This Article is written by Ms. SRI ROSHINI NAKKA, a 3rd year student of DSNLU, Visakhapatnam.
ABSTRACT
“We are world of states and world of people on move thus world of borders.” –International dialogue on migration. People from around the world, migrant from one country to other in search of job, for better life, marriage, war or for medical facilities. So, it is always not lawful to detain such migrants. The detention of migrants is a complex and controversial issue, raising concerns about human rights and the treatment of vulnerable individuals. However, a robust framework of international legal standards and protections exists to ensure that migrant detention is used only as a last resort and conducted humanely. In this article below the international legal standards and protection for these migrants while being detained is discussed
INTRODUCTION
As article 1 and 2 of Universal declaration of human rights highlights everyone is entitled to all the rights and freedoms, without discrimination of any kind, such as race color, sex, religion, language, social or national origin, birth, property and other status. Everyone is born free and have all rights as humans. A migrant, asylum seeker, or refugee who is detained by a Member State and denied their right to freedom of movement is said to be in detention. Detention, however, ought to be used as a last resort following a thorough and customized assessment of each situation. Along is the International law for migration where all kind of migrants like women, children, men, refugees, state less people are included and protected.
No international human rights treaty is violated by administrative detention in and of itself, according to the Working Group on Arbitrary Detention. Nonetheless, the justifications for detaining migrants such as the requirement to identify migrants in an irregular situation, the possibility of absconding, or the ease with which an irregular migrant serving a removal order can be expelled “must be clearly defined and exhaustively enumerated in legislation.”
It is necessary to confirm if a detention is lawful in accordance with international law, especially the principles of the ICCPR. From an international standpoint, the reason for the lack of legality is frequently that certain States “label migration detention centers as ‘transit centers’ or ‘guest houses,’ and ‘detention’ as retention,'” in the absence of laws allowing the restriction of liberty for migrants.
PROCEDURAL SAFEGUARDS TO MIGRANTS
Access to legal representation: Detainees have the right to be informed of their rights and to consult with a lawyer promptly. They have right to information and communication with the outside world. Migrants have the right to information not just regarding the reasons for their detention but also prior to their arrival on a state’s territory. Additionally, while in detention, migrants have to be allowed to communicate with the outside world via phone, fax, or email as well as with family both in their country of origin and destination, a lawyer, and a consular official. Facilitating communication with civil society organisations and immigrant groups in the countries of destination is also important.
Fair and impartial proceedings: Detainees have the right to challenge the lawfulness of their detention before an independent and impartial body. The need of registering the existence of any individual placed in custody or detention is emphasised in All Persons under Any Form of Detention or Imprisonment. The individual’s name, the reasons for their detention, the appropriate authority that made the decision, the time and date of their entrance and release from custody, and more. Access to family and independent monitors: Detainees should have the right to contact their families and independent monitors, such as human rights organizations.
CONDITIONS OF DETENTION:
Humane treatment: Detainees must be treated with humanity and dignity, and protected from all forms of torture, cruel, inhuman or degrading treatment or punishment. This includes ensuring access to adequate food, water, sanitation, healthcare, and other basic necessities. Non-discrimination: Detainees must not be discriminated against on the basis of their nationality, race, religion, gender, or any other protected ground. Special needs: States have a particular obligation to protect vulnerable groups, such as women, children, and persons with disabilities.
Appropriate care and facilities should be provided to meet their specific needs. Appropriate food and ample amounts of drinking water; sufficient clothes, bedding, blankets, toiletries, etc.; furniture, including beds, chairs, and tables, as well as lockers to store and safely keep personal belongings; separate accommodations and separate restrooms for men, women, and unaccompanied minors; adequate, clean, and functional sanitation facilities; frequent access to the outdoors for a significant portion of the day; and enough recreational activities (TV, books, games, exercise, etc.). In his 2010 report, Jorge Bustamante, the UN Special Rapporteur on the human rights of migrants, made it clear that “conditions in migration-related detention centres should not be comparable to those in prisons.”
