Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 175
CHAPTER 4: MIGRANTS IN DETENTION
Under international human rights law, detention of asylum seekers or
undocumented migrants, either on entry to the country or pending deportation,
must not be arbitrary and must be carried out pursuant to a
legal basis. 623 International standards establish that, in immigration control,
detention should be the exception rather than the rule, and should
be a measure of last resort, 624 to be imposed only where other less restrictive
alternatives, such as reporting requirements or restrictions on
residence, are not feasible in the individual case. European Convention
standards are in some respects less exacting, however, and have been
held to permit short-term detention for purposes of immigration control
without individualised consideration of alternative measures. 625
This Chapter explains how international human rights standards apply
to detention for the purposes of immigration control, increasingly used
by government as a means of both processing entrants to the country
and of facilitating deportations. It assesses when individuals will be considered
by international law to be deprived of their liberty; justification
for detention in accordance with principles of necessity, proportionality,
and protection against arbitrary conduct; procedural safeguards, in
particular judicial review of detention and reparation for unjustified detention.
It also considers standards on the treatment of detainees and
conditions of detention, and the implications of overcrowded or unsuitable
conditions for detainees, increasingly a feature of over-burdened
immigration detention systems in many countries.
I. The nature of “detention” 626
Whether individuals are in fact deprived of their liberty in a way that
engages protection of Article 9 ICCPR, Article 5 ECHR, Article 6 ACHPR,
623 Article 9 ICCPR, Article 5 ECHR, Article 6 ACHPR, Article 7 ACHR, Articles I and XXV ADRDM,
Article 14 ArCHR. Further information can be found in CMW, General Comment No. 2, op. cit.,
fn. 2, paras. 23–48. As the General Comment mostly reiterates or essentially affirms the
other international jurisprudence described in this Guide, we will not refer to it extensively.
624 UN Working Group on Arbitrary Detention (WGAD), Annual Report 2008, UN Doc.
A/HRC/10/21, 16 February 2009, paras. 67 and 82; European Guidelines on accelerated
asylum procedures, CMCE, op. cit., fn. 119, principle XI.1. See also, Conclusion No. 7,
UNHCR, op. cit., fn. 180, para. e: “an expulsion order should only be combined with custody
or detention if absolutely necessary for reasons of national security or public order and that
such custody or detention should not be unduly prolonged”. See also, Conclusion No. 44
(XXXVII) Detention of Refugees and Asylum-Seekers, ExCom, UNHCR, 37 th Session, 1986,
para. B; Concluding Observations on Bahamas, CERD, UN Doc. CERD/C/64/CO/1, 28 April
2004, para. 17; Yvon Neptune v. Haiti, IACtHR, Series C No. 180, Judgment of 6 May 2008,
para. 90; Álvarez and Iñiguez v. Ecuador, IACtHR, Series C No. 170, Judgment of 21 November
2007, para. 53; Vélez Loor v. Panama, IACtHR, op. cit., fn. 536, paras. 116, 166–171.
625 Saadi v. United Kingdom, ECtHR, GC, Application No. 13229/03, Judgment of 29 January
2008, paras. 70–74.
626 The term “detention” will be used throughout the Guide as a shorthand for “deprivation of liberty”.