E/CN.4/2005/85
page 10
recommendation on non-citizens. She recalled the importance of the principle of equality and
non-discrimination in the formation of international human rights law relating to migration and
the importance of the provisions on non-discrimination established in the main human rights
instruments for the correct application of domestic legislation on foreigners (A/59/377, para. 40).
29.
The administrative detention of undocumented immigrants, for example, violates the
principle of non-discrimination if these individuals are confined in detention centres without
being able to challenge the legality of their detention in court. In the Special Rapporteur’s view,
they are discriminated against in the exercise of their basic right to freedom and legal security
and are arbitrarily denied the right to effective recourse against their detention by the police.
This situation has become widespread as States have applied special legislation to combat
terrorism which restricts or suspends the procedural guarantees that every detainee should
enjoy (ibid., para. 37). Many of these measures lead to problems of discrimination
against migrants and the Special Rapporteur therefore emphasizes that they must be
compatible with international human rights obligations. It is also partly as a result of such
measures that the perception of immigration as a matter of security continues to gain ground,
eclipsing all other aspects of the issue, including human rights (E/CN.4/2003/85, paras. 25-38;
A/58/275, para. 6; A/59/377, para. 55). At the same time, in certain European countries,
international terrorism is creating a climate of mistrust and suspicion of foreigners that affects
immigrants in particular and, despite the efforts of many Governments, attacks on minorities are
on the rise.6
30.
The Special Rapporteur informed the Committee that in many countries immigrants bear
the brunt of racist or xenophobic backlashes and that a great many of the communications she
transmits to Governments concern cases of discrimination against migrants in the application of
national legislation and international human rights standards.7 She expressed concern at the
campaigns conducted in some political quarters and the media in several European countries, to
criminalize immigration by making a direct link between immigration and high crime rates. In
the Special Rapporteur’s view, even though the facts frequently give the lie to this image,
political rhetoric and information of this kind promote xenophobic stereotypes and racist
sentiment. At its sixty-fifth session, in August 2004, the Committee on the Elimination of Racial
Discrimination adopted general recommendation XXX, on discrimination against non-citizens,
whose significance was highlighted by the Special Rapporteur in her last report to the General
Assembly (A/59/377, para. 37).
31.
With regard to discrimination in employment and work, the Special Rapporteur would
like to point out that a number of trade unions in host countries are adjusting to the labour
situation of migrant workers. Trade unions are aware of the changing make-up of the workforce
in their countries and many of them have started working more closely with groups of immigrant
workers. Unions have first-hand experience of these workers’ labour and employment
conditions and the risks and hazards they face, and they understand that denying the existence
of discrimination or belittling its importance often entrenches abusive practices in the labour
market. Trade unions have a major role to play in asserting migrant workers’ rights and
eliminating discrimination in access to the labour market, by running information and
counselling drives on labour rights or by reporting violations or denials of migrant workers’
rights, including to international bodies such as the Committee on Freedom of Association of the