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  • Right to education for non-citizen children (multiple countries)
  • Argentina
  • Belgium
  • Chile
  • Spain
  • France
  • Italy
  • Netherlands
  • Thailand
  • United States of America
  • Uruguay
  • The fundamental right of all children to education, regardless of their legal status, is recognized in Argentina, Belgium, Chile, Italy, Spain, Thailand, the Netherlands and Uruguay. In France, there is a ministerial circular to the same effect.

    Italy guarantees to migrant children the right to education, regardless of their status, on the same terms as Italian children. The 1998 Immigration Act integrates the right to education in national legislation. It provides for the compulsory education of migrant children, the teaching of Italian, and the promotion of the culture and language of the countries of origin of migrant children.

    Chile guarantees access to public education to migrant children and adolescents, regardless of their migration status (Ministry of Education, Ordinary Communication N°07/1008 of 2005).In 2016, a new procedure was established to facilitate the enrolment of irregular migrant children

    The US Supreme Court ruled in the landmark Plyler v. Doe case in 1982, that it was a violation of the Constitution to deny irregular migrant children free compulsory education under the same conditions as citizens and regular migrant children. The legal ruling has been complemented by guidelines, for instance those produced by the National School Boards Association and the National Education Association, regarding legal issues and specific schools. A number of States have fully implemented this ruling to include access to other school-based services, such as free and reduced-price meals and educational assistance for children with learning disabilities.

