International Standards

Arrest and Detention: Methods of Last Resort

Regulating Deportations and Expulsions

Protecting People on the Move

International human rights standards uphold the rights of people on the move. At the most fundamental level, all people have the right to life, liberty and security of person. There are nine core international human rights treaties: two key covenants protecting civil, political economic, social and cultural rights; five conventions which provide protections for specific groups of people – for children, women, migrants, people with disabilities and against racial discrimination; and two providing against torture and enforced disappearances. All UN Member States have ratified at least one core international human rights treaty, and 80 percent have ratified four or more. These treaties constitute legal obligations which protect all people and to which ratifying states must ensure their national law and policy conform.

The central principles of the core human rights documents are non-discriminatory and equality. Human rights are universal and thus are not linked to citizenship. While there is room for states to make some distinctions between citizens and non-citizens in national law, any denial of rights must serve a legitimate state objective and be proportionate. In practice, interpretation of the human rights documents has varied in different states. This leaves migrants vulnerable and subject to the discretion of national governments and swings in political mood.

The Right to Move

The right of all people to move freely is well established in international law. The Universal Declaration of Human Rights, states that “everyone has the right to leave any country, including his own, and to return to his country” (Article 12.2). A number of the core human rights treatiesfurther strengthen this principle although the ASEAN Declaration on Migrant Workers is a weak echo of these standards. Supporting the right to freedom of movement, no state may expel its nationals, and all States are expected to readmit their citizens.

Freedom of movement is, however, challenged by contemporary concepts of the nation state, under which population flows are seen as a threat to national sovereignty. States can regulate the presence of non-citizens on their territory, although international law curtails state exercise of this power, particularly when there would be an infringement on other human rights, as in the case of refugees. Reflecting contemporary practicalities, the Human Rights Committee has stated that “since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents”. (General Comment No. 27: Freedom of movement (Article 12), 02/11/99)

Arrest and Detention: Methods of Last Resort

The rights to liberty and to freedom from arbitrary detention are fundamental human rights guaranteed to all people, whether migrants or citizens of a state. The International Covenant on Civil and Political Rights (ICCPR) holds that “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention” (Article. 9.1). Use of detention is to be strictly limited where the immigration status of non-citizens is under question. For example, the Convention on the Rights of the Child (CRC) requires states to ensure that children are detained only as a measure of last resort and for the shortest period of time possible (Article. 37.b). Similarly, the 1951 Refugee Convention (“Refugee Convention”) holds that refugees are not to be penalised for irregular entry or presence in a receiving country and restrictions on their movement must be limited and only applied until the persons migration status is regularised or they can be hosted by another country (Article. 31). Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers issued by the UNHCR in 1999 underscore that asylum seekers should only be detained in exceptional cases.

Migrant workers around the world face arrest on grounds such as illegal entry, use of false documents, leaving of their residence without authorisation, irregular stay, and breaching or overstaying their conditions of stay. While the arrests may be within the law, the motivation behind them is often unrelated to any breach of immigration law. Crackdowns and arrests of migrants are used as a deterrent for potential migrants, as a means to discourage migrants from lodging complaints about violations of their labour rights, as a political show to campaign for support, or to persuade the population that the government is actively protecting national security. Governments are increasingly detaining migrants whose immigration status is questioned either as an administrative measure pending deportation or expulsion, or under criminal law for breaching immigration regulations. The UN Special Rapporteur has criticised the high degree of discretion and broad powers to detain, which are given to immigration and law enforcement officials in many countries and which can give rise to abuse. Migrants can be detained for prolonged periods, in overcrowded and unhygienic conditions, subject to arbitrary and ad hoc decisions and in practice are often denied legal assistance and access to judicial review procedures.

While there is no specific international treaty or set of guidelines relating to the arrest and detention of non-citizens, international law nonetheless provides protection. The UNHCR has developed Guidelines on the Detention of Asylum Seekers, while the Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons Under any Form of Detention or Imprisonment (Body of Principles) set standards for all forms of detention.

