The COVID-19 pandemic has amplified calls to end the detention of migrant children, as cases surge among children held in crowded conditions; yet immigration detention's threats to children's fundamental rights did not begin with the current public health crisis.
Unlike nearly three-quarters of high-income countries, however, the U.S. has no laws specifically limiting the detention of accompanied migrant and asylum-seeking children, according to a new study by the UCLA Fielding School of Public Health's WORLD Policy Analysis Center (WORLD). Moreover, the U.S. offers minimal legal protection for unaccompanied minors, and for children who are detained, the U.S. has no legal guarantees of access to adequate healthcare or education.
"The U.S. lags behind when it comes to protecting the most fundamental rights of migrant children," said Dr. Jody Heymann, a UCLA distinguished professor of public health, public policy, and medicine who serves as director of WORLD. "The child detention crisis did not begin or resolve with a single administration, and these longstanding gaps in the law have left countless children vulnerable to grave health risks and human rights violations. Adopting legal protections that provide for the types of effective alternatives to detention modeled elsewhere is critical to bringing the U.S. in line with its peers and ensuring children can no longer be detained or denied access to health and education simply because of their migration status."
Heymann is lead author of a study - "Preventing Immigration Detention of Children: a Comparative Study of Laws in 150 Countries" - published in the July edition of the peer-reviewed International Journal of Human Rights; it is currently available electronically. Her team systematically coded legal restrictions on detention of child migrants in the 150 most populous United Nations-member countries, as well literature on the cost/benefits of varying approaches to keeping such children safe and under responsible oversight.
Overall, the research team found that while the U.S. falls behind other high-income nations, gaps persist globally: looking across low-, middle-, and high-income countries, less than a quarter legally protect unaccompanied asylum-seekers from detention and only 11% do so for accompanied minor migrants.
"International treaties are clear that detaining children based on citizenship is a violation of human rights law," said Aleta Sprague, a senior legal analyst at WORLD. "The U.N. Convention on the Rights of the Child--signed by the U.S. and ratified by every other country globally--guarantees all children's rights to health, education, liberty, and family unity, and national legislation prohibiting child detention plays a critical role in realizing these commitments."
Researchers have consistently found that the detention of migrant and asylum-seeking children is commonly associated with anxiety, depression, and posttraumatic stress disorder (PTSD), among other conditions; all of these can have both mental and physical tolls on children's life expectancy.
"The lack of adequate legal protections for migrant children's access to health and education is a global issue," said Amy Raub, a research analyst at WORLD. "While detention on its own has grave implications for health, conditions of detention routinely exacerbate these health risks while threatening migrant children's other fundamental rights."
Among countries that permit detention in at least some circumstances, only a minority address basic rights such as separation from adult strangers, family unity, access to education, and access to health care. The U.S. is not among the 34% of high-income countries that guarantee access to education or the 44% of high-income countries that guarantee access to health care for detained accompanied minor migrants.
These outcomes are avoidable: effective and human rights-respecting alternatives to detention (ATDs) exist, and widespread evidence from both government and non-government organizations (NGOs) supports their adoption, researchers said.
For example, in Germany, Canada, and the U.S. (in pilots), ATDs that provided case management and community-based living have demonstrated 95%-98% compliance including with immigration interviews and court appearances. There are also financial savings - a short-lived social services-based ATD in the U.S., the Family Case Management Program, cost just $38.47 per participant per day compared to $318.79 per detainee, while reporting a 99% compliance rate.
"Not only can ATDs eliminate detention's grave health risks to children and their parents, but they can also dramatically lower government costs," Heymann said. "This is good public policy in terms of effectiveness and cost efficiency ... and it is also simple human decency."
Methods: To assess the quality of legislative protections for migrant and asylum-seeking children from detention, researchers created quantitatively comparable data on legal provisions across the 150 most populous U.N. member states. Primary sources for national-level laws, regulations, ministerial decisions, and executive decrees pertaining to asylum-seekers, refugees, and immigration were the United Nations High Commissioner for Refugees' (UNHCR) RefWorld catalog and ILO NATLEX legislative database. The team captured legislative provisions that were in effect as of July 31, 2018.