
Contents
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1. Introduction 1. Introduction
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2. The Concept of Vulnerability in the ECtHR Jurisprudence 2. The Concept of Vulnerability in the ECtHR Jurisprudence
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2.1 Asylum Seekers—Persons in a Vulnerable Position 2.1 Asylum Seekers—Persons in a Vulnerable Position
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2.2 Children—Inherently Vulnerable Group 2.2 Children—Inherently Vulnerable Group
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2.3 Migrant Children—An Especially Vulnerable Group 2.3 Migrant Children—An Especially Vulnerable Group
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2.4 Vulnerability—Flexible Concept 2.4 Vulnerability—Flexible Concept
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3. Overlap and Complementarity between the Principle of the Best Interests of the Child and the Concept of Vulnerability of Migrant Children 3. Overlap and Complementarity between the Principle of the Best Interests of the Child and the Concept of Vulnerability of Migrant Children
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4. Legal Consequences of the Concept of Vulnerability in the ECtHR Jurisprudence Related to Migrant Children 4. Legal Consequences of the Concept of Vulnerability in the ECtHR Jurisprudence Related to Migrant Children
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4.1 Particular Obligations of the States towards Migrant Children 4.1 Particular Obligations of the States towards Migrant Children
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4.2 Assessing the Threshold of Severity Justifying the Application of Article 3 4.2 Assessing the Threshold of Severity Justifying the Application of Article 3
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4.3 Determining the (Un)lawfulness of the Detention of Migrant Children under Article 5 of the Convention 4.3 Determining the (Un)lawfulness of the Detention of Migrant Children under Article 5 of the Convention
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4.4 Assessing Proportionality under Article 8 of the Convention in Connection with a Right to Family Life of Migrant Children in Administrative Detention 4.4 Assessing Proportionality under Article 8 of the Convention in Connection with a Right to Family Life of Migrant Children in Administrative Detention
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5. Conclusion 5. Conclusion
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5 Challenges to the Application of the Concept of Vulnerability and the Principle of Best Interests of the Child in the Case Law of the ECtHR Related to Detention of Migrant Children
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Published:February 2021
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Abstract
The administrative detention of migrant children, and the conditions of deprivation of liberty, pose serious challenges to the realisation of their rights. The present chapter discusses the concept of vulnerability and the principle of the best interests of the child, and their legal consequences, for the effective respect, protection, and fulfilment of the human rights of migrant children in the context of immigration detention. In doing so, it gives a short overview of the developments in the Court’s case law related to detention of migrant children. Using the Court’s concepts of vulnerability, the best interests of the child, and circumscribed child’s autonomy, as well as taking inspiration from other international instruments and EU law, this chapter attempts to demonstrate where the European Court of Human Rights (ECtHR) case law on the detention of migrant children in particular under Articles 3, 5, and 8 of the ECHR could grow further, and the opportunities for such growth, as well as the barriers to it.
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