    In 2005, Thailand’s Ministry of Education instructed school directors to enrol all children, including irregular migrant children, so they could access free basic education.
  • Law
  • Minimum Standards
  • Respect of fundamental rights
  • Undocumented or irregular migrants
  • Children
  • Restrictive migration policy in Argentina
  • Argentina
  • On January 30, 2017, Argentina’s president Maruicio Macri announced an urgent decree (Decreto de Necesidad y Urgencia 70/2017) that modifies the country’s current immigration law, replacing it with a more restrictive migration policy that represents a concerning step backward in terms of international and regional human rights commitments. This change comes as part of more restrictive migration policy and practice observed generally in Argentina, including increased operations to seek out and arrest irregular migrants, along with the creation of a new immigration detention center in 2016, the first in the country. Among other changes, Decree 70/2017 increases maximum time limits for immigration detention from 30 to 60 days and establishes indefinite detention for anyone who legally challenges a removal order. The decree allows for persons to be detained at the beginning of the immigration, even before a removal order is issued, and no longer considers family reunification as criteria for limiting unnecessary detention. The result is that immigration detention in Argentina is no longer the exception, as required by international human rights law. These new regulations also seriously limit access to justice and due process, allowing for a limited three days to challenge a removal order, and only three days more to appeal an initial decision on this order. Additionally, these measures are only available to those who are able to gain access to legal representation.
  • Law
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • All
  • UK regulations assessing individual risk of absconding
  • United Kingdom
  • In response to a decision in the Court of Justice of the European Union (CJEU) relating to a case in Czech Republic, the United Kingdom introduced "The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017". The case relates to an Iraqi male and his two minor children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act. The court held that the Czech legislation contained no objective criteria defining “risk of absconding” as required by Article 2 (n) of the Dublin Regulation. Therefore, the legislation under Article 28 of the Dublin Regulation was not applicable in the Czech Republic, and the decision to detain the applicants was unlawful. The court referred in its reasoning to similar judgments of the German and Austrian highest courts.
  • Law
  • Screening & Assessment
  • Individual case factors
  • Migrants
  • All
  • Ensuring that detention is only used when necessary in Brazil
  • Brazil
  • In Brazil, the presumption of liberty is reflected in the law by the fact that detention is only permissible as an exceptional measure when necessary in order to execute deportation. (Art. 61 and 73 of the Immigration Law). Persons already in the country: Instead of detaining, the first measure of response to an immigration infraction is to issue the migrant a fine and order him/her to leave the country or regularize their status within a certain period of time. This does not apply to persons seeking asylum or those who have the possibility of regularizing their immigration status through one of the country’s existing amnesty programs. The order to leave the country is noted in the migrant's identity document, or in its absence, is included in a statement issued by authorities (Art. 57 and 127 of the Immigration Law). A person is able to leave Brazil without be required to pay the fine. However, they will not be allowed to re-enter legally without paying. The time limit given applies both to payment of the fine and leaving the country. Those who do not leave the country within the allotted time limit, enter into deportation proceedings. Persons who face deportation may be detained for up to 60 days, if deemed necessary in order to execute removal, with possible extension of up to 120 days. However, actual detention rarely occurs in practice unless the migrant has committed a crime (Art. 61 of the Immigration Law)
  • Law
  • Liberty
  • Only permit detention when alternatives cannot be applied
  • Returnees / Deportees
  • All
  • Placement options
  • Egypt
  • Kenya
  • Libya
  • Tanzania
  • United Republic of
  • Zambia
