Contributions from the Committee on Migrant Workers for the General Comment
no. 35 of the Human Rights Committee, on " the right to freedom and personal
safety: Article 9"
Committee on the Protection of the Rights of All Migrant Workers and Members of their
Families (CMW) believes that respect, protection and guarantee of the right to freedom
of migrant persons is based on the following principles and standards:
1. Principle of exceptionality of the detention for reasons of immigration
2. Duty to adopt alternative measures to detention, in law and in practice
3. Ensure due process guarantees, implement alternative measures and use of
detention on an exceptional basis
4. In the exceptional case of resorting to detention, appropriate conditions to the
situation of migrants and their families must be ensured
5. Under no circumstances, children and adolescents will be deprived of liberty
because of migration status
6. Prohibition of detention as a criminal sanction to a violation regarding
migration - principle of non–criminalization
As described below, these principles and standards are based on the Committee's
jurisprudence, other treaty bodies, as well as other special mechanisms to protect
human rights, both from the UN and regional systems.
1) Principle of exceptionality of detention as a precautionary measure in the
context of immigration proceedings
This Committee has stated that the detention of migrants in the context of immigration
proceedings can only exist as a last resort measure, with priority given to less restrictive
alternatives, especially non-custodial sanctions1. If in criminal law, detention during a
procedure is an exceptional measure, in proceedings relating to the entry and stay of
persons in a territory, the standard of presumption in favor of liberty (favor libertatis)
must be considered even higher and should be respected more rigorously, since
immigration violations are purely administrative in nature2.
Likewise, the UN Special Rapporteur on the Human Rights of Migrants affirmed that
deprivation of liberty for reasons related to migration should never be mandatory nor
automatic. In accordance with international human rights standards it must be imposed
as a last resort, only for the shortest time possible and when a less restrictive measure
does not exist. Governments are required to provide in their national legislation a
presumption in favor of liberty, considering first alternative non-custodial measures of
freedom, evaluating every single case and choosing the less stringent or restrictive
1
Committee on Migrant Workers, General Comment No. 2 on the Rights of Migrant Workers in an Irregular
Situation and Members of their Families, CMW/C/GC/2, 28 of August of 2013, para 26.
2
IACHR, “Report on Immigration in the United States: Detention and due Process”, OEA/Ser.L/V/II. Doc. 78/10,
30/12/2010. § 38.
measure3.
This would lead to the general principle that immigration proceedings should be
governed by the freedom of the individual. If necessary, depending on the case,
alternatives to detention could be implemented. And, if a State allows detention in these
procedures it must be included explicitly in the legislation as an exceptional measure of
last resort. To be more precise, in these exceptional cases, States should be guided by
the principles and standards that are developed below (points 2-6)
2) Presumption of liberty and alternative measures to detention
The general principle governing infringements of an administrative nature is that people
should be free during the procedure. If necessary in a particular case, alternatives to
detention may apply, which seek to satisfy procedural objectives of immigration policy,
without resorting to imprisonment. The General Assembly has highlighted the success
achieved by some States in the implementation of measures that do not involve
detention of migrants, adding that it is a practice that "deserves consideration by all
States."4 In this regard, the Special Rapporteur on the rights of migrants said that "the
right to personal liberty and security requires States to consider in the first place
alternatives to deprivation of liberty of migrants that are less stringent."5 Alternatives to
imprisonment can be defined as the laws, policies or practices that allow asylum
seekers, refugees and migrants reside in the community and move freely while their
status as migrants is being resolved or are awaiting their deportation or deportation.6
The MWC, meanwhile, stressed that, in any case, the less restrictive and intrusive
measure should apply to each individual case7. This implies that States must establish
by law, and ensure in practice, a number of alternatives to detention in the context of
migration processes, since they are less burdensome and constitute an appropriate and
consistent response to the respect for human rights of migrants8. As noted by the
Special Rapporteur on the Rights of Migrants, the obligation to consider alternatives to
detention (non-custodial freedom) before resorting to privation of liberty must be
established by law. Detailed guidelines and appropriate training for judges and other
officials, such as police, border guards and immigration officials, in order to ensure
consistent application of non-custodial measures freedom instead of detention, should
be provided9.
