By Jaya Ramachandran
The United Nations has in a new report expressed grave doubts about the widespread practice of detaining migrants. States use a variety of reasons to justify this practice and some see irregular migration as a national security problem or a criminal issue, notes the UN Special Rapporteur on the human rights of migrants, François Crépeau, in his latest report to the Human Rights Council. However, he warns, there are a number of human rights issues at stake.
Different categories of migrants are subjected to detention, including migrants who are undocumented or in an irregular situation, asylum-seekers awaiting the outcome of their asylum application and failed asylum-seekers awaiting removal.
The Special Rapporteur emphasizes that “there is no empirical evidence that detention deters irregular migration or discourages persons from seeking asylum,” adding: “Despite increasingly tough detention policies being introduced over the past 20 years in countries around the world, the number of irregular arrivals has not decreased. This may be due, inter alia, to the fact that migrants possibly see detention as an inevitable part of their journey.”
“Any detention of migrants must be prescribed by law and must be necessary, reasonable and proportional to the objectives to be achieved,” says Crépeau, drawing attention to the fact that the right to liberty and security of person, the protection against arbitrary detention, and all other human rights are applicable to all detained persons, regardless of their migration status.
Article 3 of the Universal Declaration of Human Rights guarantees to “everyone”, including migrants in an irregular situation, the right to life, liberty and the security of person and provides that “no one” shall be subjected to arbitrary arrest, detention or exile.
Article 9, paragraph 1, of the International Covenant on Civil and Political Rights ordains that everyone has the right to liberty and security of person, no one shall be subjected to arbitrary arrest or detention and no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The Human Rights Committee, which monitors the implementation of the Covenant, in its general comment No. 8 (1982) on right to liberty and security of persons stated that this provision is applicable to all deprivations of liberty, including immigration control. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families also protects the right to liberty and security of person and provides all migrant workers regardless of their status with the right not be subjected individually or collectively to arbitrary arrest or detention and the right not be deprived of liberty except on such grounds and in accordance with such procedures as are established by law (Articlea 16, paras. 1 and 4).
The Special Rapporteur adds that a decision to detain should only be taken under clear legal authority, and all migrants deprived of their liberty should be assisted, free of charge, by legal counsel and by an interpreter during administrative proceedings. Migrants under administrative detention should be placed in a public facility specifically intended for that purpose, not those intended for persons imprisoned under criminal law.
However, information received by the Special Rapporteur indicates that migrants are detained in a wide range of places, including prisons, police stations, dedicated immigration detention centres, unofficial migration detention centres, military bases, private security company compounds, disused warehouses, airports, and ships.
These detention facilities are placed under the responsibility of many different public authorities, at local, regional or national level, which makes it difficult to ensure the consistent enforcement of standards of detention. Migrants may also be moved quite quickly from one detention facility to another, which also makes monitoring difficult. Moreover, migrants are often detained in facilities which are located far from urban centres, making access difficult for family, interpreters, lawyers and NGOs, which in turn limits the right of the migrant to effective communication.
Crépeau adds: “Privately run migrant detention centres pose particular difficulties in terms of monitoring. They may also pose particular concern if the contracts for managing detention centres are awarded to the company that offers the lowest cost, without giving sufficient attention to the obligation to treat those detained with humanity and with respect for their dignity.”
The Special Rapporteur says in his report that immigration detention should never be mandatory or automatic. It should be a measure of last resort, only permissible for the shortest period of time and when no less restrictive measure is available.
“Governments have an obligation to establish a presumption in favour of liberty in domestic law, and should consider progressively abolishing the administrative detention of migrants.”
Crépeau also focuses on providing special protection for certain categories of migrants in detention, including women, children, people with disabilities, people living with HIV/AIDS, victims of torture, and victims of trafficking.
Women in detention should be separated from men and supervised only by women officers in order to protect them from sexual violence, he says. The detention of pregnant women migrants and breastfeeding mothers should be avoided, and legislation should not permit the detention of unaccompanied children.
“Legislation should prevent trafficked persons from being prosecuted, detained or punished for illegal entry or residence in the country or for the activities they are involved in as a consequence of their situation as trafficked persons,” the expert adds.
In his report, Crépeau shares a range of successful non-custodial alternatives to detention, which are also considerably less expensive than detention measures. However, he warns, the success of those alternatives depends on the adoption of a human rights approach.
The report is submitted in accordance with Human Rights Council resolution 17/12, and is the first to be presented to the Human Rights Council by the newly appointed Special Rapporteur on the human rights of migrants. Crépeau assumed his functions on August 1, 2011.