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Immigration control must not compromise human rights

Irregular migrants must be protected against arbitrary deprivation of liberty and inhumane treatment, a panel of the Human Rights Council said on 17 September when addressing challenges posed by immigration-related detention.

Repatriated Filipinos, many of whom are migrant workers, stranded in Lebanon during the conflict in 2006, wave to the local media and airport staff upon arrival in the Philippines. © IOM / Angelo JacintoWhen opening the panel, High Commissioner for Human Rights Navi Pillay drew attention to the disturbing trend of criminalizing irregular migration and how it can lead to unnecessary detention and human rights violations. “The association of irregular migration with criminality promotes the stigmatization of migrants and encourages a climate of xenophobia and hostility against them.”

She stressed that terms such as “illegal immigrants” should be avoided and replaced by the internationally accepted definitions of “irregular” or “undocumented” migrants, which more accurately describe the situation of not having, or having lost, the proper documents allowing them to reside in a given territory or to work there.

As all panelists underlined, immigrants in an irregular situation should not be qualified or treated as criminals. “Irregular migrants are not criminal offenders”, said panelist William Gois, a representative of non-governmental organization Migrant Forum in Asia.

Under international human rights law, deprivation of liberty should be a measure of last resort. However, “migrants arriving irregularly in a new country are often detained as a routine – or even mandatory – procedure, often without proper judicial safeguards,” Pillay said.

Panelist El Hakji Malick Sow, Chairperson-Rapporteur of the Working Group on arbitrary detention voiced concern that in some countries, immigration detention and its duration are not subject to review by an independent judicial body.

“Detention for immigration reasons must never be used as a deterrent.” Sow underlined the Working Group’s support for the progressive elimination of immigration detention when it concerns persons who have committed no crime. 

The Committee on the Protection of the Rights of Migrant Workers and Members of their Families, through its recommendations, has addressed inadequate legal safeguards related to the conditions and often excessive length of immigration detention.

“Detention should cease as soon as the State can no longer provide appropriate reason for it to continue,” said panelist Abdelhamid El Jamri, Chairperson of the Committee.

Vanessa Lesnie, a representative of the Australian Human Rights Commission, referred to extensive investigations documenting the impact of prolonged and indefinite detention on children, families and adults in Australia. As she pointed out, “the results of those investigations are entirely predictable – arbitrary detention is wrong and it harms both the people detained and the community in which it occurs."

Panelists underlined that special attention must be given to migrant children. “Detention of children will never be in their best interests. Hence, the ideal utilization of a rights based approach would imply adopting alternative measures for the entire family," Jorge Bustamante, Special Rapporteur on the human rights of migrants told the panel.

The panel also discussed the need to find alternatives to detention in dealing with irregular migration. Panelist Lesnie shared the positive experience with alternative community-based forms of detention. Gois underlined that any alternative forms of detention must also be subject to adequate and independent judicial review.

The 12th session of the Human Rights Council takes place from 14 September to 2 October at the Palais des Nations in Geneva. More information is available on the webpage of the session, which is also webcast live.

22 September 2009