A/HRC/20/24
should be considered only when someone presents a risk of absconding or presents a
danger to their own or public security
70.
Administrative detention should not be applied as a punitive measure for
violations of immigration laws and regulations, as those violations should not be
considered criminal offences.
71.
The Special Rapporteur calls on States to adopt a human rights-based
approach to migration and review their legislation and policies on detention of
migrants, ensuring that national laws are harmonized with international human
rights norms that prohibit arbitrary detention and inhumane treatment.
72.
The Special Rapporteur calls on States to consider progressively abolishing the
administrative detention of migrants. In the meantime, Governments should take
measures to ensure respect for the human rights of migrants in the context of
detention, including by:
(a)
Ensuring that procedural safeguards and guarantees established by
international human rights law and national law are applied to any form of detention.
In particular, grounds for detention of migrants must be established by law. A
decision to detain should only be taken under clear legal authority, and all migrants
deprived of their liberty should be informed in a language they understand, if possible
in writing, of the reasons for the detention and be entitled to bring proceedings before
a court, so that the court can decide on the lawfulness of the detention. Migrants in
detention shall be assisted, free of charge, by legal counsel and by an interpreter
during administrative proceedings;
(b)
Ensuring that migrants in detention are accurately informed of the
status of their case and of their right to contact a consular or embassy representative
and members of their families. Migrants and their lawyers should have full and
complete access to the migrants’ files;
(c)
Ensuring that the law sets a limit on the maximum length of detention
pending deportation and that under no circumstance is detention indefinite. There
should be automatic, regular and judicial review of detention in each individual case.
Administrative detention should end when a deportation order cannot be executed;
(d)
Ensuring that migrants under administrative detention are placed in a
public establishment specifically intended for that purpose or, when this is not
possible, in premises other than those intended for persons imprisoned under criminal
law. The use of privately run detention centres should be avoided. Representatives of,
inter alia, national human rights institutions, OHCHR, UNHCR, ICRC and NGOs
should be allowed access to all places of detention. All migrant detention facilities –
whatever their form – should be subject to a common set of standards, policies and
practices and should be monitored by an independent central authority that is
dedicated to ensuring compliance with the common set of standards, policies and
practices;
(e)
Ensuring that the Body of Principles for the Protection of All Persons
under Any Form of Detention and Imprisonment are applied to all migrants under
administrative detention. The principles include the provision of a proper medical
examination as promptly as possible and medical treatment and care whenever
necessary and free of charge; the right to assistance, free of charge if necessary, of an
interpreter and a legal counsel; the right to communicate with the outside world, in
particular family and counsel; the right to obtain, within the limits of available public
resources, educational, cultural and informational material;
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