  • Four out of six countries have legislation that permits certain migrants, including refugees and asylum seekers, to reside in the community as an alternative to immigration detention. For example, Zambia’s Immigration Act provides for bail [Section 57) or report orders [Section 14]. Egyptian law allows for directed residence pending deportation, and South African law states that children and pregnant women must be held in appropriate and open shelters. Five out of six countries provided further examples of positive practices. Emergency housing and shelters for vulnerable migrants, asylum seekers and refugees – run by civil society organisations, government agencies, or both in partnership – are in use in Egypt, Kenya, and Zambia. In Kenya, asylum seekers are removed from detention and escorted to refugee camps pending the determination of their claim. In Egypt, Libya and Tanzania, there is evidence of good practice that is not prompted by law. It was reported that asylum seekers arriving in Egypt who are awaiting refugee status determination (RSD) by UNHCR, are not arrested when they approach immigration authorities. However, there is no Egyptian law authorising the residence of migrants and asylum seekers pending RSD. By conducting intake screening that looks not only at the vulnerabilities but also strengths of individuals, some detention centre managers in Libya have created innovative release-to-work programmes whereby migrants are issued ID cards and released under the protection of an employer, whose treatment of the migrants is regularly reviewed. Finally, despite law prohibiting refugees and asylum seekers from traveling more than four kilometres from camps in Tanzania without permits, the Ministry of Home Affairs issues exit permits to refugees who have a credible reason for exiting. Refugees arrested outside camps without permits are usually sentenced to community service rather than imprisonment, fines, and deportation – as was previously the case.
  • Law
  • Placement Options
  • Community with conditions
  • Migrants
  • All
  • Transit
  • Law to prevent detention vulnerable populations from being detained in Turkey
  • Turkey
  • The Law on Foreigners and International Protection, ratified by the Turkish Parliament on 4 April 2014, does not under any circumstances, allow detention of: • UAM IP applicants (they are to be placed “by the Ministry of Family and Social Policies in suitable accommodation facilities, in the care of their adult relatives, or in the care of a foster family, upon taking into account the opinion of the unaccompanied minor” if they are over 16 they can be placed in reception centres); • identified victims of trafficking (the problem is that they are often not identified); international protection status holders; international protection applicants not covered by Art 65 (four criteria specifying when IP applicants can exceptionally be detained); • stateless individuals after their stateless status is determined and documented; • a number of vulnerable groups are exempt from deportation orders, which means they are also protected from detention: Includes: people who are at risk of torture/ill-treatment if expelled; risk in travel due to health, age, pregnancy; cannot receive treatment in country; identified victims of trafficking; & victims of serious psychological, physical or sexual violence, until their treatment is completed. For such persons, humanitarian residence permit is issued and they may be asked to reside at a certain address and carry out reporting at requested forms and periods.
  • Law
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Asylum seekers
  • Refugees
  • Stateless
  • Trafficked
  • Survivor of torture or trauma
  • Unaccompanied and Separated Children
  • Transit
  • France - assessment of asylum seekers for vulnerability factors i order to tailor reception conditions
  • France
  • A foreign national intending to claim asylum has to present him or herself to the Prefecture that is orienting him or her to a pre-reception office … The pre-reception office provides him or her with an asylum application form for the registration of his or her claim at the Prefecture. An appointment with the Prefecture is also arranged. In compliance with the recast Asylum Procedures Directive, this appointment should take place within 3 days after the asylum seeker has presented him or herself to the prereception office ... The registration of the claim is processed at the “single desk” (guichet unique) where the Prefecture and the French Office on Immigration and Integration (Office Français sur l’Immigration et l’Intégration - OFII) both have offices. The aim of the single desk is to register the asylum claim and, on the same day and in the same location, to conduct a vulnerability assessment that allows the OFII to offer tailored material reception conditions. Therefore, upon leaving the single desk, the asylum seeker has been granted an asylum claim certification (attestation de demande d’asile), that specifies if his or her claim has been channelled into a specific procedure, and has been proposed an accommodation place, when available.
  • Law
  • Screening & Assessment
  • Vulnerability
  • Asylum seekers
  • All
  • Law prohibiting the detention of specific vulnerable groups in China
  • China
  • The People’s Republic of China’s (China) Exit and Entry Law, which came into effect on 1 July 2013, aims to limit the use of immigration detention for vulnerable individuals.

