Grant Mitchell. Director of the International Detention Coalition is
asking for organizational endorsement of the following statement to be
presented to the Human Rights Council on 17 September. Please circulate
it to any organizations that might be interested in so doing. Their
endorsements must be sent to [log in to unmask] by 11 September.
Below are his contact details.
Thank you for your consideration,
Rosemary Galli
C/132 Leicester St
Carlton, Vic, 3053
Australia
Fax: +61 3 9347 1495
Email: [log in to unmask]
_____
Statement to the Human Rights Council 12th Session, Geneva
Meeting 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[1].
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. [2]
* 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[3].
* 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.[4]
* 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. [5]
* 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.[6]
* 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.[7]
* 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.[8]
* 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.[9]
* 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.[10]
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[11].
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[12].
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[13];
* Introduced independent, regular monitoring of places of
detention[14]; 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.[15]
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.[16]
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:
Organization
Email
_____
[1] International Detention Coalition, Children in Immigration
Detention- Position Paper, November 2007
[2] 1951 Geneva Convention Relating to the Status of Refugees, art.
31(1); Convention on the Rights of the Child, articles 3(1), 22(1),
37(c)(1990); OHCHR Recommended Principles and Guidelines on Human Rights
and Human Trafficking, E/2002/68/Add.1 (20 May 2002), Guideline 2, 6,
Guideline 4, 5, Guideline 6, 1; UNHCR Revised Guidelines on Applicable
Standards Relating to the Detention of Asylum Seekers, §§ 6, 7, 8, 9,
22, 37 7, 8,10(Feb. 1999); UN Standard Minimum Rules for the Treatment
of Prisoners (1977), Rules 8, 53(1).
[3] 1951 Geneva Convention Relating to the Status of Refugees, art.
31(1); Convention on the Rights of the Child, articles 3(1), 22(1),
37(c)(1990);; UNHCR ExCom Conclusion No. 97 (LIV-2003), (a)(vi); UNHCR
ExCom Conclusion No. 85 (XLIX-1998) (ee); UNHCR ExCom Conclusion No.
55 (XL-1989) (g); UNHCR ExCom Conclusion No. 44 (XXXVII-1986) (a);
UNHCR ExCom Conclusion No. 22 (XXXII-1981), 2; UNHCR Revised Guidelines
on Applicable Standards Relating to the Detention of Asylum Seekers, §
1(Feb. 1999).
[4] Convention on the Rights of the Child, articles 3(1), 9(1), 22(1),
37 (1990).
[5] 1951 Geneva Convention Relating to the Status of Refugees, art.
31(2); International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Family (1990), art. 39(1); UNHCR
Revised Guidelines on Applicable Standards Relating to the Detention of
Asylum Seekers, § 3 (Feb. 1999); UNHCR ExCom Conclusion No. 44
(XXXVII-1986); UNHCR Revised Guidelines on Applicable Standards Relating
to the Detention of Asylum Seekers, § 3 (Feb. 1999); UNHCR ExCom
Conclusion No. 44 (XXXVII-1986). The principle of proportionality
supports the use of detention only as a measure of last resort. Under
this principle, any measure taken by a government affecting a basic
human right – such as the right to liberty – must be: appropriate in
order to achieve the objective desired; necessary in order to achieve
that objective; and, reasonable.
[6] 1951 Geneva Convention Relating to the Status of Refugees, art.
31(2); International Convention on the Protection of the Rights of All
Migrant Workers and Members of their Families (1990), art. 39(2); UNHCR
Revised Guidelines on Applicable Standards Relating to the Detention of
Asylum Seekers, § 3 (Feb. 1999); UNHCR ExCom Conclusion No. 44
(XXXVII-1986).
[7] UNHCR Revised Guidelines on Applicable Standards Relating to the
Detention of Asylum Seekers, §§ 3, 9 (Feb. 1999); UNHCR ExCom Conclusion
No. 85 (XLIX-1998); Working Group on Arbitrary Detention, Deliberation
Number 5, E/CN.4/2000, 4, Annex II, 2000, Principle 7.