3) Obligation to ensure due process
If the competent authority decides to apply an alternative to a detention measure, and
3
Special Rapporteur on the human rights of migrants, A/HRC/20/24, 2nd of April 2012, para 68
Resolution 20 December 2012, A/RES/67/172, “Protection of migrants”, article 4.d
5
Special Rapporteur on the human rights of migrants, 2012, para 50
6
Special Rapporteur on the human rights of migrants, 2012, para 56
7
MWC, General Comment No.2, quoted, para 26
8
Human Rights Committee, 2012, Report of the Special Rapporteur on the human rights of migrants, A/HRC/20/24,
2nd of April 2012 §48-50
9
Special Rapporteur on the human rights of migrants, 2012, para 53
4
especially when restoring to detention, all guarantees of due process must be ensured,
irrespectively of nationality, immigration status or residence10, or any other status,
whenever it is an administrative or judicial procedure11. This Committee and the Special
Rapporteur on Human Rights of Migrants and other international mechanisms of human
rights protection have emphasized the need to ensure these guarantees to migrants
effectively.
First, any decision on the introduction of an alternative measure to freedom (e.g. the
periodic comparison of the person before the authority) must be duly substantiated by
the competent authority, highlighting the necessity and proportionality of the measure in
the case. This duty of substantiation must be carefully respected if restoring to the most
severe measure, detention. In this case, it must be justified why it is not applicable to
any of the alternatives provided for in legislation.
Secondly, these procedures must meet, among others, the following guarantees: the
arrested person must be informed in a language in which the person understands the
reasons for the arrest, and be immediately informed of their rights verbally12 as well as in
writing13. It also implies that the person should be put into immediate communication
with an attorney and provided with free of charge legal aid14; they should be given the
services of an interpreter or translator, have the means to contact their families, as well
as the resources to challenge the detention through an effective remedy15. Moreover,
their right to consular assistance must also be communicated, which comprises: (i) the
right to be notified of their rights under the Vienna Convention; (ii) the right of effective
access to communicate with a consular officer, and (iii) the right to the same
assistance.16
10
IACHR, OC-18/03, quoted, § 124-127; Inter-American Commission of Human Rights, cases: Andrea Mortlock
(United States), Report No. 63/08, Case No. 12.534, July 25 2008, § 83; Juan Raul Garza C. United States, Report Nº
52/01, April 4 2001, § 88-89; Report No. 56/06 (admissibility), Case No. 12.562, July 20 2006 § 51.
11
Inter-American Court of Human Rights, case Nadege Dorzema c. Dominican Republic, para 157; case Pacheco
Tineo c. Bolivia, para 130
12
Working Group on Arbitrary Detention, deliberation No.5 principles 1 and 8; Principles and Best Practices on the
Protection of Persons Deprived of Liberty, principle 10
13
International Covenant on Civil and Political Rights, article 9, para 2, Convention on the Protection of the Rights
of All Migrant Workers and Members of their Families, article 16, § 5. Committee on Migrant Workers, General
Comment No. 2, quoted, para 28; Principles and Best Practices on the Protection of Persons Deprived of Liberty,
principle 13. Inter-American Court of Human Rights, case Pacheco Tineo, quoted, para 133
14
International Law Commission, Expulsion of Aliens, text of the projects of articles approved provisionally in first
reading for the Drafting Committee, 64th Session period, UN DOC A/CN4/L.797, 24 de mayo de 2012, articles 19
and 26. Inter-American Court of Human Rights, case Nadege Dorzema, quoted, para 163
15
Human Rights Committee, Report of the Special Rapporteur on the human rights of migrant, A/HRC/20/24, 2nd
April 2012 §15-20; Committee on Migrant Workers, General Comment No. 2, quoted, para 41. At a regional level,
Inter-American Court of Human Rights, Case Vélez Loor v Panamá, Sentence of 23 rd November 2010, §107; Case
Nadege Dorzema and others v Dominican Republic, Sentence of 24 October 2012. §137; Case Pacheco Tineo,
quoted, para 133.
16
Committee on Migrant Workers, General Comment No. 2, quoted, para 30; Principles and Best Practices on the
Protection of Persons Deprived of Liberty, principle 16.2; Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families, art. 16; the Special Rapporteur on the human rights of migrant, 2012, para
20; Committee on Migrant Workers, General Comment No. 2, quoted, para 31. In the context of the Inter-America
see: Inter-American Court of Human Rights, Consultative opinion n. 16, quoted, para 106; case Velez Loor, quoted,
para 153 y Inter-American Court of Human Rights, case Nadege Dorzema, quoted, para 166.
