CMW/C/GC/2
38.
Article 17, paragraph 3, underlines the non-punitive nature of administrative
detention. It provides for migrant workers or members of their families who are detained
for violation of provisions relating to migration to be held, insofar as is practicable,
separately from convicted persons or pretrial detainees. Given that such detention can last
for an extended period, migrant detainees should be kept in special facilities that are
specifically designed for that purpose. Moreover, migrant workers and members of their
families should not be subjected to any greater restriction or severity than is necessary to
ensure safe custody and good order. The Committee is of the view that States parties should
look for alternatives to administrative detention and that administrative detention should
only be used as a last resort.
39.
The Committee considers that administrative detention of migrant workers should,
as a rule, take place in public establishments. Privately run migrant detention centres pose
particular difficulties in terms of monitoring. States parties cannot absolve themselves of
their human rights obligations by contracting out the detention of persons to private
commercial enterprises. If States parties delegate such functions to private companies, they
must ensure respect for the rights of detained migrant workers, as provided for under article
17 of the Convention. States parties must ensure that detention centre personnel are trained
in human rights, cultural sensitivity, and age and gender considerations.
40.
Article 17, paragraph 4, underscores the essential aim of the criminal justice system,
which is to reform and rehabilitate offenders. Juvenile offenders must be separated from
adults and treated appropriately for their age and legal status, and pursuant to international
standards, including the United Nations Rules for the Protection of Juveniles Deprived of
their Liberty.
41.
Article 17, paragraph 5, guarantees detained and imprisoned migrant workers and
members of their families the same rights as nationals with regard to visits by their family
members. If the law of a State party grants certain visitation rights, such as direct contact
with visiting family members, to nationals who are deprived of their liberty, it must ensure
equal rights for detained or imprisoned migrant workers, including those in an irregular
situation. States parties shall eliminate de facto discrimination against detained migrant
workers by removing practical barriers to their equal enjoyment of visitation rights, such as
detention in a remote location, making access difficult for family members.
42.
Article 17, paragraph 6, requires States parties to pay attention to the problems that
deprivation of liberty may pose for family members, in particular spouses and minor
children. In such cases, the Committee is of the view that States parties should seek
alternatives to administrative detention, as administrative detention often has dire
consequences, both economically and psychologically, for spouses and children.
43.
Article 17, paragraph 7, contains a specific non-discrimination clause providing for
detained or imprisoned migrant workers and members of their families to enjoy the same
rights as nationals of the State of employment or transit who are in the same situation. This
provision has the effect of extending additional procedural safeguards, over and above
those contained in article 17, to detained migrant workers, such as the right to communicate
with the outside, including by telephone, access to health professionals and to education, if
also provided to nationals.
44.
This provision also raises the issue of family detention. As a general rule, children
and families with children should not be detained and States parties should always give
priority to alternatives to detention where children and families are concerned. When family
detention is unavoidable, detention of children shall be used “only as a measure of last
resort and for the shortest appropriate period of time”, in accordance with article 37,
paragraph (b), of the Convention on the Rights of the Child. Moreover, the primary
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