    The Exit and Entry Law excludes certain vulnerable migrants from detention including minors under 16 years of age, persons with disabilities, persons with serious illnesses, pregnant women, and those over 70 years of age.

    The Exit and Entry Law also contains provisions allowing refugees and asylum seekers to stay in China after obtaining an identification card from public security authorities.

    Additionally, the July 2012 revisions to the Procedural Provisions for the Handling of Administrative Cases by Public Security Organs also excludes other individuals from detention including: those who voluntarily ask for inspection by entry-exit department, pay fines, and buy tickets to voluntarily return to their home country; those who entered through irregular means and stayed, received no help from family members or embassies; survivors of trafficking; and foreigners married to Chinese nationals, especially those with children born in China.

    Note: section 61 of the Exit-Entry Administrative Law simply prohibits the detention of vulnerable groups for "investigation", but says their "activity scope" may be restricted, i.e. they may not leave the restricted locations without approval of authorities. The period for restricting activity scope is not to exceed 60 days. Unclear if these vulnerable groups can be detained for other reasons other than "investigation"
  • Law
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Migrants
  • Undocumented or irregular migrants
  • Children
  • Elderly Persons
  • Pregnant and nursing mothers
  • Respecting the right to liberty in Argentina
  • Argentina
  • Immigration detention is limited in law and practice to rare instances during deportation procedures. Deportation and detention are both decisions that can only be authorized by judicial order, with detention used only as a final resort after all other remedies are exhausted. Such an order can only be issued in two cases: (i) for a specific period of time as a precautionary measure before a final immigration decision where a risk of non-compliance with a deportation order is proven; and (ii) for a maximum of 15 days to effect deportation where the judge determines that a removal order is final. Before deportation, a person must be given the opportunity to explore all options to regularise their status, within a set deadline. In practice, migrants who have been committed to prison for criminal offences are the only immigration detainees (Article 70, Immigration Law No. 25.871; Article 70, Regulation 616/2010)
  • Law
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • All
  • Treating children as children, first and foremost in Ireland
  • Ireland
  • It is official policy in Ireland not to refuse any minor entry to the Irish State. The policy is based on the premise that the best interests of the child must always take precedence regardless of whether or not a child claims asylum. According to the Immigration Act 2003, the provisions for the arrest and detention of persons refused leave to land shall not apply to persons under 18 years of age if the Immigration Officer believes that the person is a minor. The Refugee Act 1996 further states that in cases where it appears that a minor presenting at the border or within the territory is alone, or in the company of an adult with whom the Immigration Officer is not satisfied has a genuine relationship with the child, the Immigration Officer must contact TUSLA (the Child and Family Agency).
    Thereafter, the provisions in the Child Care Act 1991 apply, meaning that TUSLA assumes responsibility for the child. In practice, Immigration Officers exercise caution with regard to the age of UAMs presenting at the border/ within the territory, giving the benefit of the doubt and working closely with the relevant social work teams in order to ensure that UAMs are not refused entry to the Irish State. A decision to refuse leave to land is not solely taken by an individual Immigration Officer but is checked by a supervisor.
  • Law
  • Liberty
  • Establish a presumption of liberty
  • Migrants
  • Children
  • Reporting and Monitoring Requirements in Egypt
  • Egypt
  • Article 30 of Entry and Residence of Aliens in the Territories of the United Arab Republic and their Departure Therefrom (1960) (Amended by laws Nos.49/1968, 124/1980, 100/1983, 99/1996 and 88/2005) – should a deportation decision be difficult to enforce, the Director of Passport, Immigration and Nationality may order the non-resident in question to reside at a particular place and report to a specified police station according to a specified time frame until deportation occurs. Non-citizens who violate the terms of an order of deportation or banishment, fail to reside at a designated residence, or provide false statements or knowingly submit false documentation to Egyptian authorities can be sentenced with up to two years imprisonment and/or to pay a fine of up to two thousand pounds (Arts. 38, 40).

