Court: children’s best interests come first

Police and Border Guard Board (PPA) had applied for the detention of a family of six (parents and 4 children) in the detention centre, stating that there is a risk of escape. PPA based their evaluation on two grounds: the family did not apply for asylum immediately on the border; and earlier, they had applied for asylum in Russian Federation, but were denied. Estonian Human Rights Centre decided to represent the asylum seeker in court at their request and pointed out the circumstances according to which the detention was not justified. PPAs application had not taken into consideration the best interests and rights of children and furthermore had not taken into account neither Russia’s incompetence in asylum cases nor the unstable situation of asylum seekers, which may affect the precise moment for submitting the application for international protection.

Although the Refugee Convention states that the application for asylum must be submitted immediately, the term has a broader meaning practice. This means, among other things, that the speed of submitting the application is different in different situations and depends on the specific circumstances, e.g access to legal advice.

The Administrative Court stressed that detainment must be in conformity with the principle of proportionality and all important aspects related to the applicant of international protection must be taken into account on a case-by-case basis.

Detention must be the last measure, which is used only when other supervisory measures are not possible. When evaluating the proportionality of detention, the age of the persons is of particular importance. Four of the persons named in PPAs application were minors, the youngest being 1 year old and the oldest 9 years old.

The court found that children’s best interests are primary. In the case of minors, detention can only be justified by something exceptional, such as a serious threat to public order (suspicion of terrorism, a total inability to be separated from someone whose detention is unavoidable, etc.).

Estonian Human Rights Centre protects the rights of asylum seekers in cooperation with UNHCR.