People can only be arrested and detained in line with national laws: the UN Human Rights Committee, which monitors compliance with the ICCPR says that “arbitrariness” does not simply mean “against the law”, but includes aspects of “inappropriateness or injustice” (A v Australia, Communication No. 560/1993). When detention does occur, all detainees are to be treated in a humane manner with respect for the inherent dignity of the human person (Body of Principles, 1). Following arrest, migrants should be housed in a manner that reflects their status, namely, they should be separated from people awaiting criminal trials and those who have been convicted (ICRMW, Article 17(1), Body of Principles, 8). Special care must be taken of vulnerable detainees, such as women, children and the sick. The 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) prohibits torture and cruel, inhuman or degrading treatment or punishment and requires states are to prevent such acts at the hands of public officials (CAT, Article 6, Body of Principles, 6). The 2002 Optional Protocol to the CAT provides for regular visits to places of detention by independent bodies, to monitor standards.

Migrants have the right to challenge the lawfulness of their detention before a court and to access the justice system of receiving states (ICRMW: Articles 9 and 17, CRC: Article 37.d). To ensure that migrants can fully benefit from access to the justice system, and to maintain contact with the outside world, following arrest, migrants have the right to access the appropriate diplomatic authorities without delay (ASEAN Declaration, Article 10; Body of Principles, 15 and ICRMW, Article 16). Detaining authorities are to provide migrants with information concerning their arrest, the options available to them and the ensuing process in a language they can understand. Migrants are entitled to interpretation services if necessary in connection with legal proceedings at no personal cost. (ICRMW, 16(5) and Body of Principles,14). These practices are rooted in the reciprocal interest of all States to safeguard their nationals abroad and have grown in importance as labour migration – both regular and irregular – has increased. Consequently, some embassies now provide a range of services to migrant workers.

At all stages, migrants are prima facie entitled to equal rights as nationals. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)maintains that all people are entitled to the full enjoyment of rights, regardless of race or origin. It provides for the right to security of person, access to courts and reparation for damages resulting from discrimination. The treaty committee notes that “any differential treatment based on citizenship or immigration status will constitute discrimination” unless the reason for differentiation is legitimate or proportionate. Importantly, detained migrants, like all other detainees, are not to bear the costs of detention relating to migration related infractions (ICRMW, Article. 17.8). Finally, migrants are not to be subject to lengthy periods of detention while their case is processed. The UN Working Group on Arbitrary Detention has adopted Deliberation No. 5 concerning the situation of immigrants and asylum seekers, recommending that a maximum period of detention should be set by law and that custody may “in no case” be prolonged or indefinite (WGAD Deliberation No. 5, 1999).

Regulating Deportations and Expulsions

Migrants are safeguarded in issues relating to deportation by three types of protection outlined in the international human rights framework: 1) substantive guarantees exist to prevent the deportation of people who would consequently face serious human rights violations; 2) procedural safeguards during the deportation itself; 3) protection regarding the method of expulsion.

The Right to Remain

Refugees and asylum seekers are guaranteed substantive protection by states under the 1951 Refugee Convention and its 1967 protocol. The treaty enshrines states’ obligation of non-refoulement (Article. 33.1), meaning refugees and asylum seekers are not to be returned to territories where their lives or freedom would be threatened on the basis of their race, religion, nationality, membership of a particular social group or political opinion. The principle of non-refoulement has become a cornerstone of international refugee law and is now considered to be part of customary international law.

Today, any person at serious risk of torture following expulsion is protected against refoulement under the 1984 Convention against Torture. This treaty holds 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, Article 3). This principle is strengthened under the 1976 ICCPR, Article 7 of which has been interpreted as prohibiting of expulsion if there is a risk of torture. In this regard, the Human Rights Committee held that “State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.” The Committee has also decided that a person should not be returned to a country where they cannot receive treatment for an illness linked to the State party’s violation of their rights. This decision could be applied to migrant workers who suffer occupational injuries or illnesses resulting from inadequate enforcement of occupational safety and health standards by the state.

