Author
Detention of unaccompanied minors until 2023 and of all minors since February 2024, is prohibited by law, without consideration of their status as asylum seekers. Other vulnerabilities can be reported to OFPRA which can decide to reclassify the procedure leading to an end to detention, or to the judicial judge (JLD) who can end the detention if it is not suitable.
Detention of unaccompanied children
In theory, unaccompanied children cannot be returned and therefore cannot be detained as a consequence. A person declaring themselves to be an unaccompanied minor must first be referred to child protection services for an assessment of their age: placement in detention is therefore only possible when a person is considered an adult.
Nevertheless, it is important to stress that in 2022, the six NGOs working in administrative detention centres met 129 detained persons who declared themselves to be children (77% were released by the judge).[1] These were young persons whose age had been disputed by the authorities and had been considered as adults, as a result of a medical examination for instance.
Moreover, unaccompanied children are often maintained in waiting zones in inadequate conditions. The Ombudsman urged in 2017 for a better consideration of their interests, in particular by: consolidating training of agents working in waiting zones; informing children about their situation and rights; providing them more space to speak and to be heard; establishing separate spaces for children in the waiting zone; and informing the Prosecutor (Procureur de la République) of all unaccompanied children in these locations.[2] Moreover, the legal representation of unaccompanied minors in waiting zone is not always efficient in practice.[3] For more information on whether children can be held in these locations, see Border procedure.
Overseas France: In Mayotte, practices are regularly observed of linking minors with adults who are not their parents in order to make their detention legal.[4] In 2020, the Ombudsman expressed concerns about these practices which, according to the author of this report, persist to date.[5]
Detention of families with children
There has been a steady increase in detained families with children from 2013 to 2019. In 2020, the Ombudsman reported that the widespread use of immigration detention of children with families, and instances of keeping the child in pre-removal detention alone while the parents are not held (particularly in Mayotte), remained problematic issues.[6]
The legislation is the same on this aspect in mainland France and in overseas but in practice, detention of families with children is mostly used in Mayotte.
In 2022, 94 children were detained on the mainland (57 families) compared to 76 in 2021, 122 in 2020 and 279 in 2019.[7] Between 2012[8] and 2022,[9] France has been condemned 9 times by the ECtHR for detaining children in situation not compatible with article 3 of the ECHR (length of detention too long and/or very young children and/or unsuitable place of detention).
Overseas France: Almost all the children detained with their family in France are in Mayotte. In 2022, 2,905 children with families have been detained, compared to 3,135 in 2021.[10]
Detention of victims of trafficking
Detention places are not meant to guarantee protection for victims of trafficking and the police officers hearing third-country nationals in these centres mainly focus on their administrative status. Potential asylum-seeking victims of trafficking do not feel safe and confident to submit an asylum claim, or to express their fear and their situation. They encounter difficulties to trust police officers unable to protect them against their traffickers.
[1] ASSFAM-groupe SOS Solidarités, Forum réfugiés-Cosi, France terre d’asile, La Cimade, 2023, available in French at: https://bit.ly/43C9ZkG.
[2] Ombudsman, Decision No 2017-144, 26 June 2017, available in French at: http://bit.ly/2Dko1v7.
[3] ANAFE, Les administrateurs ad hoc en zone d’attente Un système au service de la violation des droits des enfants, March 2022, available in French at: https://bit.ly/3m7MK0m
[4] Administrative court of Mayotte, 27 June 2019, n°1901417; ECtHR 25 June 2020, Moustahi c.France, § 62.
[5] Défenseur des droits, ‘Rapport au Comité des droits de l’enfant’, 10 July 2020, available in French at: https://bit.ly/3TST6yE.
[6] Défenseur des droits, Rapport au Comité des droits de l’enfant, 10 July 2020, available in French at: https://bit.ly/3TST6yE.
[7] ASSFAM-groupe SOS Solidarités, Forum réfugiés-Cosi, France terre d’asile, La Cimade, 2023, available in French at: https://bit.ly/43C9ZkG.
[8] ECtHR, Popov v. France, 19 January 2012, No. 39472/07.
[9] ECtHR, N.B. and others v. France, 31 March 2022, No. 49775/20.
[10] ASSFAM-groupe SOS Solidarités, Forum réfugiés-Cosi, France terre d’asile, La Cimade, 2023, available in French at: https://bit.ly/43C9ZkG.