[8] International Covenant on Civil and Political Rights (1966),
articles 2(3),9(1), 9(2), 9(4); Convention on the Rights of the Child,
art. 37(b) (1990); International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families (1990),
articles 16(4), 16(5), 16((7), 16(8), 18(3)(d); UNHCR Revised Guidelines
on Applicable Standards Relating to the Detention of Asylum Seekers, 1,
§§ 3, 5, 9 (Feb. 1999); UNHCR ExCom Conclusion No. 44 (XXXVII-1986), §
(e).; Report of UN Special Rapporteur on the Human Rights of Migrants,
Gabriela Rodriquez Pizarro, E/CN.4/2003/85, Recommendation 75.; Report
of Special Rapporteur on Torture and other Cruel, Inhuman or Degrading
Treatment of Punishment, Theo van Boven, E/CN.4/2003/68, 26(g); UN Body
of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment (1988), Principles 4, 9, 11(1), 11(2), 13, 14,
32; Conclusions and Recommendations of the Working Group on Arbitrary
Detention, E/CN.4/2004/3, 85, 86; Report of the Working Group on
Arbitrary Detention, E/CN.4/2004/3/Add.3 (2004), Recommendations, 75;
Report of the Working Group on Arbitrary Detention, Deliberation Number
5, E/CN.4/4, Annex 11, 2000, Principle 8; UN Body of Principles for the
Protection of All Persons Under Any Form of Detention of Imprisonment
(1988), Principles 11(1), 14, 17(1), 18(1).
[9] International Covenant on Civil and Political Rights (1966),
articles 7, 10(1); Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment and Punishment (1984), art. 16(1); Convention on
the Rights of the Child, articles 3, 22(1), 37(1990); International
Convention on the Protection of Human Rights of All Migrants and Their
Families (1990), art. 17; UNHCR Revised Guidelines on Applicable
Standards Relating to the Detention of Asylum Seekers, §§ 7, 8, 9,
10(Feb. 1999); UN Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment (1988), Principles 1, 3, 6, 28.
[10] Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984), art. 11; Optional Protocol to the UN
Convention Against Torture (2006), art. 1; UN Body of Principles for the
Protection of All Persons Under Any Form of Detention or Imprisonment
(1988) Principle 29, art. 1. See also: Amnesty International:
Migration-related detention: A Research Guide on human rights standards
relevant to the detention of migrants, asylum-seekers and refugees,
November 2007; UNHCR Selected Documents Relating To Detention, Division
of International Protection Services, February, 2009.
[11] Report of the Working Group on Arbitrary Detention to the Human
Rights Council, February 2009, D.65, page 23
[12] Report of the Working Group on Arbitrary Detention to the Human
Rights Council, February 2009, D.67, page 23
[13]
http://idc.rfbf.com.au/wp-content/uploads/2009/05/childrenpositionpape.pdf
(includes references to Hungarian law introduced to prohibit the
immigration detention of children; and changes to the Australian
Migration Act in 2005 in which a child can only be detained in
immigration detention as a matter of last resort);
http://idc.rfbf.com.au/wp-content/uploads/2009/06/asylumseekersinsweden.doc
(includes reference to Swedish law that a child not be detained for
longer than 3 days; and the use of detention as a last resort)
[14] http://www.apt.ch/content/view/40/82/lang,en/ (includes references
to States that have ratified OPCAT);
http://www.apt.ch/content/view/138/152/lang,en/ (Includes references to
States that have introduced National Preventative Mechanisms)
[15]
http://www.detention-in-europe.org/content/view/12/39/index.php?Itemid=137
<http://www.detention-in-europe.org/content/view/12/39/index.php?Itemid=137&
id=228&option=com_content&task=view>
&id=228&option=com_content&task=view (Includes reference to Belgian
policy change to pilot alternatives to the detention of children and
fammilies); Fields, Ophelia, with assistance of Alice Edwards,
Alternatives to Detention of Asylum Seekers and Refugees, UNHCR Legal
and Protection Policy Research Series, April 2006, available at:
http://www.unhcr.org/4474140a2.pdf; Mitchell, Grant, Case Management as
an alternative to immigration detention- The Australian Experience,
International Detention Coalition, June 2009, (Includes reference to the
development of community-based alternatives in Australia) available at:
http://idc.rfbf.com.au/idc-report-case-management-as-an-alternative-to-deten
tion-the-australian-experience/
[16] Mitchell, Grant, Case Management as an alternative to immigration
detention-The Australian Experience, International Detention Coalition,
June 2009.
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