Administrative detention of migrants

Sendt: 29.06.2017

Adressat: European Committee on Legal Co-operation

I

We refer to the first draft codifying instrument on the conditions of administrative detention of migrants.

It is a priority task for the Norwegian Bar Association to conduct judicial policy work through consultation statements. The Norwegian Bar Association therefore has a number of legislative committees divided by subject areas. Our law committee has lawyers with special knowledge in the relevant field of study and each law committee consists of lawyers with different experience and expertise in the field of expertise. The work in the legislative committees is voluntary and unpaid.

The Norwegian Bar Association sees it as its duty to be an independent consultation body focusing on legal certainty and on the quality of the proposed legislation.

However, in matters concerning lawyers' framework terms, the amendment will also be considered against the interests of the law firm. In these cases it will be stated that we express ourselves as an affected industry organization and not as an independent expert body. The reason we distinguish between these roles is that we want to maintain and further develop the credibility of the Norwegian Bar Association as an independent and unpolitical expert body in the legislative process.

In the present case, The Norwegian Bar Association stands out as an expert body. The matter has been submitted to the committee of asylum and immigration law. The committee consists of Bente Mostad Tjugum (chair), Jan M. Birkeland, Sigrid Broch, Runa Nordahl Hæreid, Zulifqar Munir and Christel Reksten.

II

The Norwegian Bar Association supports a codification of detention rules of migrants based on existing international and regional instruments on human rights standards.

The Norwegian Bar Association supports the first draft of, 18th May 2017.

Additionally, the Bar association suggests that the codifying instrument has a separate chapter, regarding children. Children are generally not supposed to be subject to detention based on being an asylum seeker or a migrant, and therefore the rules should be highlighted.

III

The UN Child Convention art 3 no. 1 says that "the best interest of the child:

" shall be a primary consideration at all decisions or judgements that affects a child. And in according to article 37 letter b of the same convention, no child shall be deprived of his or her liberty unlawfully or arbitrarily, and a detention 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."

In a recent Judgement by the regional Appeal Court in Oslo, Borgarting lagmannsrett, 31st May 2017, the Court concluded that an imprisonment for 20 days of a denied asylum seeker family, consisting of 4 children between 7 and 14 years old, was unlawful, and in breach of UN Child Convention art 37 letter b. The Appeal Court also concluded that other human rights were violated, such as art 5 no. 1 and art 8 of the European Convention on Human Rights. See attached a copy of the Judgement by the Appeal Court, Borgarting lagmannsrett.

The Norwegian Bar Association firmly believes that a codifying instrument must contain the rules of the UN Convention of the Child, in a separate chapter, to ensure that the decisionmakers take into account the rights of the child, in cases that affects children. Children have human rights, through the Convention of the Child, which are more specific than for other vulnerable groups, such as people who are sick or pregnant or for other reasons are vulnerable. Therefore, the Norwegian Bar Association, believes that it is necessary to address these specified rights and considerations of the child, in a chapter in the legal instrument, only concerning children, and not mix it with general considerations with other vulnerable groups. Especially important articles concerning detention are:

  • - Art 3 nr 1, - best interest of the child
  • - Art 12, - the right to be heard
  • - Art 37, letter a, - the prohibition of torture or inhumane or degrading treatment
  • - Art 37, letter b, - detention only as a "measure of last resort" and for the "shortest appropriate period of time".

Sincerely,

Jens Johan Hjort         Merete Smith
president                     secretary general

Enclosed follows recent Judgement by the regional Appeal Court in Oslo, Borgarting lagmannsrett, 31st May 2017: https://lovdata.no/dokument/LBSIV/avgjorelse/lb-2016-8370?q=LB-2016-8370.