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consideration in all actions concerning children shall be the best interest of the child
standard, as laid down in article 3, paragraph 1, of the Convention on the Rights of the
Child. States parties shall ensure that children in detention are treated with humanity and
respect for the inherent dignity of the human person and in an age-appropriate manner and
are provided with all legal safeguards (Convention on the Rights of the Child, art. 37).
States parties shall therefore provide living quarters that are suitable for children and
provide adequate access to education, play and leisure facilities, and, in the case of children
detained with their parents, in special family units. Children should not be separated from
their parents against their will except when such separation is necessary for the best
interests of the child (Convention on the Rights of the Child, art. 9, para. 1).
Unaccompanied children should be appointed a legal guardian who should be entrusted
with the duty to care for the child outside of detention facilities.
45.
States parties must also take into consideration the special situation of women
migrant workers in detention. States parties must ensure separate facilities for men and
women, ensure the provision of gender-specific health care services, and also provide for
the specific needs of pregnant women, breastfeeding mothers and mothers with young
children. States should avoid detaining women migrant workers in the final months of
pregnancy or if they are nursing. The United Nations Rules for the Treatment of Women
Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) provide
useful guidelines for States in these situations.
46.
Detention can be particularly damaging to vulnerable categories of migrant workers,
impacting negatively on their physical and mental health. These migrant workers and
members of their families may include victims of torture, unaccompanied older persons,
persons with disabilities and persons living with HIV/AIDS. Special measures should be
taken to protect vulnerable people deprived of their liberty, including access to adequate
health services, medication and counselling. Moreover, migrant workers with disabilities
and members of their families with disabilities should be provided with “reasonable
accommodation” 15 to ensure their right to enjoy their human rights and fundamental
freedoms on an equal basis with others.
47.
With regard to article 17, paragraph 8, the Committee considers that detention “for
the purpose of verifying any infraction of provisions related to migration” covers the entire
duration of administrative detention, and that, consequently, migrant workers and members
of their families subjected to administrative detention shall not bear any costs arising
therefrom.
48.
Considering that migrant workers deprived of their liberty are in a particularly
vulnerable situation due to their predicament and the uncertainty of the circumstances, the
Committee is convinced of the importance of independent monitoring in preventing torture
and other forms of ill-treatment and abuse. National human rights institutions, relevant civil
society actors, the Office of the United Nations High Commissioner for Refugees
(UNHCR), the International Committee of the Red Cross and the Office of the High
Commissioner for Human Rights should have broad access to all places of detention where
migrants are or may be detained.
4.
Protection in expulsion proceedings
49.
Article 22 of the Convention prohibits collective expulsion and provides procedural
safeguards in individual expulsion proceedings with respect to both regular and irregular
15
Convention on the Rights of Persons with Disabilities, art. 2.
13