Can migrants and asylum seekers be detained in the context of migration?

The UN Working Group on Arbitrary Detention issued a statement on 26 February 2018 the Revised Deliberation No. 5 on deprivation of liberty of migrants, in which it reaffirms the absolute prohibition of arbitrary detention and the universal human right to seek asylum. The systematic and open-ended detention of migrants constitutes arbitrary deprivation of liberty. Therefore, the expert group said that placing migrants and asylum seekers in detention should be a measure of last resort, used only in strictly limited circumstances. The UN Special Rapporteur on torture, Nils Melzer, presented his report to the Human Rights Council on 1 March 2018, in which he said that when detention is “intentionally used to deter, intimidate or punish migrants or their families, to extort money or sexual acts, or to coerce people into withdrawing asylum requests, accepting voluntary repatriation, giving information or providing fingerprints” it can even amount to torture.

How about the detention of children in the context of migration?

The UN Committee on the Rights of the Child (CRC) considers as children persons up to the age of 18. On 21 February 2018, the Committee adopted a statement calling for an EU-wide ban on child immigration detention, based on its Joint General Comment Nos. 22 and 23. The Committee considers that detaining children in the context of migration proceedings is never in their best interest, and constitutes a violation of the rights of the child. The Committee underlined there were no exceptions to this rule and called on Governments to provide children and their families with community-based placement; access to services in a protective environment, on a non-discriminatory basis, with child-friendly, clear information and support; and the appointment of guardians for unaccompanied children.

Can irregular entry to a country or having no identity papers be considered a criminal offense?

The Working Group on Arbitrary Detention in its statement also clarified that irregular entry and stay in a country by migrants may not be treated as a criminal offence.

What about people and organizations helping migrants?

The UN Special Rapporteur on the situation of human rights defenders, Michel Forst, in his report on the human rights defenders of people on the move to the Human Rights Council on 1 March 2018, said that States have an obligation to protect human rights defenders who assist people on the move. He criticized the unprecedented threats and restrictions to their work that human rights defenders are facing, as well as pervasive disqualification and criminalization. He recommended that States recognize the important and legitimate role played by human rights defenders of people on the move; and condemn publicly all instances of violence, discrimination, intimidation or reprisals against them.

The principle of non-refoulement prohibits States from sending migrants back to countries where they risk being subjected to torture. How should this principle be applied in practice?

The UN Committee against Torture (CAT) issued new guidelines and a checklist on 26 February 2018 in its General Comment No. 4 for governments’ implementation of the principle of non-refoulement (Article 3 of the Convention against Torture). The Committee urged States parties to take legislative, administrative, judicial and other preventive measures against possible violations of the principle of non-refoulement. Accordingly, States should provide effective training to all relevant personnel; and ensure the right of each person concerned; to have their case examined individually (individual assessment); to have access to a lawyer; to have access to free legal aid where necessary; to have access to information regarding the proceedings in a language they understand; to be referred to an independent medical examination where there is an allegation of previous torture; to enjoy the right of appeal against a deportation order to an independent administrative and/or judicial body, with the suspensive effect of its enforcement.

Are there instances when deportation without individual assessment can be legal?

The UN Special Rapporteur on torture, Nils Melzer, in his report to the Human Rights Council on 1 March 2018, said that migrants cannot lawfully be deported without an individualized assessment, "including through international agreements, diplomatic assurances, border closures or so-called ‘pushback’ or ‘pullback’ operations, by which migrants are forcibly prevented from crossing international borders.” He urged for an end to migration policies based on deterrence, criminalization and discrimination.