Detention of migrants and their criminalization

In a number of countries, migrants – including members of their families – are subject to detention much more readily than are nationals, sometimes under abusive conditions. Undocumented migrants in particular are often arrested, detained and expelled without being able to defend themselves in accordance with due process.

The right of everyone, including migrants, to liberty and security of person, and the protection from arbitrary arrest and detention are spelled out in Articles 9 and 10 of ICCPR, which also outline the applicable guarantees with regard to detention and trial.

Many of these rights are reiterated in regional human rights instruments. Given the particular situation of migrant workers, and particularly those in an irregular situation, Article 16 of ICRMW is more specific. The UN Committee on Migrant Workers has underscored the importance of this provision with regard to the arrest and detention of migrant workers in an irregular situation and members of their families (see Annex II).

The Special Procedures mandates of the UN Human Rights Council have also raised concerns about the detention of migrants, including those in an irregular situation.

The Working Group on Arbitrary Detention has discussed the detention of migrants on several occasions; for example, see Report of the Working Group on Arbitrary Detention, UN doc. A/HRC/10/21 (16 February 2009), paras. 65 – 68.

In his 2012 report to the UN Human Rights Council, the Special Rapporteur on the human rights of migrants also focused on the detention of migrants in an irregular situation, putting forward a number of comprehensive and detailed conclusions and recommendations to UN Member States.

Box 4.24 Detention of migrants in an irregular situation

Conclusions and recommendations of the Special Rapporteur on the human rights of migrants

68. Detention for immigration purposes should never be mandatory or automatic.

According to international human rights standards, it should be a measure of last resort, only permissible for the shortest period of time and when no less restrictive measure is available. […]

69. The reasons put forward by states to justify detention should be clearly defined and exhaustively enumerated in legislation. If, as a measure of last resort, a State resorts to detention for immigration-control purposes in an individual case, this should be considered only when someone presents a risk of absconding or presents a danger to their own or public security.

70. Administrative detention should not be applied as a punitive measure for violations of immigration laws and regulations, as those violations should not be considered criminal offences.

71. The Special Rapporteur calls on states to adopt a human rights-based approach to migration and review their legislation and policies on detention of migrants, ensuring that national laws are harmonized with international human rights norms that prohibit arbitrary detention and inhumane treatment.

72. The Special Rapporteur calls on states to consider progressively abolishing the administrative detention of migrants. In the meantime, Governments should take measures to ensure respect for the human rights of migrants in the context of detention, including by:

(a) Ensuring that procedural safeguards and guarantees established by international human rights law and national law are applied to any form of detention. […]

(b) Ensuring that migrants in detention are accurately informed of the status of their case and of their right to contact a consular or embassy representative and members of their families. […]

(c) Ensuring that the law sets a limit on the maximum length of detention pending deportation and that under no circumstance is detention indefinite. There should be automatic, regular and judicial review of detention in each individual case. Ad-ministrative detention should end when a deportation order cannot be executed.

(d) Ensuring that migrants under administrative detention are placed in a public establishment specifically intended for that purpose or, when this is not possible, in premises other than those intended for persons imprisoned under

(e) Ensuring that the Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment are applied to all migrants under administrative detention. [...]

(f) Applying the Standard Minimum Rules for the Treatment of Prisoners to migrants under administrative detention. […]

(g) Giving particular attention to the situation of women in detention, ensuring that they are separated from men, and attended and supervised only by women officers, in order to protect them against sexual violence, and avoid the detention of pregnant women and breastfeeding mothers.

(h) Ensuring that legislation does not allow for the detention of unaccompanied chil-dren and that detention of chilchil-dren is permitted only as a measure of last resort and only when it has been determined to be in the best interests of the child, for the shortest appropriate period of time and in conditions that ensure the realiza-tion of the rights enshrined in the Convenrealiza-tion on the Rights of the Child. […]

(i) Ensuring that legislation prevents 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. […]

(j) Taking into due consideration the particular vulnerabilities of specific groups of migrants including victims of torture, unaccompanied older migrants, migrants with a mental or physical disability and migrants living with HIV/AIDS. […]

(k) Applying stateless status determination procedures to stateless migrants, and provide persons recognized as being stateless with a lawful

immigration status.

73. The Special Rapporteur would like to remind Governments that alternatives to detention should not become alternatives to unconditional release, whenever such release is a possibility. […]

74. The Special Rapporteur encourages states to collect disaggregated data on the number of migrants in administrative detention, the number of migrants who are subject to different types of non-custodial measures and the compliance rate with these measures, in order to evaluate their effectiveness. […]

Report of the Special Rapporteur on the Human Rights of Migrants, François Crépeau, United Nations General Assembly, Human Rights Council, 20th Session, UN doc. A/HRC/20/24 (2 April 2012).

The principles discussed above can be summarized as follows:

• Migrants should not be treated as criminals; those who are in an irregular situation have committed, at most, administrative infractions rather than criminal offences.

• Detention of migrants should only be considered a last resort and only with a view to their expulsion from the country.

• Alternatives to detention should be actively sought.

• If detained, migrants should be kept apart from persons detained in the criminal process.

• Migrants should not be detained in prisons.

• Families should not be separated.

• Children should never be detained. Detention of children is incompatible with the principle of the best interests of the child.

Box 4.25 Combating the use of detention for migrants: the cases of the European Union and Venezuela

European Union

Almost all Member State parliaments in the European Union have enacted legislation requiring governments to pursue measures other than detention in cases concerning migrants in an irregular situation, with detention used only as a last resort. The alternatives include requiring migrants to report to the authorities at regular intervals, reside at a specific address and be released to a care worker.

Reports indicate, however, that greater effort is needed to implement these laws fully.

Venezuela

Venezuela adopted a commitment to similar alternatives to detention in its 2004 immigration law, which went a step further and prohibited the detention of migrants. According to academic sources, Brazil, Peru and Uruguay do not detain migrants as a matter of policy.

4.5.5 Protection against arbitrary expulsion,