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that are reasonable and realistic. The use of open centres, directed residence or
special accommodation should be developed, with open centres preferred over
more restrictive alternatives.
95. Non-custodial measures, such as reporting requirements, should always be
explicitly considered before resorting to detention, with the least restrictive
measures considered first. The application of alternative measures must itself
be governed by international human rights standards, including the basic
principles of legality, necessity and proportionality, as well as
non-discrimination. Alternative measures must take into account the particular
situation of irregular migrants and asylum-seekers, including their frequently
unstable financial or housing situation. If any measure is applied unnecessarily
or disproportionately, in a discriminatory manner or without due regard to
individual factors such as the particular vulnerability of an individual, it could
amount to a restriction inconsistent with international human rights standards.
Safeguards surrounding alternatives to detention should be as rigorous as those
applied to situations of detention, including ensuring that the alternative
measure is established in law, is non-discriminatory in purpose and effect and is
subject to judicial review, and that the migrant has access to legal counsel.
States should always use the least restrictive means necessary as alternatives to
detention.
96. States should endeavour to develop these alternatives in consultation with
local non-governmental organizations with expertise in meeting the needs of
migrants. This could be done, for example, through joint initiatives between
Government authorities and non-governmental organizations for release and
supervision of irregular migrants.
E.
1.
Protecting specific groups
Protection of asylum-seekers
97. The Special Rapporteur recommends the development of standardized
procedures to ensure access to asylum procedures as well as an assessment of
the situation in the country of origin or habitual residence of the rejected
asylum-seekers before deciding on their repatriation. In this regard, States
should follow the several country-specific guidelines issued by UNHCR in order
to avoid returning rejected asylum-seekers whose appeals have been exhausted
to countries where they may be at risk of human rights violations.
98. States should not consider asylum-seekers as irregular migrants and
should follow the guidance provided by UNHCR not to detain asylum-seekers
but to house them in open reception centres.
99. States are encouraged to incorporate gender and age considerations into
their asylum determination procedures.
2.
The protection of children
100. States should ensure the protection of the child in all migration-related
circumstances regardless of his or her individual or family immigration status
and take the best interest of the child as a primary consideration in all
migration-related initiatives and actions concerning children at all levels.
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