Statement to the Human Rights Council 12th Session, Geneva Special Session on Migrants in Detention, 17th September, 2009

We, the undersigned organizations, welcome the resolution of the Human Rights Council to hold this panel discussion in order to explore the issue of detention of migrants, including ways to reduce the use of detention, preventative measures to ensure against human rights violations within places of detention, and also possible solutions to this ongoing problem.

Background
It is with great concern that we, the undersigned, note the increasing use of various forms of detention as a migration management tool by numerous States.
With less and less distinction made as to their different legal statuses under national as well as international law, and with decreasing attention to specific vulnerabilities of age, gender and circumstance, irregular migrants, refugees and asylum seekers are being detained in some or more of the following ways:
‧In removal centres, immigration detention facilities, prisons, police stations, airports, hotels, in ships and shipping containers, as well as in closed camps
‧On arrival in a country, pending a final immigration decision, or while awaiting removal from the country.

Worldwide, immigration and asylum decisions may take months or years, during which time men, women and children can languish in often overcrowded and unhygienic conditions. Many human rights violations can and do occur in these circumstances. In some cases there is little or no independent oversight of detention conditions or reasons for detention, and many migrants are denied access to bail hearings and to judicial review.

Refugees and asylum-seekers, who need international protection having fled their countries of origin owing to persecution, other serious human rights abuses, or armed conflict, are being denied access to the asylum and protection procedures to which international law entitles them. Stateless persons and others without documentation who are unable to be removed from the country may face being detained indefinitely. Non-criminal migrants are being mixed with criminal inmates, genders mixed in shared detention quarters, and children mixed with unrelated adults. The negative impact of even short-term detention on the mental health of individuals is now well documented, particularly for children .

Migration-related detention not only creates incredible hardships on those in detention, it also separates families, disrupts communities and diverts both governmental and non-governmental actors from more humane, reasonable and cost-effective alternatives to detention.

Human rights standards for detained migrants In considering comprehensive, integrated and balanced responses to the issue of migration-related detention, we would like to outline a number of international and regional human rights standards that States should consider before making a decision to detain a person for migration-related purposes:

‧As a general rule, certain classes of individuals should not be placed in migration-related detention, even if they lack proper documentation or are irregular migrants, including:
o Refugees and asylum seekers
o Children
o Pregnant women and nursing mothers
o Survivors of torture or trauma
o Victims of human trafficking
o The elderly and disabled
o Those in need of urgent physical or mental health care, including victims of violence suffered in transit.

‧ Refugees and asylum seekers should not be detained or penalized because they were compelled to enter a country irregularly or without proper documentation and must have the opportunity to seek asylum in a fair and effective asylum procedure. Doing so will bring a State into conflict with international human rights and refugee laws .

‧Children should not be detained or separated from their caregivers for migration-related purposes. Their best interests, including their right to development, must be protected in accordance with the Convention on the Rights of the Child.

‧For all classes of migrants, States should only use detention as a measure of last resort, after having considered whether there are less invasive means of achieving the same objectives, such as open centres, sureties, bail or reporting requirements.

‧If used, detention must be necessary and proportionate to the objective of initial identity, security or health checks, or otherwise to prevent absconding or in compliance with an expulsion order.

‧No one should be subject to indefinite detention. Indefinite detention is inhumane and contrary to international human rights law. In the case of refugees and asylum-seekers, it amounts to a penalty contrary to international refugee law. Detention should be for the shortest possible time, and specific maximum limits on the length of detention must be set out in law and strictly adhered to.

‧No one shall be subject to arbitrary detention. Decisions to detain must be exercised in accordance with fair policy and procedures and subject to regular independent judicial review. All detainees must be advised of the reasons for their detention and must have the right to challenge the lawfulness of their detention in a court, which must include the right to access legal counsel and the power of the court to release the detained individual.

‧Detention must ensure the human rights and dignity of the person and that conditions of detention comply with basic minimum human rights standards, including but not limited to access to legal counsel, healthcare, including in particular for pregnant and nursing women, provision of nutritious food, sanitary conditions, education for children, and other services.

‧There must be regular independent monitoring of places of detention to ensure that these standards are met. States should consider ratifying the Optional Protocol to the Convention against Torture, which provides a strong legal basis for regular and independent monitoring of places of detention by both national bodies and an international sub-committee.

In conclusion, we encourage all States to consider and implement legislation and policy that ensures the above international human right standards are maintained and upheld.

We note with concern the growing political environment where undocumented migrant are termed as illegal, we reiterate the call from the UN GA resolution 3449 of 9 December 1975 which recommended the use of the term “non-documented or irregular” rather than illegal migrant since the latter tends to criminalize the migrants.

We also note the statement of the Working Group on Arbitrary Detention in its February Report to this Human Rights Council:
The Working Group has noted with concern, during the period reported upon, a development yet again towards tightening restrictions, including deprivation of liberty, applied to asylum-seekers, refugees and immigrants in an irregular situation even to the extent of making the irregular entry into a State a criminal offence or qualifying the irregular stay in the country as an aggravating circumstance for any criminal offence .

They continue:
It was felt that States should be reminded that detention shall be the last resort and permissible only for the shortest period of time and that alternatives to detention should be sought whenever possible .

International good practice
It is in this regard that we commend the growing international examples of good practice around the world, where States have:
‧Introduced legislation to not detain refugees, asylum seekers and irregular migrants in the first instance, including children and other vulnerable groups ;
‧Introduced independent, regular monitoring of places of detention ; and
‧Developed community-based alternatives to detention models, such as public-private partnerships with NGOs that provide specialized assistance, information, legal provision and counseling for refugees, asylum seekers, children, families and victims of torture, human trafficking and trauma, including supports for rehabilitation, return and reintegration.

These models have in many instances led to high levels of compliance by individuals with immigration requirements, with the majority of individuals maintaining contact with the authorities and departing the country if refused the right to remain. They are also vastly cheaper than traditional detention and removal processes. These models have met government expectations, while ensuring the rights, dignity and wellbeing of refugees, asylum seekers and migrants are maintained. They also provide a useful starting point for the exploration of comprehensive, integrated and balanced solutions to the detention of migrants.

This statement is read by the Migrants Forum in Asia, written by the International Detention Coalition (IDC), Migrants Forum in Asia (MFA), Migrants Rights International (MRI) and National Network for Immigrant and Refugee Rights (NNIRR) and endorsed by the following organizations:

Source: MFA