Two sides of the same coin: Contradictory legal and administrative practices towards children in immigration detention centres in Indonesia, Malaysia and Thailand

Abstract

The scale of migration among Asian countries has increased over the decades. Children are also part of this migratory flow as they travel either alone or with their parents. Since much of the migration occurs through extra-legal routes, many migrants and their children face a multitude of legal problems, including incarceration. The number of children deprived of liberty for migration-related reasons in the Asia Pacific region has also increased over the past few years. This study will look at Indonesia, Malaysia and Thailand, as three of the most popular transit countries that routinely detain large numbers of children in immigration detention centres. Despite the fact that the Convention on the Rights of the Child (to which all three countries are party) emphasises the fact that detention does not serve the best interests of the child and, therefore, should only be used as a last resort and for the shortest appropriate period of time (article 37(b)), children nevertheless are routinely detained and then also for long periods of time. This is particularly problematic when children are detained for migration-related reasons, since it never serves the purpose of the best interests of the child (Nowak 2019). This study examines immigration detention centres (IDCs) by analysing from a sociopolitical perspective existing regulations and practices in the three countries selected. Using secondary data, the study addresses two questions, namely, (a) how existing legal and administrative practices of three Asia Pacific (transit/ destination) countries impact children in immigration detention centres; and (b) why these countries fail to uphold international obligations regarding the best interests of children in IDCs. The article argues that adverse administrative practices and the absence of domestic legal frameworks on children in IDCs contradict numerous international obligations. Not only does this jeopardise the survival and development of children, but it also creates barriers for these children to access fundamental human rights, social justice and other entitlements. Key words: children; best interests; deprived of liberty; detention; immigration law