A/HRC/20/24
65.
Voluntary return programmes may be used as a mechanism to support and facilitate
the departure of individuals who have no grounds to remain in the country and who have no
protection or humanitarian concerns. Voluntary return programmes can be a solution for
migrants who wish to return home but lack the means to do so. It can be a humane
alternative to detention and deportation and, in certain circumstances, can allow a prepared,
dignified and sustainable return and reintegration. However, care must be taken to ensure
that the decision to return is fully voluntary and a result of a genuine, informed choice,
particularly if the migrant is in a situation of closed detention when offered the option of an
assisted voluntary return programme and that preparations have been made to ensure that
his or her return is sustainable for the long term.
66.
In order to ensure the success of alternatives to detention, all persons subject to noncustodial measures should receive clear and concise information about their rights and
duties in relation to the measures in place, and on the consequences of non-compliance.
They should also be treated with dignity, humanity and respect for their human rights
throughout the relevant immigration procedure. Migrants subject to non-custodial measures
should have access to legal advice, including on regularisation procedures and how to
explore regular migration channels. The issuing of identification documents for those who
do not have any is also a necessary feature of alternatives to detention, in order to avoid
(re-)detention and facilitate the ability to find accommodation and work and to access
health care, education and other services. Migrants who are subject to non-custodial
measures also have a right, in accordance with the Covenant on Economic, Social and
Cultural Rights, to an adequate standard of living (food and water, clothing, housing) (art.
11) and to the enjoyment of the highest attainable standard of physical and mental health
(art. 12). Migrants who are not permitted to work should receive the required State support
to ensure an adequate standard of living for themselves and their families, and States should
consider allowing migrants access to the labour market. Releasing persons from detention
to face destitution is not an appropriate response. Policies that restrict access to housing,
basic welfare or health care amongst irregular migrants have not been associated with
increased rates of independent departure or deterrence outcomes, and should be avoided.
67.
Several countries already have a presumption against detention in their national
laws, which may serve as good examples. States may also seek guidance from NGOs that
have undertaken extensive research on alternatives to detention. For instance, the
International Detention Coalition has introduced the Community Assessment and
Placement model, which consists of five steps to prevent and reduce the likelihood of
unnecessary detention. These steps are: (1) presume detention is not necessary; (2) screen
and assess the individual case; (3) assess the community setting; (4) apply conditions in the
community if necessary; (5) detain only as a last resort in exceptional cases.
III. Conclusions and recommendations
68.
Detention for immigration purposes should never be mandatory or automatic.
According to international human rights standards, it should be a measure of last
resort, only permissible for the shortest period of time and when no less restrictive
measure is available. Governments have an obligation to establish a presumption in
favour of liberty in national law, first consider alternative non-custodial measures,
proceed to an individual assessment and choose the least intrusive or restrictive
measure.
69.
The reasons put forward by States to justify detention should be clearly defined
and exhaustively enumerated in legislation. If, as a measure of last resort, a State
resorts to detention for immigration-control purposes in an individual case, this
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