M.H. and S.B, are an Afghan and a Pakistani national respectively, who were placed in detention in Hungary after crossing into the territory in 2016, when they were still minors. According to the records regarding their interviews by the immigration authorities’, both applicants requested asylum and they initially stated that they were adults, soon after changed their statements and noted that they were minors and requested age assessment. M.H. was detained from 4 May to 5 August 2016 and S.B. from 23 June to 23 August 2016.

Before the ECtHR, they raised claims under Article 5 § 1 (right to liberty and security) of the European Convention, arguing that their detention did not fall under Article 5 § 1 (f).

The court referred to it previous judgment in M.H. and others v Croatia (Nos 15670/18 and 43115/18, 18 November 2021) and the CJEU judgment of Arslan (C-534/11, EU:C:2013:343) to highlight the principle that “the confinement of migrant children in a detention facility should be avoided, and that only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, provided, however, that the national authorities can establish that they resorted to such a measure only after having verified that no other measure involving a lesser restriction of freedom could be implemented”. It further noted that “various international bodies, including the Council of Europe, are increasingly calling on States to expeditiously and completely cease or eradicate the immigration detention of children” and that it has itself repeatedly emphasised that “a child’s extreme vulnerability should be a decisive factor and should take precedence over considerations relating to his or her status as an irregular migrant”.

Furthermore, the court did not find it necessary to rule on whether the applicants’ detention fell under the first limb of Article 5 § 1 (f) and reiterated that Article 5 § 1 (b) could also potentially provide justification for the detention of asylum‑seekers. It also added that irrespective of which sub-paragraph is engaged, detention must be in compliance with national law and free from arbitrariness and found that this requirement was not met for both applicants.

The court observed that at the time of the events both applicants were minors and that under domestic law, unaccompanied minor asylum-seekers could not be detained under any circumstances. The court added that the mere fact that the applicants claimed to be minors after initially stating that they were adults could not justify dismissing those claims without taking appropriate measures to verify their age. It also added that confinement of migrant children in a detention facility should be avoided and that only placement for a short period in appropriate conditions could be considered compatible with Article 5 § 1 of the Convention, if national authorities resorted to that measure after verifying that no other less restrictive measure could be used.

On the individual facts of the case, the court observed that for the first applicant, the domestic court extended his detention on 29 June 2016 without addressing his claim to be a minor and only after the representative submitted an Afghan identity document on 30 June 2016, and later another similar document, the asylum authority terminated his detention on 5 August 2016, finding that he was an unaccompanied minor. The court noted that the authorities did not explain why it took a month to translate the document presented on 30 June 2016 and why age assessment was not ordered promptly. Thus, the court found that the first applicant was detained for three months after he informed the authorities that he was a minor.

Regarding the second applicant, the court noted that he stated that he was a minor on 23 June 2016, and an age assessment was ordered on 10 August 2016, after the authorities were informed that the applicant had been registered as a minor in Bulgaria and could not be returned there unless it was established that he was an adult. The court also noted that the domestic court extended the applicant’s detention while noting the pending age assessment procedure but without addressing the possibility that he was a minor, and that detention was terminated on 23 August 2016 after the authorities received the expert medical opinion concluding that the applicant was between sixteen and seventeen years old.

The court found that:

-  the applicants were kept in detention for a considerable time after they had stated that they were minors

- the decisions concerning their detention, issued after they claimed to be minors, did not explain why less coercive measures were not considered appropriate and did not indicate if the delays in establishing their age were necessary.

- the domestic authorities did not give the benefit of the doubt to the applicants and did not consider their best interests and presumed them to be adults only because they changed their statements.

- the authorities placed the burden of rebutting the presumption on the applicants, disregarding the fact that detained asylum applicants and especially children would find it challenging if not impossible to obtain the necessary evidence to prove their age.

The court concluded the domestic authorities failed to act expeditiously and with due regard to the children’s best interests, and that the detention was arbitrary and not carried out in good faith, thus in violation of Article 5 § 1 of the Convention.