GENERAL HUMAN RIGHTS PRINCIPLES
- Universal Declaration of Human Rights (UDHR): Provides for Articles 9 (freedom from arbitrary arrest and detention) and 10 (right to fair trial) apply to all persons, including migrants. Guarantees the right to liberty and security of person (Article 3), and freedom from torture or cruel, inhuman or degrading treatment or punishment (Article 5), which makes it a platform to protect the rights of individual from detention and proving with protection.
- International Covenant on Civil and Political Rights (ICCPR): Article 9 prohibits arbitrary arrest and detention, and requires detention to be based on specific legal grounds and subject to judicial review. “No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law,” according to paragraph 1 Article 9 of the ICCPR. In its General Comment No. 8, the Human Rights Committee (HRC) made it clear that this clause applies to all forms of deprivation of liberty, including those used as a migration control mechanism and in criminal prosecutions.
- Article 10 of the International Covenant on Civil and Political Rights (ICCPR) stipulates that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” This is the fundamental principle that applies to standards of detention.
SPECIFIC PROTECTIONS FOR MIGRANTS
- Principle of Non-Refoulement: This customary international law principle prohibits returning a person to a place where they may face persecution or risk of harm. It applies to all migrants, regardless of their legal status.
- Convention relating to the Status of Refugees (1951): Provides specific protections for refugees, including prohibiting their detention solely on the grounds of their refugee status.
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Prohibits torture and other ill-treatment in all circumstances, including in immigration detention.
- UN Guidelines on the Use of Immigration Detention: These non-binding guidelines outline best practices for States regarding the use of immigration detention, emphasizing its limited use and the need for humane conditions.
KEY STANDARDS FOR MIGRATION DETENTION:
- Lawfulness: Detention must be based on a legal basis and subject to judicial review. Lawfulness of detention is determined by its Non arbitrariness. Detention must be based on a valid legal ground, such as a risk of flight or a danger to the public, and must follow due process of law. The mere provision of a legal basis for restriction of liberty is insufficient. Both the legislation itself and how it is applied in a particular situation must not be done arbitrarily. The term “arbitrariness” should not be used synonymously with “breaking the law,” but rather should be understood more widely to encompass aspects of inappropriateness, injustice, and unpredictability.
- Necessity: Detention should only be used as a last resort and when other less intrusive measures are insufficient.
- Proportionality: The duration and conditions of detention must be proportionate to the legitimate aim pursued. Detention must be the least restrictive measure available to achieve a legitimate aim. Alternatives to detention, such as reporting requirements or electronic monitoring, should be prioritized.
- Humane Conditions: Detainees must have access to basic necessities, healthcare, legal representation, and family contact.
- Alternatives to Detention: States should explore alternatives to detention, such as community-based supervision, reporting requirements, or financial guarantees.
- Protection of Vulnerable Groups: Children, pregnant women, victims of trafficking, and others with special needs require particular attention and protection in detention.
- Maximum Duration: Detention should not be indefinite. States must establish a maximum duration for detention and review cases regularly to ensure that continued detention is justified. The legislation must specify the maximum length of detention, which may never be excessively long or unrestricted. When this time frame passes, the prisoner ought to be released automatically. The European Court of Human Rights noted that “consideration should be given to the fact that the measure is applicable to aliens who, frequently out of fear for their lives, have fled from their own country rather than to those who have committed criminal offences.”
ENFORCEMENT AND MONITORING
UN Human Rights Mechanisms like the UN Human Rights Council and various special procedures monitor States’ compliance with human rights obligations regarding migrants. And the Regional Human Rights Bodies like the European Court of Human Rights and the Inter-American Commission on Human Rights have also issued jurisprudence on the detention of migrants. Civil Society Organizations like NGOs and advocacy groups play a crucial role in documenting abuses and advocating for better protection of migrant rights.
Every facility that houses migrants in detention ought to have a surveillance system. States should “permit, when applicable, the monitoring of reception centres and detention centres by ombudspersons and national human rights commissions, parliamentarians and other national or international monitoring bodies,” according to the Parliamentary Assembly of the Council of Europe. It is necessary to establish specialised monitoring bodies where none now exist.
