A REGIONAL TOOLKIT FOR PRACTITIONERS 1 25 arrived to a country illegally from a spouse who was in the country legally “may give rise to issues under Articles 17 and 23 of the Covenant,” and the young age of the children and the traumatic experiences of mother and the children while in detention, brought Australia into breach of Article 9 ICCPR.107 In its 2010 report, the Working Group on Arbitrary Detention mentioned that given the existence of alternatives to detention, the detention of a minor – particularly of an unaccompanied minor – is unacceptable and incompatible with Article 37(b) CRC.108 According to the UN Rules for the Protection of Juveniles Deprived of their Liberty, detention should be “limited to exceptional circumstances,”109 and subject to certain procedural guarantees, which include access to free legal aid and communications with legal advisors and family members.110 The 2014 UNHCR Handbook on Protection of Stateless Persons emphasises that children should, as a rule, not be detained under any circumstances.111 Furthermore, in relation to families, the Handbook states that even though the 1954 Convention does not contain any provisions on family unity, “States parties are nevertheless encouraged to facilitate the reunion of those with recognised statelessness status in their territory with their spouses and dependents.”112 Victims of human trafficking OHCHR, in its Recommended Principles and Guidelines on Human Rights and Human Trafficking recommends under principle 2(6) that trafficking victims should under no circumstances be ever held in detention.113 This principle is reinforced throughout the Palermo Protocol as well. However, international law does allow for the removal of victims of trafficking, as long as this does not make them vulnerable to being re-trafficked or harmed in any other way. Indeed, state parties to the Palermo Protocol are obligated to “facilitate and accept, with due regard for the safety of that person, the return of that person without undue or unreasonable delay.”114 Thus, it is possible for victims of trafficking to be subject to removal proceedings, in which case, alternatives to detention must be utilised. Asylum seekers It is a fundamental principle of refugee law that asylum seekers should not be penalised with “immigration or criminal offences relating to the seeking of asylum, or being arbitrarily detained purely on the basis of seeking asylum.”115 UNHCR’s Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum-Seekers, under Guideline 2 state that asylum seekers should not be detained for seeking asylum. Guideline 3 provides for detention of asylum seekers only under exceptional grounds: “as long as this is clearly prescribed by a national law which is in conformity with general norms and principles of international human rights law.” Guideline 7 deals with the detention of vulnerable groups and advocates for alternatives to “precede any order to detain asylum-seekers falling within the following vulnerable categories: Unaccompanied elderly persons. Torture or trauma victims. Persons with a mental or physical disability.” Guideline 9 addresses the detention of stateless persons in the context of asylum seekers. It states that statelessness should not result in indefinite detention, and statelessness should not be a bar to release from detention.116 Victims of torture or cruel, inhuman or degrading treatment or punishment The Practical Manual issued by Association for the Prevention of Torture (APT), International Detention Coalition (IDC) and UNHCR on monitoring immigration detention states that any monitoring mechanism needs to be “aware that asylum seeker and migrant detainees may have been subjected to various forms of ill-treatment before their departure from their home country and/or before detention, during arrest or transfer.” This makes them vulnerable to further victimisation, and requires “special care and attention from the authorities but also from monitors in the course of their interaction with them.”117 Re-victimisation – such as further torture while in detention – and secondary victimisation – such as being aggressively interrogated about their previous torture – of these vulnerable individuals should be avoided at all costs. Council of Europe Children and families Article 8 ECHR protects the right to private and family life. In Al-Nashif v Bulgaria, the ECtHR stated that the “removal of a person from a country where close members of his family are living may amount to an infringement of the right to respect for family life”118 The Court found that deportation will violate the ECHR if said deportation “does not meet the requirements of paragraph 2 of Article 8” (which provides a list of exceptions).119 In Kanagaratnam and Others v Belgium, the ECtHR found that Belgium violated Article 3 ECHR, since it detained alien minors in a closed detention centre; the Court found that the family was detained for almost four months in a centre that the Court had on a previous occasion already deemed inappropriate for detaining children. The Court emphasised the vulnerability of the detained children, who had been traumatised prior to their arrival in Belgium due to the war in their country of origin; had increased upon arrival in Belgium, since they were arrested and detained shortly after arrival.120 Victims of human trafficking Article 10(1) of the Council of Europe Convention on Action against Trafficking in Human Beings provides that states should train the competent authorities in preventing and combating human trafficking, and identifying victims. It also requires states to ensure that relevant authorities collaborate among themselves and with “relevant support organisations so that victims can be identified in a procedure duly taking into account the special situation of women and child victims and, in appropriate cases, issued with residence permits under the conditions provided for in Article 14 of the present Convention.” Article 16(4) requires the state of which the individual is a national or resident to facilitate