4) Adequate conditions of detention
Besides the absence of substantive and procedural guarantees, the exceptional migrant
detention may be arbitrary if its not implemented meeting certain conditions. So on the
one hand, the arrest must be made in the shortest possible time17, it shouldn’t be
indefinite under no circumstances18, and the law must fix a maximum period of detention,
which must also meet the criteria of reasonableness, necessity and proportionality.
Furthermore, as stated in the Convention on the Rights of All Migrant Workers, migrants
should not be detained in places for the detention of persons accused or convicted of
criminal offenses.
Another important aspect has to do with conditions in the places where migrants can be
exceptionally detained. First, since the nature it is not a correctional, and in the case of
persons seeking to enter and / or remain (i.e., live, work, seek protection) in a territory,
the conditions on daily activities or disciplinary rules, among others, should be
substantially different. In this regard, sanctions mechanism and other procedures related
to punitive and social reintegration aspects of criminal policy should be banned.
Secondly, these centers must ensure adequate standards of various rights at stake
including: the right to adequate food, the right quality and timely health care, the right to
information, to communicate with family and visits to recreational activities ,
communicate regularly with an attorney, to practice their religion in appropriate
conditions.
5 ) Principle of non- arrest of migrants child
The Committee on the Rights of the Child has stated that Article 37.2 of the Convention
on the Rights of the Child, which provides the detention of children as a last resort, could
only be applied in cases of children and adolescents in conflict with the law. Therefore,
immigration sanctions are not applicable for children and adolescents who may incur in
irregular situations. In such cases, the Committee has stressed that the principle of no
detention should prevail19. In recent years, it has been repeatedly stated that the
detention of child migrants cannot be, in any case, in line with the principle of best
interests of the child20. In this sense, there is a consensus that children/unaccompanied
or separated children from their families should not be deprived of liberty.21
17
Special Rapporteur on the human rights of migrant, 2012, para 21
Special Rapporteur on the human rights of migrant, 2012, para 23
19
Committee on the Rights of the child of the United Nations, “Background Paper “,prepared for the Day of General
Discussion “The Rights of All Children in the Context of International Migration”, on 28/09/2012.
20
Committee on the Rights of the child of the United Nations, “Background Paper “, quoted. Report of the Special
Rapporteur on the human rights of migrant, 2009; OHCHR, Study of the Office of the United Nations High
Commissioner for Human Rights on challenges and best practices in the implementation of the international
framework for the protection of the rights of the child in the context of migration, A/HRC/15/29, 5th July 2010.
UNICEF, “Observación Escrita de UNICEF sobre Niñez Migrante en América Latina y el Caribe”, in the
framework of the Consultative Opinion about migrant children presented by Argentina, Brazil, Paraguay y Uruguay
before the Inter-American Court of Human Rights, 2013.
21
Committee on the Rights of the Child, General Comment No. 6, para 61; Special Rapporteur on the human rights
of migrant, 2012, para 41; Committee on Migrant Workers, General Comment No. 2, quoted, para 44
18
Families with children should also not be deprived of liberty22, and cannot be justified on
the grounds of preserving the family unit23. On the contrary, cases of children and
adolescents with their parents or guardians, the right to preservation of the family unit
must always prevail together with the right to personal liberty of the whole family in front
of the powers of a State for immigration control, in order to prevent family separation24.
In the same way, the Special Rapporteur on the human rights of migrants said that "the
great use of a rights-based approach would entail the adoption of alternative measures
for the whole family; therefore, States should develop policies to accommodate the
whole family in alternative closed detention centers."25
6) Prohibition of detention as a criminal sanction on immigration violations
The situation of irregular migration in which a person can be, whether by illegal entry to
the territory or the lack or expiration of the residence permit may constitute an
administrative offense and not a crime. Therefore, it cannot lead to a punitive response
from the States, as noted by this Committee and other international human rights
mechanisms26. Specifically, it has been established that the detention of persons
because of the breach of immigration laws should never be punitive27. Moreover, the
detention of migrants used as a mechanism of migration control, is a disproportionate,
arbitrary28, inadequate and ineffective29 to respond to the growing phenomenon of
irregular migration30, it criminalizes irregular migration and produces a serious impact on
22
Committee on Migrant Workers, General Comment No. 2, quoted, para 44
OHCHR, Study of the Office of the United Nations High Commissioner for Human Rights on challenges and best
practices in the implementation of the international framework for the protection of the rights of the child in the
context of migration, quoted, § 24. Also, European Court of Human Rights, Popov v. France, 39472/07 and 39474/07,
