Migration-Related Detention and International Law
Treaties and Protocols
A number of international treaties and protocols contain provisions that can be relevant to migration-related detention. Provisions contained in treaties are binding on states parties. In addition, many treaties have bodies or organs that are charged with monitoring their application, including committees which, through their findings on individual cases or country situations, clarify the content of international obligations by expressing concern and making recommendations to governments. Relevant treaties and protocols include:
- Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967)
- Vienna Convention on Consular Relations (1963)
- International Convention on the Elimination of All Forms of Racial Discrimination (1965)
- International Covenant on Civil and Political Rights (1966)
- Convention on the Elimination of All Forms of Discrimination against Women (1979)
- Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) and the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (2002)
- Convention on the Rights of the Child (1989) and the Optional Protocol to the Convention on the Rights on the Sale of Children, Child Prostitution, and Child Pornography (2000)
- International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
- Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000)
- Protocol against the Smuggling of Migrants by Land, Sea, and Air , supplementing the United Nations Convention against Transnational Organized Crime (2000)
Convention Relating to the Status of Refugees (1951) and the Protocol Relating to the Status of Refugees (1967)
The Convention Relating to the Status of Refugees, also referred to as the UN Refugee Convention, was adopted in the wake of World War II initially to aid the repatriation and resettlement of people displaced by the war. The convention consolidates previous norms relating to refugees, contains a definition of who refugees are, and describes the basic obligations of states regarding the treatment of refugees. It defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.”
The Protocol relating to the Status of Refugees removed restrictions present in the Refugee Convention at the moment of drafting, eliminating from the definition of refugee the condition that such persons must have suffered persecution as a result of “events occurring before 1 January 1951” and removing the Convention’s geographic limitations.
A key obligation of states, as spelled out in the treaty, is the principle of non-refoulement, which prohibits the expulsion or return of refugees to territories where their lives or freedom would be threatened because of their race, religion, nationality, or membership of a particular social group or political opinion. The UN High Commissioner for Refugees (UNHCR) has affirmed that the principle of non-refoulement constitutes a norm of customary international law and is thus obligatory for all states (UNHCR 1994).
Article 31 of the Refugee Convention established that no penalties will be imposed “on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened . . . enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence” (UN Refugee Convention 1951, Art. 31.1).
Article 31 also states that restrictions on the movement of refugees shall be limited to only those that “are necessary,” and that “such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country” (UN Refugee Convention 1951, Art. 31.2).
In February 1999, UNHCR published the “Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,” which reaffirmed an earlier conclusion of UNHCR’s Executive Committee that the detention of asylum seekers should be an exceptional measure (UNHCR Executive Committee 1986).
According to the Revised Guidelines, “Consistent with this Article , detention should only be resorted to in cases of necessity. The detention of asylum-seekers who come ‘directly’ in an irregular manner should, therefore, not be automatic, or unduly prolonged” (UNHCR Executive Committee 1986).
The “exceptional grounds” for detaining an asylum seeker, according to Guideline 3, are limited to the following: 1) To verify a person’s identity; 2) To determine the elements on which the claim for refugee status or asylum are based; 3) In cases where asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State, in which they intend to claim asylum; 4) To protect national security or public order (UNHCR Executive Committee 1986).
Additionally, the Revised Guidelines outline procedural safeguards for detention, including the right to legal counsel and where possible free legal assistance, the right to have the detention decision subjected to automatic independent review, and the right to challenge the necessity of the detention (Guideline 5). The guidelines also address the detention of persons under the age of 18; the detention of vulnerable persons, women, and stateless persons; and conditions of detention (UNHCR Executive Committee 1986).
The Vienna Convention on Consular Relations largely codified existing norms and practices of states regarding consular relations, in particular outlining legal rights and duties of states concerning the establishment and conduct of consular relations and the privileges and immunities enjoyed by consular officers and offices.
According to the Vienna Convention, arresting authorities have an obligation to advise the person arrested or detained in any manner of his or her rights of access to a consular representative and, if specifically requested by the detainee, to make arrangements for such access (Art. 36.1 (b)).
The Vienna Convention also determines that “consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation” (Art. 36.1(c)).
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) defines racial discrimination as “any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life” (ICERD 1965)
Article 5 of the ICERD contains the obligation that states parties prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social, and cultural rights. It also stipulates, among other rights, the right to security of person and protection by the state against violence or bodily harm (ICERD 1965, Art. 5(b)); and the obligation to provide protection and remedies, through the courts and other state institutions, against any acts of racial discrimination (ICERD 1965, Art. 6). Article 6 also stipulates the right to seek from such tribunals reparation or satisfaction for any damage suffered as a result of discrimination.