International support for the principle of non-refoulement is strong. In a General Recommendation on Discrimination against Non-citizens, the Committee on the Elimination of Racial Discrimination recommended that national laws on expulsion should not discriminate against foreigners on the basis of race, colour, or ethnic or national origin, and that non-citizens should have equal access to the right to challenge expulsion orders. It reiterated that the principle of non-refoulement applies in cases where people are at risk of serious human rights abuses. Finally, reflecting on the right to family life, the Committee recommended that expulsions and deportations be avoided when this right would be disproportionately impeded.

Looking at the treatment of unaccompanied and separated children outside their country of origin, a General Comment adopted by the Committee on the Rights of the Child added weight to international consensus regarding the principle of non-refoulement. The Committee held that State parties should not return a child to a country “where there are substantial grounds for believing that there is a real risk of irreparable harm to the child”, regardless of whether the harm was inflicted by state or non-state actors. It emphasised that in assessing the risk of harm, the age and gender of the child should be taken into account, as well as the particularly serious consequences for children of inadequate food and health services. Children should not be returned to a state where there is a real risk of underage recruitment to armed services or participation in conflict, for example as a combatant or providing sexual services for the military.

Victims of human trafficking have very few enabling rights under international law, despite a broad consensus on the need to fight trafficking. Once a person has been identified as a victim of trafficking, they may be returned to their country of origin, regardless of their personal wishes. State parties to the anti-trafficking protocol are simply to “consider adopting legislative or other appropriate measures that permit victims of trafficking in persons to remain in their territory, temporarily or permanently, in appropriate cases.” In doing so, State parties shall “give appropriate consideration to humanitarian and compassionate factors” (ATP, Article 7). Return of victims of trafficking is to “be with due regard for the safety of that person and for the status of any legal proceedings related to the fact that the person is a victim of trafficking and shall preferably be voluntary” (ATP, Article 8). The OHCHR slightly expanded the right to remain in providing that the State should “ensur[e] the safe and, where possible, voluntary return of trafficked persons and explor[e] the option of residency in the country of destination or third-country resettlement in specific circumstances (e.g. to prevent reprisals or in cases where retrafficking is considered likely)” (Recommended Principles and Guidelines on Human Trafficking, Guideline 6).

Working towards a fair process

International and regional human rights instruments make almost no reference to methods of expulsion. The Council of Europe has developed Recommendations to ensure respect for human rights, safety and dignity of migrants during expulsion. However, there is no explicit tool at the UN level. The ASEAN Declaration on Migrant Workers makes no reference to the deportation of migrants, and nor do the Memoranda of Understanding (MOUs) signed between Thailand and neighbouring countries. This legislative gap leaves migrants extremely vulnerable during the deportation process and is more problematic as migrants who have already been returned to their countries of origin are unlikely to bring proceedings against those who deported them.

Nonetheless, general provisions of human rights standards should still apply. When deporting non-citizens, States are required to respect the right to life and physical integrity and should not subject any person, being expelled from the country, to cruel, inhuman or degrading treatment. The former Special Rapporteur on the human rights of migrants stated in 2004 that “the expulsion, deportation or repatriation of undocumented migrants should be carried out with respect and dignity”.

Non-citizens are guaranteed protection during the deportation process under the Migrant Workers’ Convention. Article 22 of the convention applies to all migrant workers and their families, regardless of immigration status. Migrants are to be informed of their right to the protection and assistance of the diplomatic authorities of their country of origin and assisted in the exercise of that right (ICRMW, Article 23). Documented migrant workers have stronger protection. They are not to be expelled from the state in which they work, except for reasons defined in national legislation, when considering expulsion, states must take account of humanitarian considerations and the length of residence in the country of employment. It is prohibited to expel a migrant worker or their family in order to deprive them of the rights derived from their residency and work permit (ICRMW, Article 56).

Migrant workers are guaranteed protection against arbitrary or collective expulsion (ICCPR, Article 13; ICRMW, Article 22). These two rights go hand in hand: the nature of collective expulsions typically exposes migrants to inhumane treatment and the speed at which they are carried out makes it impossible for governments to provide individual decisions on the lawfulness of expulsion. Documented migrants caught up in the net risk unlawful expulsion and there is a high risk that refugees, victims of trafficking and people at risk of torture are not identified.

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