A/71/285
administrative status is illegal. 10 Administrative detention can only be justified if an
individual presents a danger to the public or risks absconding when their presence is
necessary in further proceedings. Such determinations must be done individually
and be based on some kind of evidence. Any detention that does not respect such
parameters is illegal. Furthermore, when detention becomes a routine measure of
border enforcement, it may be, per se, arbitrary insofar as it is neither an
exceptional measure of last resort, nor based upon a meaningful, individualized
assessment of risk.
90. Additionally, there are human rights concerns relating to the impact of
detention. Prolonged detention without a legal basis has been shown to have a
devastating effect on the physical and mental health of migrants and asylum seekers,
for example by contributing to post-traumatic stress disorder, anxiety and
depression. This is frequently compounded by unacceptable conditions of detention,
such as overcrowding, unsanitary toilet and shower facilities and unhygienic
kitchens, as well as by scarce access to health care, family members, lawyers,
international or civil society organizations, or physical and recreational activities.
91. Long periods of immigration detention can also lead to serious delays for
migrants in claiming their economic and social rights, even after having been
released. Research by the Office of the United Nations High Commis sioner for
Refugees (UNHCR) suggests that detention disempowers migrants, who are often
keen to work, owing to a sustained absence from the labour market and the
emotional and mental toll of detention.
92. Of particular concern is the frequent presence of children in detention.
Children are usually afforded additional protections by States and, according to
many national policies, should not be detained. However, the Special Rapporteur
has witnessed detained children in all the countries he has visited, so me of which
have absurdly justified such detention by calling it protective custody.
93. When the age of the child is unknown, which is common when they are
undocumented or coming from countries without robust birth registration systems,
they are often detained until their age can be verified, which can take weeks or
months. In some instances, while in detention, unaccompanied children live and
sleep alongside adults, without any special accommodation made for their young
age and without access to education. In others, families are separated in different
sections of the detention facility according to age and gender.
94. The detention of children, even for short periods, can have severe
psychological consequences. It has been made clear by the Committee on the Rights
of the Child and reinforced by other human rights mechanisms that immigration
detention can never, ever, be in the best interest of a child and that the immigration
detention of children, whether unaccompanied or together with their families,
constitutes a violation of child rights. Consequently, both unaccompanied children
and families with children should always benefit from alternatives to detention.
__________________
10
18/24
CMW/C/GC/2, para. 2; Inter-American Court of Human Rights, Vélez Loor v. Panama,
para. 171; Inter-American Court of Human Rights, Pacheco Tineo v. Bolivia, para. 131; and
Court of Justice of the European Union, Sélina Affum v. Préfet du Pas-de-Calais.
16-13509