Mexico

Mexico has ratified all six Conventions and Protocols that assist in the protection of children in the context of migration.

The Mexican legal framework prohibits children and adolescents from being placed in immigration detention, however it does not explicitly prohibit the detention of their parents or caregivers. Further, there is a lack of legislative harmonisation given that the Migration Law continues to allow for children and adolescents to be detained in “exceptional” circumstances, such as when appropriate placement options are not available. In practice, the exception has become the rule and, despite the explicit prohibition, the majority of children and adolescents continue to be detained.

Identifying children and adolescents in the context of migration is a significant gap in Mexico, in both policy and practice. Protocols require that the Procurator Offices for the Protection of Children and Adolescents be notified of children in detention, and there are guidelines for the restitution of their rights. However, these are very rarely applied in practice, with the vast majority of children and adolescents remaining in detention before being returned to their countries of origin, without an adequate evaluation of their particular case or possible protection needs. In some cases, children and adolescents who apply for refugee status have the opportunity to leave detention centers, but only after spending weeks, or even months, in detention.

The General Law on the Rights of Children and Adolescents establishes a procedure to evaluate and determine the best interests of children in charge of the Protection Offices. However, the law is not implemented in a systematic and individualised manner. There is no independent guardian assigned to the immigration authority that is responsible for protecting the best interests of unaccompanied or separated children and adolescents. The migration authority frequently makes decisions about the child or adolescent without waiting for the best interests determination of the relevant authorities on child rights, which should be paramount in this situation.

In most cases, children and adolescents do not have any documentation to protect them from being detained while awaiting the resolution of their immigration or asylum procedure. There have been some cases where children have been placed into shelters without their own documents or documentation of the status of their case. In cases where the authorities have granted temporary stay, it has been reported that there have not been adequate processes to provide the children with the appropriate documentation.  In any case the documentation often does not facilitate access to education, health services or other fundamental rights. Children and adolescents also do not have access to legal advice, case management or interpretation and translation services. When these services exist, they are mainly provided by civil society organizations, generally without financial support from the Mexican Government.

In general, the Mexican Government only considers placement options in the community setting for children and their family members who are seeking asylum. These placement options are limited and almost always include conditions and restrictions on liberty.

While applying for asylum, some families have the opportunity to leave detention centers through the alternatives to detention program which is implemented jointly by the Government, UNHCR and civil society. The implementation of the alternatives program relies on civil society shelters. All families are detained until the application is formally acknowledged, which can take more than a month. Upon being freed from detention, families are placed in shelters with conditions that require them to stay in a single geographical area and to appear periodically before the authorities. These conditions are implemented without evaluating whether they are necessary in each individual case.

In general, families who do not apply for asylum are detained. Detention centres do not have spaces for families, so in general families are separated.  Young children are usually allowed to remain with mothers, but adolescents are usually separated from parents.

Contrary to Mexico’s legal framework, the majority of children and adolescents are either detained or remain in closed centres that compromise their right to liberty. This is due in part to the lack of specialised agencies and places in the System for Integral Development for the Family. Some unaccompanied children and adolescents, especially asylum seekers, have been referred to civil society organizations for support. However, in order to enable these referrals to take place, some shelters have become redesigned as extensions of detention, restricting the liberty and compromising the rights of the children and adolescents.

A child or adolescent’s physical location and access to the support of civil society organisations has a significant impact on their access to rights. Although access to education and health services, among other rights, is established in the regulatory framework regardless of migration status, in practice children and adolescents have limited access to these rights. The lack of a Single Population Registration Code or other documentation is a significant barrier preventing children and adolescents from being able to access their rights.

Mexico has no automatic and independent review mechanism of immigration detention. The National Human Rights Commission has been designated as the National Mechanism for the Prevention of Torture and Ill-treatment, but it has not achieved detailed, systematic and regular monitoring of places and conditions of detention, in part because immigration detention is not recognised as deprivation of liberty. Civil society organisations are not permitted access to immigration detention for monitoring purposes, but various organisations deliver services to detained or formerly detained migrants, through which they have been able to document the functioning of the centres. The Government of Mexico can be congratulated improvements in the conditions of detention; however, due process and access to justice continue to be violated and even to deteriorate.

The Government is to be congratulated for the regular publication of statistics on the use of immigration detention, with disaggregated data on age, sex and migration status, among others although it could be improved by indicating incidences where people have been detained multiple times, length of detention and the ages of adult detainees. In addition, the Government does not provide statistics to evaluate the effectiveness of alternatives to detention for children and adolescents, family groups or adults.

Despite being forbidden in the Mexican legal framework, 2017 saw more than 18,000 children and adolescents detained in Mexico because of their migration status. In general, children and adolescents are immediately detained and returned within 3 to 7 days to their countries of origin, although in some cases they can be detained for months. These children and adolescents rarely have an evaluation of their particular case or any identification of their protection needs. The children and adolescents who apply for asylum spend weeks or months in detention before being released and placed in the community setting, often with restrictions on their freedom or free movement.

The Mexican Government has committed to ending immigration detention of children and adolescents. However, it  has been severely criticized for not implementing practices to enable this commitment can be honored. Although small-scale efforts have been made to explore the use of alternatives to detention for asylum-seekers, they have not become systematic practices. These efforts include a pilot for 20 unaccompanied children and adolescents, implemented in 2015 by the Government and two civil society organizations with specialist knowledge in alternative care, SOS Children’s Villages and Casa Alianza, with the coordination and technical support of the International Detention Coalition. In 2016, pilot projects were carried out independently for families and adults requesting refugee status, which are now programs implemented by the National Institute of Migration and the Mexican Commission for Refugee Aid in collaboration with shelters and civil society organizations, and with the support of UNHCR.

Despite the many lessons learned and positive results of these initiatives, the Mexican Government has not implemented alternatives to detention in a systematic and coordinated way. Moreover, the implementation and strengthening of current alternatives has been left almost entirely under the direction of civil society and international organizations – public resources need to be urgently invested in order to ensure sustainability.