19 January 2012.
24
UNICEF, “Children in the Context of Migration and the Right to Family Life”, presented before the CRC in the
framework of the Days of General Discussion “The Rights of All Children in the Context of International Migration”,
held in Geneva on 28/09/2012.
25
Special Rapporteur on the human rights of migrant, 2009, para 87
26
MWC, Concluding Observations: México, CMW/C/MEX/CO/1, of 8 December 2006, paras 14-15; MWC,
General Comment No. 2, quoted, para 24; Special Rapporteur on the human rights of migrant, E/CN.4/2003/85, § 43
and 73. See also, A/HRC/7/12, 25 February 2008, §, 15, 19, 42 and 43; Special Rapporteur on the human rights of
migrant, A/HRC/17/33, 2011, para 19. At a regional level, see European Court of Justice (ECO), case “El Dridi vs.
Italia”, C-61/11, sentence of 28/04/2011 §10.4.
27
Special Rapporteur on the human rights of migrant workers, Report 2012; Inter-American Court of Human Rights,
case Velez Loor c. Panama, quoted, para 171; case Pacheco Tineo c. Bolivia, quoted, para 131.
28
HRC, “Article 9(1) ICCPR is applied to all forms of deprivation of liberty, inclusive on immigration” General
Comment Nº 8, “ICCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons),” 30 June
1982 §1; Council of Human Rights Special Rapporteur on the human rights of migrant, Report 2012, François
Crépeau A/HRC/20/24, 2 April 2012, §1-2. In IACHR, “Report on Immigration in the United States: Detention and
due Process”, OEA/Ser.L/V/II. Doc. 78/10, 30/12/2010. § 232.
29
Committee of Human Rights, 2012, Special Rapporteur on the human rights of migrant, A/HRC/20/24, 2 April
2012 §8; Working Group on Arbitrary Detention, A/HRC/7/4 10 January 2008 §53
30
MWC, Concluding Observations Morocco, CMW/C/MAR/CO/1, 8 October 2013 §26; IACHR “Case Vélez Loor
vs. Panamá”, sentence on 23/11/2010, § 251
23
the performance of rights of migrants31.
The Working Group on Arbitrary Detention has emphasized that “criminalizing the
irregular entry pathways in the territory of a State exceeds the legitimate interest of
States to control and regulate illegal immigration and leads to unnecessary arrests32."
Likewise has ruled the Inter-American Court of Human Rights and the Court of Justice of
the European Communities33. These practices violate the principle of non-discrimination
to promote xenophobia and racism, and legitimize practices of exclusion and
discrimination against a particular social group, contributing to an incorrect association
between irregular migration and crime34.
31
The General Assembly as stated the preoccupation for measures and practices that may restrict the human rights
and fundamental freedoms of migrants, and reaffirms that, when exercising their sovereign right to enact and
implement migratory and border security measures”
32
Council of Human Rights Special Rapporteur on the human rights of migrant, Report 2012, François Crépeau
A/HRC/20/24, 2 April 2012, § 13. IACHR, Advisory Opinion OC-18, Juridical Condition and Rights of the
Undocumented Migrants, 17 September 2003. §100 y 101.
33
ECJ, El Dridi vs. Italia, quoted. IACHR, Velez Loor vs. Panamá, quoted.
34
MWC, General Comment Nº 2, quoted, §18–20; HRC, case “Williams Lecraft vs. Spain”, communication
1493/2006, decision of 17/08/2009; Special Rapporteur on the human rights of migrants, Gabriela Rodríguez Pizarro,
E/CN.4/2003/85, 3 December 2002 y 10 November 2003: CERD, General Comment No. 30: Discrimination Against
Non-Citizen, 1 October 2004, §19.