CHALLENGES
Despite the existing legal framework, significant challenges remain in ensuring the consistent and effective protection of migrant detainees. Some on-going debates include:
Alternatives to detention: Expanding and effectively utilizing alternatives to detention to minimize unnecessary deprivation of liberty.
Conditions of detention: Ensuring access to healthcare, legal aid, and family contact, and preventing overcrowding and inhumane treatment.
Detention of children: Protecting the best interests of the child and minimizing their detention to the shortest possible period.
Commercial detention facilities: Ensuring accountability and humane treatment in privately-run detention centres.
INDIA
Even though a vast array of different kinds of refugees have called India home in the past, the country has handled “refugee” matters on a bilateral basis. India has been adhering to a “refugee regime” that mostly complies with international treaties on the matter. It has not, however, formalised the policies it has followed through the adoption of a distinct statute. Undoubtedly, refugees are “foreigners.” As things stand in India, they are governed by the general and particular rules that are in place there, which apply to all foreigners even though there may be a reason to separate them from the other “foreigners.”
The Indian Constitution’s Articles 22(1), 22(2), and 25(1) state that refugees are entitled to the same natural justice protections as those found in common law regimes in India. The fundamental tenet of India’s rule of law is that no one, citizen or foreigner, may be deprived of their life, liberty, or property without legal justification. The common law precept is clearly incorporated into the Indian Constitution, and courts have gone so far as to declare it to be an unchangeable fundamental element. International treaties and convention are implemented through municipal laws in India and thus the protection to migrants is provided as per the international laws.
CONCLUSION:
The detention of migrants remains a complex and sensitive issue with significant legal and ethical implications. Upholding international legal standards and ensuring their effective implementation are crucial to protect the human rights and dignity of migrants in detention. States should review their national laws and policies on migration detention to ensure compliance with international legal standards. They must develop alternatives to detention, such as community-based programs. They must also be provided with improved conditions of detention and guarantee access to essential services for detainees. States must cooperate with international organizations and civil society to promote and protect the human rights of migrants.
It is important to remember that migrants are not criminals simply because of their migratory status. They deserve to be treated with dignity and respect for their human rights. I hope this information provides a helpful overview of the key international legal standards and protections regarding the detention of migrants. However, under international law, restrictions on liberty based on administrative acts are permissible; nevertheless, the measure must be based on a statute that has adequate clarity and specifies the protocols that must be followed. This means that an administrative act can only be used to detain someone if it is carrying out a legal mandate.
REFERENCES
Detention of migrants
- https://www.europarl.europa.eu/RegData/etudes/BRIE/2023/753926/EPRS_BRI(2023)753926_EN.pdf.
- https://www.iom.int/sites/g/files/tmzbdl486/files/our_work/ODG/GCM/IOM-Thematic-Paper-Immigration-Detention.pdf
- https://www.refworld.org/pdfid/503489533b8.pdf.
- https://publications.iom.int/system/files/pdf/idm_3_en.pdf.
- https://www.ohchr.org/sites/default/files/Documents/Issues/Detention/DraftBasicPrinciples/IOM3.pdf.
- https://www.ohchr.org/en/human-rights-international-borders.
- https://www.unhcr.org/media/refugee-protection-guide-international-refugee-law-handbook-parliamentarians.
- https://www.ohchr.org/en/migration/international-standards-governing-migration-policy#:~:text=As%20with%20all%20rights%2Dholders,or%20collective%20expulsion%20of%20migrants.
- https://www.globaldetentionproject.org/countries/asia-pacific/india#:~:text=There%20has%20been%20a%20sharp,that%20regulates%20immigration%20in%20India.
- Working Group on Arbitrary Detention, Annual Report of 15 January 2010, U.N. Doc. A/HCR/13/30.
- http://www.worldlii.org/int/journals/ISILYBIHRL/2001/7.html