A/HRC/37/50
(g)
While the following recommendations aim to assist States in preventing
torture and ill-treatment in the context of migration and ensuring access to protection,
redress and rehabilitation for victims, the global governance challenges posed by large
and complex migration movements cannot possibly be resolved by individual States
alone, but only through multilateral cooperation ensuring international peace and
security, human rights, sustainable development, environmental protection and the rule
of law in line with the United Nations Sustainable Development Goals (A/RES/70/1).
The currently on-going work towards two global compacts on refugees and for safe,
orderly and regular migration represents a timely and important opportunity for the
international community to make a significant step forward in this respect.
B.
Recommendations
65.
In addition to the general recommendations of the mandate,98 and
recognizing the impossibility of providing detailed guidance on every relevant aspect of
migration policy, the Special Rapporteur would like to offer the following
recommendations with a view to ensuring compliance with the prohibition of torture
and ill-treatment, avoiding protection gaps and preventing impunity for violations in
the context of migration:
(a)
National laws, policies and practices: In order to protect migrants from
exploitation and abuse at the hands of criminals, corrupt officials and private citizens,
States should refrain from basing their migration laws, policies and practices, their
public communication, and their agreements with other States or non-State actors,
including corporate actors, on deterrence, criminalization and discrimination. Instead,
States should focus on developing sustainable pathways for safe, orderly and regular
migration based on protection, human rights and non-discrimination.
(b)
Duty to respect and ensure: States further should take all necessary
legislative, administrative, judicial and other measures to ensure that migrants will not,
as a consequence of their laws, policies, practices or omissions, be subjected or exposed
to acts or risks of torture or ill-treatment, or prevented from exercising ancillary rights
designed to protect them against such abuse, such as the rights to leave any country or
territory, to seek and enjoy asylum and other forms of international protection, not to
be detained arbitrarily, and to have individual rights and duties determined in a due
process proceeding.
(c)
Migration-related detention: States should refrain from policies of
mandatory, prolonged or indefinite detention of migrants. Any migration-related
detention should remain an exceptional measure and should be physically separated
from detention related to the criminal justice system. Migrants, especially children,
should never be detained solely because of their irregular migration status or the
impossibility of their expulsion. The detention of migrants should never be used as a
means of deterrence, intimidation, coercion or discrimination but, within the margins
set by human rights law, should be subject to the same criteria as are applicable to
nationals, including the requirements of legality, necessity, proportionality and, in the
exceptional cases warranting administrative or preventative detention, periodic review.
Furthermore, detention conditions and treatment must always align with international
standards, most notably the "Nelson Mandela Rules", duly taking into account any
personal vulnerability due to factors such as migration status, age, gender, disability,
medical condition, previous trauma, or membership in a minority group. Independent
national, international and non-governmental monitoring mechanisms, including civil
society, National Preventive Mechanisms, the SPT, the Special Rapporteur and, in
armed conflict, the ICRC, should be given full access to all places where migrants may
be detained or accommodated, including extraterritorial vessels, off-shore facilities, and
transit zones.
98
http://www.ohchr.org/Documents/Issues/SRTorture/recommendations.pdf
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