the family distress and physiological suffering, with a particularly heavy toll on the child. Therefore, they claim that their detention was in breach of articles 7 (prohibition of torture and cruel, inhuman or degrading treatment or punishment), 9 (arbitrary detention), and 17(1) (right to privacy). They further claim a breach of their son’s rights under article 24 (rights of the child).

Admissibility

The Committee notes that the authors did not appeal all the successive court decisions that confirmed their detention. Moreover, it observes that they did not raise the substance of their claims under articles 7 and 17(1) before the domestic courts. Therefore, such claims are inadmissible. By contrast, the claims under articles 9 and 24 are admissible with regard to the first part of the authors’ detention, which they had challenged before the domestic courts.

Merits

The Committee recalls that every detention of migrants should take place in appropriate, sanitary, non-punitive facilities, and not in prison. It concludes that, since the authors have not been able to show that their treatment in detention did not relate to the purpose for which they were detained, Norway did not violate article 9. By contrast, the Committee finds that, since the conditions of detention in the immigration facility were unsuitable for the authors’ son and the Norwegian authorities failed to adequately consider possible alternatives to the detention, the State party violated article 24.The State party is obligated, inter alia, to provide the authors’ son with adequate compensation for the violations of his rights. It should also prevent the recurrence of such violations in the future.

Implementation

Deadline: 14 January 2023

By: Giacomo Bruno