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feel intimidated and obliged to sign papers without understanding their content. Incidents were
reported in which migrants waived their right to appeal against a deportation decision without
understanding that they were doing so.
34.
Often a lack of resources represents an obstacle to respecting procedural safeguards.
Resources might in fact not be available to allow countries of destination to provide free legal
counsel and interpretation services to all migrants. Equally, countries of origin might not have
consular representation owing to financial constraints. The Special Rapporteur believes that
efforts should be made to find imaginative and cost-effective solutions to guarantee migrants’
rights. These could include using the voluntary services of NGOs, individuals, universities, or
other national, regional and international organizations; the creation of toll-free services run by
volunteers to provide information and assistance to migrants; the conclusion of bilateral and
multilateral agreements between countries to provide assistance to migrants in distress; and
greater use of non-custodial measures.
Length of administrative detention
35.
Administrative deprivation of liberty should last only for the time necessary for the
deportation/expulsion to become effective. Deprivation of liberty should never be indefinite.
The Human Rights Committee found that “detention should not continue beyond the period for
which the State can provide appropriate justification. For example, the fact of illegal entry may
indicate a need for investigation and there may be other factors particular to the individual, such
as the likelihood of absconding and lack of cooperation, which may justify detention for a
period. Without such factors detention may be considered arbitrary, even if entry was illegal”9.
The Working Group on Arbitrary Detention10 further states that a maximum period should be set
by law and the custody may in no case be unlimited or of excessive length.
36.
Only in some countries’ legislation is a specific time limit set beyond which deprivation
of liberty should cease when deportation is not possible for reasons not imputable to the migrant,
and even where time limits are prescribed by law, they are often disregarded.
37.
According to the information received or personally witnessed by the Special Rapporteur,
migrants often remain in administrative detention for long periods of time. The deportation
procedure can in fact be very lengthy: consulates have to process travel documents, travel
arrangements made, asylum claims and appeals against deportation reviewed.11 The procedure
can be particularly time consuming in circumstances such as the absence of diplomatic
representation of the country of citizenship of the alien; the lack of means of the country of
destination to finance the deportation; the refusal of the State of origin or the receiving country
to accept the migrant. The case of stateless detainees, i.e. those who crossed the border
irregularly and whose Governments refuse to recognize them, is another circumstance that may
lead to indefinite detention. At times migrants remain in detention because, owing to the
situation in their countries of origin, they cannot be deported.12 The Special Rapporteur is
particularly concerned that recently enacted anti-terrorism legislation, allowing for the detention
of migrants on the basis of vague, unspecified allegations of threats to national security, can lead
to indefinite detention when migrants cannot be immediately deported because that would imply
a threat to their security and human rights.13