Annex I: Background Paper Preventing torture in the OSCE region in the context of immigration detention Within and outside the OSCE region, an increasing number of States are using collective and systematic detention as a way to cope with large incoming flows of migrants, including children, to their territories. For the purpose of this meeting, and in the absence of an international legal definition, the term “migrant” will refer to “any person who is outside a State of which they are a citizen or national, or, in the case of a stateless person, their State of birth or habitual residence.”30 This term is used irrespective of the reason for migration or legal status. “Immigration detention” is defined as the deprivation of a person’s liberty for the breach of entry, stay and transit rules in a given receiving country. Deprivation of liberty should be understood broadly, as per the definition contained in article 4(2) of the Optional Protocol to the UN Convention against Torture (OPCAT): “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”. Immigration detention is usually of an administrative character. 31 It shall therefore never be punitive in either purpose or effect.32 States are obliged to avoid prison-like environments, and to guarantee certain standards concerning the material conditions, the length of detention and the respectful treatment in accordance with the non-criminal status of migrants in detention. In other words, the conditions of immigration detention should reflect the administrative nature of detention in comparison with the criminal justice system. 33 The deprivation of liberty of migrants is admissible as a last resort measure only, for the shortest possible period and for the purposes of documenting the entry, recording claims of the person concerned and determining her/his identity.34 Detention that goes beyond the timeframe of those purposes, should be the outcome of a legal process, based on a case-by-case analysis and is only admissible for reasons such as the likelihood of absconding, the risk of committing crimes or of acting against national security. 35 Vulnerabilities during immigration detention may be exacerbated by detainees’ lack of access to appropriate information, including legal support, language barriers and the inability to challenge the irregularity of their detention. Moreover, certain groups or persons have additional needs and are in a situation of increased vulnerability in detention, including: children (whether accompanied or not), persons suffering from trauma, including victims of torture, persons with disabilities, members of ethnic minorities, the elderly, LGBTI persons, or those with urgent medical needs.36 Monitoring immigration detention 30 OHCHR, Principles and Guidelines on the human rights protection of migrants in vulnerable situations, p. 14 https://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf and https://refugeesmigrants.un.org/definitions. 31 Monitoring Immigration Detention – Practical Manual, APT, UNHCR and IDC, 2014, https://www.apt.ch/content/files_res/monitoring-immigration-detention_practical-manual.pdf. 32 Op.cit., note 30. 33 States shall “ensure that any detention in the context of international migration follows due process, is non-arbitrary, based on law, necessity, proportionality and individual assessments, is carried out by authorized officials, and for the shortest possible period of time, irrespective of whether detention occurs at the moment of entry, in transit, or proceedings of return, and regardless of the type of place where the detention occurs.” […] “to prioritize noncustodial alternatives to detention that are in line with international law, and to take a human rights-based approach to any detention of migrants, using detention as a measure of last resort only”, see Global Compact For Safe, Orderly And Regular Migration, Objective 13, 11 July 2018, to be adopted in December 2018, https://refugeesmigrants.un.org/sites/default/files/180711_final_draft_0.pdf. 34 CPT, Factsheet on Immigration Detention, March 2017, page 2. 35 See e.g. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 26 February 2018, A/HRC/37/50, https://www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf. 36 Monitoring Immigration Detention – Practical Manual, APT, UNHCR and IDC, 2014, https://www.apt.ch/content/files_res/monitoring-immigration-detention_practical-manual.pdf. 18