The European Court of Human Rights’ Interpretation of the Right to Freedom and Its Role in Defining the Best Interests of the Child in Asylum Procedures

Document Type : Research Paper

Authors

1 Professor, Department of Public and International Law, Law Faculty, Shahid Beheshti University, Tehran, Iran

2 Ph D Student of International Law, Department of Public and International Law, Law Faculty, Shahid Beheshti University, Tehran, Iran

Abstract

Introduction
Poverty, climate change, armed conflicts, national upheavals, persecution, and other global crises have forced many children to migrate alone or with their guardians to seek asylum in other countries for a chance at a normal life. Unfortunately, these children often face violence and abuse during asylum procedures, endure harsh living conditions, and later experience restrictions on their rights even in host countries. With the escalation of armed conflicts in the Middle East, large-scale climate disasters, and other global challenges in recent years, the number of children seeking asylum in the European Union has risen sharply. Consequently, EU member states have sought to limit or prevent the entry of asylum seekers. At the same time, international and European human rights laws have established minimum safeguards in asylum procedures to restrict states’ broad discretion in deporting or detaining children.
Methods
The key question addressed in this study is: How has the European Court of Human Rights balanced the best interests of the child against state security concerns? To answer this, the authors employed a combination of analytical and library-based research methods, leading to the following findings.
Findings
Under Article 37(b) of the UN Convention on the Rights of the Child (CRC), EU member states have specific obligations regarding child detention. Additionally, the Committee on the Rights of the Child, alongside the Committee on Migrant Workers, asserts that detaining migrant children solely due to irregular entry or residence—unless absolutely necessary for state security—violates the principle of the best interests of the child and should be prohibited.
However, if children in asylum procedures pose a genuine and immediate security threat to the host state, detention may be justified under extreme circumstances. This interpretation aligns with Article 3(1) of the CRC, which recognizes the best interests of the child as “a primary, but not sole, consideration” that must be weighed against other factors. In such cases, states may detain children only as a last resort, applying strict legal tests to assess necessity.
Results
The “necessity and proportionality” testdictates that any restriction on a child’s freedom must be both essential and proportionate to the threat. Balancing this with the best interests of the child, the European Court of Human Rights, through its interpretation of Article 5 of the European Convention on Human Rights, has outlined specific conditions for lawful detention:

The detention must be legally justified;
The detention facility must be child-appropriate.

Regarding the second condition, the Court emphasizes that detention centers for children must meet their unique needs, including access to education, healthcare, recreational activities, and cultural resources. Moreover, prolonged detention or placement in police facilities can cause severe psychological harm and is deemed incompatible with the child’s best interests.

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Main Subjects

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