A/HRC/37/50
4.
Arbitrariness of detention based solely on migration-status
22.
Just as any other form of deprivation of liberty, any detention of migrants must be
justified for each individual as lawful, necessary and proportionate in the circumstances and,
in case of administrative or preventative detention, must be periodically re-assessed as it
extends in time.36 Provided that these generic conditions are met on an individual basis,
"(a)sylum seekers who unlawfully enter a State party’s territory may be detained for a brief
initial period in order to document their entry, record their claims and determine their identity
if it is in doubt. To detain them further while their claims are being resolved would be
arbitrary in the absence of particular reasons specific to the individual, such as an
individualized likelihood of absconding, a danger of crimes against others or a risk of acts
against national security. The decision must consider relevant factors case by case and not be
based on a mandatory rule for a broad category; must take into account less invasive means
of achieving the same ends, such as reporting obligations, sureties or other conditions to
prevent absconding; and must be subject to periodic re-evaluation and judicial review. (...)
The inability of a State party to carry out the expulsion of an individual (...) does not justify
indefinite detention." 37
23.
On the particularly issue of migration-related detention of children it has been
observed that "offences concerning irregular entry or stay cannot (...) have consequences
similar to (...) the commission of a crime. Therefore, the possibility of detaining children as
a measure of last resort, which may apply in other contexts such as juvenile criminal justice,
is not applicable in immigration proceedings as it would conflict with the principle of the
best interests of the child and the right to development."38 Accordingly, the detention of
children based solely on their own or their parents' irregular migration status has
authoritatively been found to be arbitrary.39
24.
Applying this rationale more generally, the Special Rapporteur observes that breaches
of immigration laws, as such, are essentially administrative in nature and do not constitute
crimes against persons, property, or national security which might justify or require sanctions
involving deprivation of liberty.40 Moreover, the Refugee Convention even expressly
prohibits the punishment of asylum seekers for having breached immigration rules in order
to gain access to the protection of the territorial State.41
25.
In sum, therefore, the margins of permissibility of migration-related detention are
narrow, both in terms of substantive justification and in terms of duration, and the mere fact
that detention is authorized by domestic law does not exclude its arbitrariness under
international law. In the view of the Special Rapporteur, criminal or administrative detention
based solely on migration status exceeds the legitimate interests of States in protecting their
territory and regulating irregular migration and should be regarded as arbitrary.42
5.
Relationship between arbitrariness and torture or ill-treatment
26.
While not every case of arbitrary detention will automatically amount to torture or illtreatment, there is an undeniable link between both prohibitions. Already more than 30 years
ago, the International Court of Justice held that "wrongfully to deprive human beings of their
freedom and to subject them to physical constraint in conditions of hardship is in itself
manifestly incompatible with the principles of the Charter of the United Nations, as well as
with the fundamental principles enunciated in the Universal Declaration of Human Rights".43
36
37
38
39
40
41
42
43
8
CAT, GC_No.4_(2017)_Art.3, §12.
CCPR, GC_No.35_(2014), §18.
Joint_GC_No.4_(CMW) and No.23_(CRC)_(2017), §10.
WGAD, Revised_Deliberation_No.5(AdvEditedVersion_07.02.2018), §40; Joint_GC_No.4(CMW)
and No.23_(CRC)_(2017), §5; IACtHR,_OC-21/14(19.08.2014), §154.
CMW/C/GC/2 (28.08.2013), §§5, 24; A/HRC/23/46 (24.042013), §47.
Art.31(1) Refugee Convention(1951).
WGAD, Revised_Deliberation_No.5(AdvEditedVersion_07.02.2018), §10.
ICJ, USA_v._Iran, Jgmt(Merits)_24.05.1980, §91.
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