Children behind bars: A vulnerability approach to the Norwegian practice of immigration detention of asylum-seeking children

Abstract

In 2014, the Norwegian Government voted in favour of prohibiting the practice of immigration detention of asylum-seeking children. Paradoxically, 2014 was also the year when 330 asylum-seeking children were detained at Trandum, Norway’s only officially designated detention centre. While previous research has shown that the Norwegian practice of immigration detention is a violation of the Norwegian Constitution and international human rights treaties, this thesis seeks to identify the potential underlying challenges to this practice. In particular, the thesis analyses how the relationship between the Norwegian State’s immigration considerations and the best interests of the child are balanced in cases of immigration detention and examines what weight is added to the different interests on the balancing scale. While the human rights regime has acknowledged asylum-seeking children to constitute a particular vulnerable group in need of special protection measures from the State; this thesis seeks to demonstrate how this application of the concept of vulnerability might undermine asylum-seeking children as individual legal subjects. Through applying a vulnerability approach, developed from the vulnerability theory of Martha Albertson Fineman, to the balancing test between the State’s immigration considerations and the best interests of the child, the thesis argues that designating asylum-seeking children as a particular vulnerable group undermines their agency. As a result, this can lead to paternalistic protection approaches from the State justifying the detention of asylum-seeking children on the basis of their best interests. As such, the thesis argues for a need to look beyond the characteristic as vulnerable and rather recognise the inherent resilience within all human beings to move out of particular vulnerable situations if provided with the necessary structures and assets from States.