Monitoring immigration detention, including its legal and administrative framework, is an important part of efforts to prevent torture and other ill-treatment for National Preventive Mechanisms (NPMs) and NGOs alike. Visiting immigration detention facilities is a key element of monitoring as a continued process that needs to take into account any condition that may lead to ill-treatment. Monitoring also involves issuing reports about the findings of the visits, making recommendations and building a cooperative and constructive dialogue with the relevant authorities.37 In addition, many NPMs of the region have integrated in their mandate the monitoring of forced returns, a practice which entails several risks and ought to be monitored to ensure effective protection of the rights of returning migrants. The European Committee for the Prevention of Torture (CPT), who has visited hundreds of immigration detention facilities over its nearly 30 years of existence, has developed standards for monitors to observe in the context of immigration detention on the following areas: detention as a last resort; safeguards during detention; suitable premises; adequate material conditions for longer stays (over 24 hours); open regime; qualified staff; procedures for discipline, segregation and means of restraint; effective monitoring and complaints mechanisms; adequate health care; care of vulnerable persons (in particular children). 38 Working groups Participants will be divided in four parallel working groups to: • Address key issues in relation to immigration detention and the role of NPMs and CSOs in their respective countries in preventing torture and other forms of ill-treatment in those detention settings • Share experiences and expertise based on realities from different countries • Identify good practices, including in relation to cooperation between NGOs and NPMs Working Group 1: Legality of immigration detention and ensuring access to rights and procedures The legality of detention is the factor determining whether a person’s right to liberty has been violated or not. Due process is an important element for the reduction of the risk for torture or ill-treatment and includes an assurance of the examination of every aspect of detention, including its legality throughout the process: from the initial deprivation of liberty until the detention in specified facilities. Persons held under immigration detention should benefit from the same safeguards applicable to other persons deprived of their liberty as from the outset. For the detention to be considered lawful, it must be grounded in legislation, time-bound and the detainees must be informed about the process to challenge its legality or the reasons for being detained before a competent, impartial and independent judicial body. Detainees must be informed of the reason for their detention and the rights to which they are entitled in written form and in a language they can understand. If necessary, the services of an interpreter should be made available. If a detention is being extended, it must follow the same procedure. The maximum length of time for which a detention can be extended must be clearly stated in law. Indefinite detention in the migration context is, in principle, not permissible under international law and may constitute a form of arbitrary detention. In particular, asylum-seekers, refugees and stateless persons face a heightened risk of arbitrary detention and specific international guarantees exist to protect them and to uphold their right to access asylum procedures and related due process standards. As regards the right to access the asylum procedure, the UN Special Representative on Migration and Refugees noted that the exercise of the right to seek asylum by a person in immigration detention requires positive state action which goes beyond the removal of obstacles to seeking asylum. The competent state authorities must identify persons in need of international protection and ensure access to an effective and fair asylum procedure. Article 31 of the 1951 Convention specifically provides for the non-penalisation of refugees (and asylum-seekers) having entered or stayed irregularly. This is based on general recognition of the reality that people in need of international protection in many cases are, by 37 38 Ibid. See CPT, Factsheet on Immigration Detention (2017), https://rm.coe.int/16806fbf12. 19