Migrant detention must be “last resort”, UN rights group underlines in its Revised Deliberation on deprivation of
liberty of migrants
GENEVA (26 February 2018) – Placing migrants and asylum seekers in detention should be seen as a last resort to be used
only in strictly limited circumstances, the UN Working Group on Arbitrary Detention has stated in its position document
based on international law and its own jurisprudence.
The group’s intervention comes amid concern over the increasing use of detention of migrants, a worldwide practice which
has grown steadily over recent years.
“The right to personal liberty is fundamental and extends to all persons at all times and circumstances, including
migrants and asylum seekers, irrespective of their citizenship, nationality or migratory status,” emphasized the Working
Group, adding that “everyone has the right to leave any country, including his own, and return to his own country”.
The new, Revised Deliberation No. 5, reaffirms the absolute prohibition of arbitrary detention and the universal human right to seek asylum.
“The irregular entry and stay in a country by migrants should not be treated as a criminal offence,” it states.
The deliberation says that any form of administrative detention or custody for migrants must be used “as an exceptional
measure of last resort, for the shortest period and only if justified by a legitimate purpose”. The detention must
comply with the principle of proportionality, rendering automatic or mandatory detention arbitrary, it notes.
The maximum period for which migrants can be held must be set out in law, while indefinite detention cannot be justified
and is arbitrary, it further elaborates.
“The deprivation of liberty of an asylum-seeking, refugee, stateless or migrant child, including unaccompanied or
separated children, is prohibited by international law,” the deliberation adds.
The Working Group, in its revised deliberation, also says migrants have the right to bring proceedings before a court to
challenge the legality of their detention, and to obtain appropriate remedies if their challenge is successful.
People detained in the course of migration proceedings enjoy as a minimum the same rights as those detained in the
criminal justice or other contexts, the deliberation notes.
The new document updates a deliberation issued in 1999 to tackle the situation of immigrants and asylum seekers held in
prolonged custody without the possibility of administrative or judicial remedy. The new deliberation reflects changes in
international law and the Working Group’s jurisprudence since then, as well as concern over the growing use of detention
in the context of migration.
The deliberation, formally adopted by the group in November 2017, has been issued in 2018 to mark the 70th anniversary
of the Universal Declaration of Human Rights.
ENDS
The Working Group on Arbitrary Detention is comprised of five independent expert members from around the world: Mr. José Antonio Guevara Bermúdez (México),
current Chair-Rapporteur; Ms. Elina Steinerte (Latvia), Ms. Leigh Toomey (Australia), Mr. Seong-Phil Hong (Republic of
Korea), and Mr. Sètondji Roland Adjovi (Benin).
The Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system,
is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific
country situations or thematic issues in all parts of the world. Special Procedures’ experts work on a voluntary basis;
they are not UN staff and do not receive a salary for their work. They are independent from any government or
organization and serve in their individual capacity.