Child rights strategic litigation on deprivation of liberty for migration-related reasons: Review of selected cases in Asia and Europe

Abstract

The position of children deprived of liberty for migration-related reasons entails key challenges to children’s rights and “child rights strategic litigation” (CRSL) emerges as one way to tackle them while feeding more broadly into national and international advocacy efforts. Litigation practice in this regard has emerged on the issue of deprivation of liberty in the third decade after the coming into force of the United Nations Convention on the Rights of the Child. This article analyses some pertinent litigation efforts undertaken in Asia and Europe. In considering selected case-law (already decided or in the process of litigation) at both national and international/regional levels, it addresses the main issues arising in relation to migration detention and children’s rights, how this litigation has been done, the actors involved, the legal standards employed, and eventually the courts’ reasoning. Concluding remarks for a children’s rights preparedness are articulated, reflecting on the pivotal importance of stakeholders’ approaches towards litigation strategies that are consistent with children’s rights and aim to advance children’s enjoyment of their rights, in order to contribute effectively to tackle such a harmful practice and bring changes against it. It is thus argued that CRSL can be a valuable means to advance access to justice for migrant children.