States use a wide range of reasons to justify the detention of migrants 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.
“Any detention of migrants must be prescribed by law and must be necessary, reasonable and proportional to the objectives to be achieved,” Crépeau says, drawing special 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.
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.
“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,” he stresses. “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. 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.
“There is no empirical evidence that detention deters irregular migration or discourages persons from seeking asylum. 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.”
4 July 2012