    (Editor's note: United Arab Republic is Egypt's law).
  • Law
  • Placement Options
  • Community with conditions
  • Migrants
  • All
  • Transit
  • Temporary residence permits for people unable to depart Finland
  • Finland
  • Under Section 51 of the Aliens Act, aliens residing in Finland are issued with a temporary residence permit if they cannot be returned to their home country or country of permanent residence for temporary reasons of health or if they cannot actually be removed from the country. Temporary residence permits pursuant to Section 51 of the Aliens Act are granted for a period of one year at a time. Aliens granted temporary residence permits on such grounds have a restricted right to employment under Section 80, Paragraph 1, Subparagraph 6 of the Aliens Act. Pursuant to Se ction 54, Paragraph 5 of the Aliens Act, aliens who have been issued with a temporary residence permit under Section 51 be cause he or she cannot be removed from the country are issued with a continuous residence permit after a continuous residence of two years in the co untry if the circumstances on the basis of which the alien was issued with the previous fixed-term permit are still valid
  • Law
  • Minimum Standards
  • Formal status and documentation
  • Undocumented or irregular migrants
  • All
  • Alternative to detention provisions in Austria
  • Austria
  • Art. 77 para 1 Aliens Police Act stipulates that individuals shall be provided with an alternative to detention if detention grounds (Art. 76) are present and the purpose of detention can also be achieved by their provision. The following forms of alternatives to detention are provided in Art. 77 para 3 APA: 1. Residing at a particular address determined by the authority; 2. Reporting periodically to the police station; 3. Lodging a financial deposit at the authority. • Administrative High Court, 17 October 2013, 2013/21/0041 - individuals shall be provided an alternative to detention if detention grounds are present but the purpose of detention can be achieved by the alternative. However, if the necessity of detention to secure a procedure or measure terminating residence is not present, no alternatives to detention shall be imposed either. According to the handbook of the Aliens Police Act (as of 1 July 2011), the facts that justify the assumption that the purpose of detention cannot be achieved through alternatives include the existence of a criminal conviction or the misuse of a previous alternative to detention with the aim to abscond.
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Pre-removal risk assessment
  • Canada
  • Although not specifically designed to address the needs of children, asylum seekers whose cases have been rejected and who are expected to depart Canada can apply for protection under the Pre-Removal Risk Assessment process. This process takes into consideration a change in circumstances in asylum seekers’ countries of origin, new information demonstrating that asylum seekers will be at risk of persecution, torture or to cruel, inhuman or unusual treatment or punishment, or the possibility that asylum seekers’ lives may be otherwise endangered should they be compelled to leave Canada. The PRRA is not an appeal against earlier decisions and consideration is given only to new information or evidence. The PRRA decision is usually made on the papers. Only a very small percentage of applicants are granted the right to remain in Canada under the PRRA.
  • Law
  • Screening & Assessment
  • Protection needs
  • Migrants
  • All
  • Reception options for unaccompanied minors in Estonia
  • Estonia
  • Article 35 of the Act on Granting International Protection to Aliens says that an applicant who is an unaccompanied minor shall be placed in the reception centre or a social welfare institution for the duration of the asylum proceedings, and welfare services appropriate to the age of the applicant shall be guaranteed to him or her. An applicant who is an unaccompanied minor may be placed with an adult relative or a social care family, if the host is appropriate for taking care of a minor.
    In placing an applicant who is an unaccompanied minor in the reception centre or social welfare institution, or with an adult relative or a social care family, the rights and interests of the minor shall be the main consideration. Unaccompanied minor sisters and brothers shall not be separated, if possible. The applicant who is an unaccompanied minor may be placed in the initial reception centre until the necessary procedures are conducted.
  • Law
  • Liberty
  • Prohibit the detention of vulnerable individuals
  • Migrants
  • Children
  • Unaccompanied and Separated Children
  • Transit
  • Netherlands - identification of trafficked persons
  • Netherlands
  • In the Netherlands, under the “B9 procedure”, (presumed) victims of trafficking are granted a reflection period of three months “at the slightest indication” that he or she might be a victim of trafficking. The reflection period is meant to allow the (presumed) victim to start recovering and to make an informed decision about cooperation with the authorities. During the reflection period the (presumed) victim has access to safe housing, psychological, medical, material and legal aid. It is the responsibility of the police to inform the victim about the B9 procedure. If, after this period, the victim decides to cooperate in the prosecution of the traffickers, he or she is granted a temporary residence permit for the duration of the criminal proceedings until the end of the trial, to be renewed each year. The statement of the victim with the police is automatically considered to be an application for such temporary residence permit, on which the IND has to decide within 24 hours. The temporary residence permit provides access to the labour market and to social welfare, legal, medical and psychological assistance on the same footing as Dutch nationals.
  • Law
  • Screening & Assessment
  • Vulnerability
  • Trafficked
  • All
  • Conditions that can be applied in New Zealand
  • New Zealand
  • Section 315 of the New Zealand Immigration Act 2009 states that the officer may in his/her absolute discretion, decide that instead of detention, persons can

