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detention, children live and sleep with adults, without any special accommodation made for
their young age and without access to education. In others, families are separated in
different sections of the detention facility according to age and gender. The detention of
children, even for short periods, can have severe negative psychological effects. It has been
made clear by the Committee on the Rights of the Child that immigration detention is never
ever in the best interest of the child and that families of migrants should not be separated.
Hence, unaccompanied minors and families with children should always benefit from
alternatives to detention.
45.
Alternatives to detention are being explored. For example, legal reforms in Italy
have reduced immigration detention from 18 to 3 months and, in Greece, the Government
has announced a policy change to reduce detention times and release significant numbers of
detainees. A number of countries have moved towards more open reception facilities,
particularly for vulnerable migrants such as children and families. Despite these welcome
changes, prolonged immigration detention, and the associated negative consequences on the
human rights of migrants, continues in many member States.
Access to justice
46.
The Special Rapporteur notes a promising trend in relation to access to justice, as
national and regional bodies appear willing to support migrants in fighting for their rights.
47.
However, systematic barriers to the right to access justice are in place in many
European Union member States. Significant resource constraints are making member States
unwilling to invest in services that facilitate access to justice for migrants, such as legal aid
and translation and interpretation services. Migrants’ fear of detection and/or deportation if
they assert their right to access justice is also a key barrier. Additionally, inconsistencies in
access to justice persist, depending upon the rights at stake, the type and nationality of the
migrants and the jurisdiction. Finally, a lack of specific rules on courts’ duties to apply
sanctions and/or compensation for violations of migrants’ human rights is another
important barrier.
48.
Concerns about access to justice have been expressed in a number of rulings of the
European courts. Decisions of the European Court of Human Rights in Louled Massoud v.
Malta (2010) and Suso Musa v. Malta (2013) held that the way in which both applicants
were treated violated articles 5 (1) and (4) on the basis that not all the detention had been
legal and proceedings to determine its legality had not been adequately implemented. In
June 2014, The European Court of Justice made a significant ruling in the case of Bashir
Mohamed Ali Mahdi, emphasizing that, under European Union law, a lack of identity
papers should not be used to justify extending immigration detention and that migrants
should have access to justice to challenge such detention.
Fingerprinting and freedom of movement under the Dublin system
49.
Severe restrictions on the movement of asylum seekers under the Dublin system,
which are in sharp contrast to the mobility provided to European Union citizens through the
freedom of movement framework. Under the Dublin regime, asylum seekers are required to
have their claim assessed in the country deemed responsible for their entry into European
Union common territory, which is most often the first country of entry. Once fingerprints
have been collected, they are entered into the Eurodac database, which is shared among
member States. If migrants whose details are stored in this database apply for protection in
other member States, they will usually be returned to the country through which they
entered the European Union.
50.
The Dublin regulations have not been accompanied with significant standardization
of asylum procedures and criteria, therefore creating incentives for migrants seeking to
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