A/HRC/38/41
Timely communications between government agencies of the countries concerned, and
individual assessments of the specific needs of returnees (such as medical assistance or
communication with relatives) are also critical to ensure safe return and that migrants
receive the assistance they require.
38.
In the context of forced deportation, detainees are particularly vulnerable to risks of
ill-treatment and torture. A number of legal and procedural safeguards can assist in
effectively preventing serious human rights violations, such as (a) individual medical
screenings by qualified professionals prior to deportation; (b) access to detention records to
enable persons to make timely and accurate complaints about their treatment; (c) strict
limits on the use of force, which should only be used as a last resort, and be necessary and
proportionate to individual circumstances; (d) the use of limited means of restraint, which
should be used only as a last resort, to the least extent necessary, and be removed at the
earliest opportunity; and (e) appropriate selection and assessment of and specific training
for escort staff.29
4.
The use of detention, including detention of children and their families
39.
The fact that detention is extensively used as a tool of border management and
deterrence tool against migrants, and too often as a means to prevent their access to justice,
is a worrying trend (A/72/173, para. 57). While progress has been made in some countries,
detention of migrants has largely become a systematic part of migration management across
entire regions. The increasing use of detention for migration purposes is not systematically
accompanied by legal guarantees or human rights protection for detained migrants.
40.
Experience has shown that detention does not deter irregular migration, nor does it
increase the effectiveness of removal procedures; it only increases the suffering of
migrants, and may have a long-term detrimental impact on their mental health.
Furthermore, detention has no influence on the choice of destination country, nor does it
lead to a reduction in the number of irregular arrivals. Evidence has also revealed the high
costs and low effectiveness of lengthy detention when used as a tool for migration
management.30
41.
According to international human rights norms and standards, children should never
be detained for immigration purposes, nor can detention be justified as being in a child’s
best interests. 31 The European return directive nonetheless allows for the detention of
children as a measure of last resort and for the shortest appropriate period of time, in
violation of international child rights norms and standards. 32
E.
Migrants with particular protection needs
42.
States have a legal obligation to pay special attention to migrants with particular
protection needs, such as children, victims of trafficking, persons with disabilities, older
persons and persons with medical needs. The vulnerability of these migrants may be related
to the reasons for leaving their countries of origin, the situations that they encounter during
their journey and destination, and their identity, condition or circumstances.
29
30
31
32
10
“National preventive mechanisms: monitoring the force deportation flights of migrants”, Association
for the Prevention of Torture, March 2012. See also “Twenty Guidelines on Forced Return”, adopted
by the Committee of Ministers of the Council of Europe on 4 May 2005.
Platform for International Cooperation on Undocumented Migrants, Position Paper on EU Return
Directive, April 2015.
See joint general comment No. 3 (2017) of the Committee on the Protection of the Rights of All
Migrant Workers and Members of Their Families and No. 22 (2017) of the Committee on the Rights
of the Child on the general principles regarding the human rights of children in the context of
international migration; joint general comment No. 4 (2017) of the Committee on the Protection of
the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the
Committee on the Rights of the Child on State obligations regarding the human rights of children in
the context of international migration in countries of origin, transit, destination and return.
OHCHR, “UN Child Rights Experts call for EU-wide ban on child immigration detention”, press
release, 21 February 2018.