6. ALTERNATIVES TO DETENTION FOR CHILDREN (ATD) CHAPTER 1 The Commission has been consistent in its call on the Government to end immigration detention of children. It notes that there may be exceptional instances where the immigration status of children need to be determined and, pending such determination, these affected children would need to be protected and placed somewhere. The Commission also notes that the current practice of the Government is to keep these children, including unaccompanied or separated children (UASC), in immigration detention centres. Concerned that such an act is against the principle of the best interest of the child and that the legality of the detention of some of these children could be questioned, the Commission and civil society groups have recommended that the Government ensure that UASC are placed in an environment conducive to their development and growth, and that they should not be kept and locked in immigration detention centres. This is in consonant with the Government’s obligations under Articles 339 and 2240 of the Convention on the CRC. In previous years the Commission had reported of its concerted efforts with CSOs to explore ATD41 for children in immigration detention centres in Malaysia. The initiatives began in 2012 and in 2014 the Minister of Home Affairs agreed to establish a Working Group on ATD comprising representatives of Government agencies including the Immigration Department, Department of Social Welfare, and Ministry of Home Affairs; the Commission; and members of civil society including SUKA Society, the International Detention Coalition, and Yayasan Chow Kit, to find ways to implement ATD. While the Commission commends the dedication and commitment by the members of the Working Group towards the implementation of ATD, the Commission appreciates their concerns, especially the concern of Government agencies on the need to ensure that the implementation of ATD is permissible within the existing legal framework. As such, as reported in its 2015 Annual Report, the Commission had submitted a proposal on ways to operationalise ATD for UASC in immigration detention based on its interpretation of the existing legal framework. To recapitulate, the Commission proposed that the Director-General (DG) of the Immigration Department uses his discretion under Section 27(1)(ii) of the Immigration Act 1959/1963 to release, with certain conditions, UASC to the custody of registered NGOs. It was further recommended that the Minister of Home Affairs exercises his discretion under Section 55 of the Immigration Act to exempt all UASC from the application of the Immigration Act, and instead divert these children to the custody of registered NGOs for appropriate case management and prompt 39 Article 3 requires States to uphold the principle of the best interest of the child. 40 Article 22 imposes a duty on the State to ensure appropriate protection of children seeking refuge or asylum. 41 Alternatives to Detention refers to any law, policy, or practice by which persons are not detained for reasons relating to their immigration status. It also refers to ways of enabling people, in this case UASC, to be supported and managed in the community, without the need for detention, while their immigration status is being resolved. SUHAKAM ANNUAL REPORT 2016 71 suhakam 2new.indd 71 3/23/17 5:54 PM