    (a) reside at a specified place:
    (b) report to a specified place at specified periods or times in a specified manner:
    (c) provide a guarantor who is responsible for—
    (i) ensuring the person complies with any requirements agreed under this section; and
    (ii) reporting any failure by the person to comply with those requirements:
    (d) if the person is a claimant, attend any required interview with a refugee and protection officer or hearing with the Tribunal:
    (e) undertake any other action for the purpose of facilitating the person’s deportation or departure from New Zealand.

    The person is subject to arrest and detention if they fail to comply with the conditions of their release or in order to execute a deportation order. The application of these conditions is at the discretion of the immigration officer.


  • Law
  • Placement Options
  • Community with conditions
  • Migrants
  • All
  • Immigration Officers Discretion includes consideration of alternatives to detention in New Zealand
  • New Zealand
  • Section 315 New Zealand Immigration Act 2009 - immigration officer and person liable for arrest and detention may in his/her absolute discretion, decide that instead of detention, persons can (a) reside at a specified place: (b) report to a specified place at specified periods or times in a specified manner: (c) provide a guarantor who is responsible for— (i) ensuring the person complies with any requirements agreed under this section; and (ii) reporting any failure by the person to comply with those requirements: (d) if the person is a claimant, attend any required interview with a refugee and protection officer or hearing with the Tribunal: (e) undertake any other action for the purpose of facilitating the person’s deportation or departure from New Zealand.
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Law providing a mandate to consider alternatives to detention in Japan
  • Japan
  • Section 5 Article 54 of the Immigration Control and Refugee Recognition Act (ICRRA) allows for the Provisional Release of detainees, taking into consideration such matters as the circumstances, evidence produced in support of the application, and the character and assets of the foreign national pursuant to the provisions of an Ordinance of the Ministry of Justice, upon the foreign national paying a deposit not exceeding 3 million yen as provided by an Ordinance of the Ministry of Justice, and with such conditions as may be deemed necessary, such as restrictions on the place of residence and area of movement and the obligation to appear upon receiving a summons. Alternatively, a letter of guarantee submitted by a person other than the foreign national detained may be substituted for the deposit. Such a letter of guarantee shall contain the amount of the deposit and a statement that the deposit will be paid at any time.
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Norway - protection of trafficed persons
  • Norway
  • Norway has established both an asylum and a trafficking protection system. The 1988 Immigration Act established a legal framework for the granting of asylum and the 2008 Immigration Act stipulated that a trafficked person is considered a member of a particular social group, one of the grounds for persecution outlined in the refugee definition of the 1951 Refugee Convention. If the trafficked person is ineligible for refugee status for one reason or another, he or she may still qualify for a form of “subsidiary” protection. The second distinct system of protection relevant to trafficking protection and parallel to the international protection system is the domestic framework for protecting all people who are trafficked persons. The trafficking protection system is founded both on sections of the General Civil Penal Code and on a National Action Plan highlighting trafficked persons’ specific need for protection. Norway also has a Child Welfare Act that addresses child protection measures regarding trafficked children. This Act is supplemented by a government circular for relevant organizations and institutions drawing attention to the specific needs (including international protection needs) of trafficked children.
  • Law
  • Screening & Assessment
  • Vulnerability
  • Trafficked
  • All
  • Mandate to apply alternatives to detention in the first instance in Estonia
  • Estonia
  • Article 36 of Estonia’s Act on Granting International Protection to Aliens allows for the detention of asylum seekers if the application of alternatives is “impossible”, in line with the principle of proportionality. Article 29 outlines the alternatives to detention that officials can apply to applicants instead of detention, if required. These include:
    • residing in a determined place of residence;
    • appearing for registration at the Police and Border Guard Board at prescribed intervals;
    • notifying the Police and Border Guard Board of the absence from the place of residence for a period longer than three days; and
    • depositing the travel document issued by a foreign state at the Police and Border Guard Board
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All
  • Transit
  • Conditions that can be applied in the Netherlands
  • Netherlands
  • PART 2. SUPERVISION MEASURES
    Section 52

    1. Aliens may be required by Order in Council:

    (a) to give notice of any change of address or change in their place of residence in the Netherlands and of their departure to another country;
    (b) to furnish such information as may be of importance in the application of rules prescribed by or pursuant to this Act;
    (c) to assist in the recording of data with a view to identification;
    (d) to submit to a medical examination performed in the interests of public health in order to check for the presence of a disease designated by or pursuant to the Infectious Diseases Act or in the course of assessment of an application for a residence permit;
    (e) to report within a given period of their arrival in the Netherlands;
    (f) to report periodically;
    (g) to hand over the document or written statement referred to in section 9 evidencing the lawful residence.

    2. In cases in which Our Minister considers this to be necessary in the interests of public policy (ordre public) or national security, he may impose an individual obligation on an alien to report periodically to the chief of police.
  • Law
  • Placement Options
  • Community with conditions
  • Migrants
  • All
  • Hong Kong Law mandates that alternatives to detention are considered for specific vulnerable groups
  • Hong Kong SAR
  • Section 35 - Immigration Ordinance, Chapter 115 of the Laws of Hong Kong. An immigration oficer and police officer may require any person who is either detained or liable to be detained, to enter into a recognizance "in the prescribed form in such amount, with such number of sureties and subject to such conditions as the immigration officer or police officer may reasonably require or impose; and where a person who is so detained enters into such a recognizance he may be released." Conditions of a recognizance may include a condition that the person must— (a) report in person at the time and intervals, and at the office or police station, specified by the immigration officer or police officer; (b) notify an immigration officer or police officer in writing of any change in the person’s residential or correspondence address as soon as practicable after the change; (c) (if the person is a claimant as defined by section 37U(1)) attend interviews scheduled by an immigration officer under section 37ZB(1)(b).
  • Law
  • Liberty
  • Mandate to apply alternatives in the first instance
  • Migrants
  • All