Alternatives to detention for asylum seekers and people in return procedures
2. Alternatives to detention: selected instruments
This section presents the applicable legal standards relating to alternatives to detention and
provides an overview of alternatives, as well as the procedural guarantees that must be in place
for them to be used.
2.1. Selected non-binding United Nations (UN) instruments relating to
alternatives to detention
The UN recommends careful consideration before detaining asylum seekers, refugees or
migrants in an irregular situation to determine whether deprivation of liberty is necessary and
proportionate. Detention is only allowed for the shortest appropriate period of time. Generally,
detention should be a measure of last resort and Member States should ensure that
alternatives to detention are available in law and implemented in practice. Children should not
be detained purely for immigration-related reasons.
The United Nations have developed a set of basic principles to promote the use of non-custodial
measures for people subject to alternatives to imprisonment in the criminal field. These rules
contain important safeguards on access to rights and remedies that are largely applicable to the
immigration field as well.
According to the UN Special Rapporteur on the human rights of migrants, alternatives have
proved to be considerably less expensive than detention, not only in terms of direct costs but
also when it comes to longer-term costs associated with detention, such as the impact on health
services or migrant integration.
Instrument
Key text
United Nations General Assembly
Protection of migrants:
resolution adopted by the
General Assembly,
3 April 2013,
A/RES/67/172
4. […] (a) Calls upon all States to respect the human rights and the
inherent dignity of migrants and to put an end to arbitrary arrest and
detention and, where necessary, to review detention periods in order
to avoid excessive detention of irregular migrants, and to adopt, where
applicable, alternative measures to detention; […]
(d) Also notes with appreciation the successful implementation
by some States of alternative measures to detention in cases of
undocumented migration as a practice that deserves consideration by
all States;
United Nations Standard
Minimum Rules for NonCustodial Measures (The
Tokyo Rules),
14 December 1991,
A/RES/45/110
1.1 The present Standard Minimum Rules provide a set of basic
principles to promote the use of noncustodial measures, as well as
minimum safeguards for persons subject to alternatives to
imprisonment.
United Nations Rules for
the Treatment of Women
Prisoners and NonCustodial Measures for
Women Offenders (the
The Bangkok Rules complement the Tokyo rules (above) by displaying
standards specifically addressing the needs of women in the criminal
judicial system. Section III focuses on non-custodial measures both for
pre-trial detention and sentencing post-conviction. The rules specifically
require to always take into account the best interests of any children
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