In its General Comment on discrimination against non-citizens, the Committee on the Elimination of Racial Discrimination (CERD) declared that states should “Ensure the security of non-citizens, in particular with regard to arbitrary detention, as well as ensure that conditions in centres for refugees and asylum-seekers meet international standards” (CERD 2004, para. 19).
Moreover, CERD has, in its examination of reports by states parties on the implementation of their obligations under the convention, addressed a number of issues relevant to non-citizens in detention, including trafficking and the detention of non-citizens (see, for example, CERD’s concluding observations on South Africa regarding allegations of ill-treatment of undocumented migrants in detention (CERD 2006, para. 23)).
The International Covenant on Civil and Political Rights (ICCPR) details and expands some of the general rights enumerated in the Universal Declaration of Human Rights (1948).
Among the most important aspects of the covenant as it relates to the detention of non-citizens is its Article 9, which establishes that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established in law” (ICCPR 1966, Art. 9.1). The same article stipulates that “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful” (ICCPR 1966, Art. 9.4).
In its General Comment No. 8, the Human Rights Committee affirmed that the provisions of Article 9 that do not exclusively address persons involved in criminal procedures, and in particular the right to a court review provided for in article 9.4, are applicable to all types of deprivations of liberty by arrest or detention, including in cases of immigration control (Human Rights Committee 1982, para. 1).
With regard to Article 9.1, the Human Rights Committee has found that “there is no basis for the … claim that it is per se arbitrary to detain individuals requesting asylum” ( A. v. Australia 1997, para. 9.3). On the other hand, the committee has considered, in the context of administrative detention, that any decisions to keep a person in detention should be open to “periodical review” so as to “reassess the necessity of detention” and that detention “should not continue beyond the period for which a State Party can provide appropriate justification” ( Shafiq v Australia 2006, para. 7.2; A. v. Australia , 1997, para. 9.4; Bakhtiyari v. Australia 2003, para. 9.2).
The Human Rights Committee has specified that when considered together with illegal entry, certain factors—such as the risk of flight or lack of cooperation—may justify detention for a period of time but that “Without such factors detention may be considered arbitrary, even if entry was illegal” ( A. v. Australia 1997, para. 9.4). Further, according to the committee, states should show that “there were no less invasive means of achieving the same ends” ( C v Australia 2002, para. 8.2; Shams and others v Australia 2007, para. 7.2).
According to the Human Rights Committee, “court review of the lawfulness of detention . . . which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive . . . is that such review is, in its effects, real and not merely formal. By stipulating that the court must have the power to order release ‘if the detention is not lawful,’ [the Covenant] . . . requires that the court be empowered to order release, if the detention is incompatible with the requirements in article 9, paragraph 1, or in other provisions of the Covenant” ( A. v. Australia 1997, para. 9.5; Shams and others v Australia 2007, para. 7.3).
Articles 10, 12, and 13 of the ICCPR are also relevant to administrative detention situations. Article 10 establishes that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person” (ICCPR 1966, Art. 10.1).
Article 12 protects freedom of movement. It provides: “1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own” (ICCPR 1966, Art. 12). In one case, the Human Rights Committee found that a person was “lawfully in the territory” of a state party after an expulsion order had been issued as it had not been enforced ( Celepli v. Sweden 1994, para. 9.2).
According to the Human Rights Committee, “As the scope of article 12, paragraph 2, is not restricted to persons lawfully within the territory of a State, an alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State” (Human Rights Committee 1999, para. 8).
Article 13 of the ICCPR determines that “An alien lawfully in the territory of a State Party to the present Covenant may be expelled there from only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority” (ICCPR 1966, Art. 13).
In its examination of reports submitted by states parties regarding their implementation of obligations under the ICCPR, the Human Rights Committee has made a number of recommendations on issues relating to the detention of non-citizens in specific countries, including inter alia on the conditions of detention, the possibility of lodging complaints regarding allegations of ill-treatment, and the detention of asylum seekers and victims of trafficking. For an example of the committee’s comments and recommendations on conditions and duration of detention of persons detained pending immigration procedures. (Human Rights Committee 1998, para.19). For an example of the committee’s recommendations on allegations of lack of adequate opportunity to apply for asylum and conditions of detention for non-citizens (in this case, on Italy ‘s Lampedusa island), see Human Rights Committee 2006, para. 15.
Sometimes referred to as an “international bill of rights for women,” theConvention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines discrimination against women as “any distinction, exclusion, or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil, or any other field” (CEDAW 1979, Art. 1).
Article 6 of the CEDAW stipulates that “States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women” (CEDAW 1979, Art. 6). In its 2006 recommendations to Malaysia, the Committee on the Elimination of Discrimination against Women stated that the country should “ensure that trafficked women and girls are not punished for violations of immigration laws and have adequate support to be in a position to provide testimony against their traffickers” (Committee on the Elimination of Discrimination against Women 2006, para 24).
Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) and the Optional Protocol to the Convention against Torture (2002)
According to Article 1 of the Convention against Torture (CAT), “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Additionally, Article 16 establishes the obligation for all states parties to prevent the occurrence of “acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
Regarding the rights of non-citizens, Article 3 establishes that “No State Party shall expel, return (‘refouler’), or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture” (CAT 1984, Art. 3).
The convention also contains a number of provisions that address norms and practices in detention situations that can have relevance to non-citizens deprived of their liberty. Among these are Article 10, which establishes that “Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment”; and Article 11, which states that states parties “shall keep under systematic review interrogation rules, instructions, methods, and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention, or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture” (CAT 1984, Arts. 10, 11).
In its examination of reports submitted by states parties on the implementation of their treaty obligations, the Committee against Torture has on a number of occasions made recommendations on issues linked to the detention of non-citizens. In its May 2007 concluding observations to Japan, the committee addressed non-refoulement, the detention of migrants, reciprocity rules for foreigners seeking to claim redress for issues linked to detention, and trafficking (Committee Against Torture 2007a, paras. 14, 23, and 25). Also in May 2007, the Committee against Torture made recommendations on expulsion and the conditions of detention of asylum seekers in the Ukraine (Committee Against Torture 2007b, para. 20). In its November 2006 observations of France , the committee addressed the summary procedures for consideration of asylum applications filed in detention centres or at borders and the lack of suspensive effect on the deportation of certain appeals (Committee Against Torture 2006, paras. 6 and 7).
The Optional Protocol to the Convention Against Torture (OPCAT) seeks to prevent torture and ill-treatment through the establishment of a system of regular visits by independent international and national bodies to places of detention. At the international level, the OPCAT created the Sub-Committee on Prevention of Torture (OPCAT 2002, Art. 2). At the national level, states parties are obliged to create or designate “National Preventive Mechanisms,” generally within one year of ratification of the OPCAT (OPCAT 2002, Art. 17). Visits by the sub-committee and national mechanisms are to be carried out regularly. All places of detention under the jurisdiction and control of states parties are subject to visits, including sites where non-citizens are held in administrative detention.
Convention on the Rights of the Child (1989) and the Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography (2000)
The Convention on the Rights of the Child (CRC) addresses several issues that can be relevant to the detention of non-citizen minors. It requires states parties to ensure that children are detained only as a measure of last resort and for the shortest possible period of time (CRC 1989, Art. 37(b)); and that “in all actions concerning children” states make the best interests of the child the primary consideration in their actions (CRC 1989, Art. 3).
Article 37(d) of the convention states that “Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent, and impartial authority, and to a prompt decision on any such action.” The CRC also establishes that every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances (CRC 1989, Art. 37(c)). Additionally, the convention stipulates that measures be taken to ensure that “a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present convention and in other international human rights or humanitarian instruments to which the said states are parties” (CRC 1989, Art 22.1).
In its General Comment No. 6, on the “Treatment of Unaccompanied and Separated Children outside Their Country of Origin,” the Committee on the Rights of the Child elaborated on the principle that in cases of unaccompanied children, detention should always be a measure of last resort. According to the committee, “Where detention is exceptionally justified for other reasons, it shall be conducted in accordance with article 37 (b) of the Convention that requires detention to conform to the law of the relevant country and only to be used as a measure of last resort and for the shortest appropriate period of time. In consequence, all efforts, including acceleration of relevant processes, should be made to allow for the immediate release of unaccompanied or separated children from detention and their placement in other forms of appropriate accommodation” (Committee on the Rights of the Child 2005a, paras. 62). The committee did not specify which “forms of appropriate accommodation” for unaccompanied children it regarded as non-detention situations.
Also in its General Comment No. 6, the Committee on the Rights of the Child described the required conditions of detention and the rights of children placed in detention (Committee on the Rights of the Child 2005a, paras. 61-63).
The Committee on the Rights of the Child has, in its examination of reports submitted by states parties regarding implementation of their treaty obligations, made recommendations on the issue of the administrative detention of child non-citizens. In its 2005 recommendations to Australia , for example, the Committee addressed the automatic detention of children irregularly in the country, legal safeguards made available to them, and the conditions of their detention (Committee on the Rights of the Child, Concluding Observations: Australia , 30 September 2005b, paras. 62-64).
The Optional Protocol to the Convention on the Rights of the Child (OPSC) contains provisions to ensure the criminalization, investigation, and prosecution of the sale of children, child prostitution, and child pornography. It also provides for the protection of child victims (OPSC 2000).
In its examination of reports on states parties’ implementation of their obligations under the OPSC, the Committee on the Rights of the Child has made recommendations on the detention of non-citizen children. In its October 2007 Concluding Observations to France, for example, the committee expressed concern over how asylum seekers and unaccompanied children are treated when held in waiting zones of airports. It recommended that France implement a number of procedural safeguards and that it ensure that “children in need of international protection and who are at risk of being re-trafficked are not returned to the country where this danger exists” (Committee on the Rights of the Child 2007, paras. 6-7 & 24-25).
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) states that “Migrant Workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived of their liberty except on such grounds and in accordance with such procedures as are established by law” (ICRMW 1990, Art.16.4).
The ICRMW provides that migrant workers and members of their families who are under any form of detention must be able to communicate with their consular authorities (ICRMW 1990, Art. 16.7) and “be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used” (ICRMW 1990, Art. 16.8).
The ICRMW also establishes that migrant workers and members of their families who are deprived of their liberty “shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity” (ICRMW 1990, Art. 17.1); that persons held “for violation of provisions relating to migration shall be held, in so far as practicable, separately from convicted persons or persons detained pending trial” (ICRMW 1990, Art. 17.3); and that “If a migrant worker or a member of his or her family is detained for the purpose of verifying any infraction of provisions related to migration, he or she shall not bear any costs arising therefrom” (ICRMW 1990, Art. 17.8).
The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW), in its examination of reports by states parties on the implementation of their treaty obligations, has made recommendations on the situation of non-citizens held in administrative detention. For instance, the CMW’s November 2006 recommendations to Mexico regarding, inter alia, conditions of detention of migrant holding centres, addressed the possibility of lodging complaints regarding ill-treatment and notification of consular authorities (Committee on Migrant Workers 2006, paras. 27-28).
Protocol to Prevent, Suppress, and Punish Trafficking in Persons, Especially Women and Children supplementing the United Nations Convention against Transnational Organized Crime (2000)
The Trafficking in Persons Protocol, a protocol to the 2000 Convention against Transnational Organized Crime (also known as the Palermo Convention), has among its aims combating trafficking in persons, which the protocol defines as “the recruitment, transportation, transfer, harbouring, or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power, or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs ” (Trafficking in Persons Protocol 2000, Art. 3(a)).
The protocol provides that states parties “consider implementing measures to provide for the physical, psychological, and social recovery of victims of trafficking in persons . . . in particular, the provision of: (a) Appropriate housing; (b) Counselling and information, in particular as regards their legal rights, in a language that the victims of trafficking in persons can understand; (c) Medical, psychological, and material assistance; and (d) Employment, educational, and training opportunities (Trafficking in Persons Protocol 2000, Art. 6.3).
The protocol also provides that states parties “consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in its territory, temporarily or permanently, in appropriate cases” (Trafficking in Persons Protocol 2000, Art. 7.1).
Complementing the protocol is the “Recommended Principles and Guidelines on Human Rights and Human Trafficking” (2002), which was compiled by the Office of the High Commissioner for Human Rights (OHCHR) to provide practical policy guidance for the protection of trafficked persons and the prevention of trafficking.
The Recommended Principles and Guidelines provide that states should consider “Ensuring that trafficked persons are not, in any circumstances, held in immigration detention or other forms of custody” (OHCHR 2002, Guideline 2, para. 6). They urge States to consider “Ensuring that the legislation prevents trafficked persons from being prosecuted, detained, or punished for the illegality of their entry or residence or for the activities they are involved in as a direct consequence of their situation as trafficked persons” (OHCHR 2002, Guideline 4, para. 5). They also provide that states (as well as intergovernmental organizations and non-governmental organizations, when applicable) should consider “Ensuring, in cooperation with non-governmental organizations, that safe and adequate shelter that meets the needs of trafficked persons is made available” and that trafficked persons “not be held in immigration detention centres, other detention facilities, or vagrant houses” (OHCHR 2002, Guideline 6, para. 1).
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime
The Protocol against the Smuggling of Migrants, which supplements the 2000
Convention against Transnational Organized Crime, contains the obligation for states parties to criminalize smuggling and related acts (Protocol Against the Smuggling of Migrants 2002, Art. 6). It also provides that migrants shall not be liable to criminal prosecution under the protocol for having been the object of smuggling (Protocol Against the Smuggling of Migrants 2002, Art. 5).
Additionally, the protocol contains an obligation for states parties to facilitate the return of smuggled persons who are their nationals and to consider the possibility of facilitating the return of permanent residents, including—when necessary—by issuing travel documents or other necessary authorizations (Protocol Against the Smuggling of Migrants 2002, Art. 18).