A/65/222
63. The Special Rapporteur has received information on some promising legal
provisions aimed at replacing immigration detention. Information received indicates
that alternatives to immigration detention may vary from cost-effective options
already available in several legal systems such as release on bail, bond and surety,
conditional release, return to custody for specified hours following release for
employment, schooling or other defined purposes, to more innovative schemes such
as open and semi-open centres, directed residence and restrictions to a specified
district. Information received by the Special Rapporteur indicates that examples of
legal presumption against immigration detention are found, inter alia, in the
legislation of Austria, Brazil, Denmark, Finland, Ireland, Lithuania, New Zealand
and Switzerland.
64. The Special Rapporteur also welcomes the adoption of legislation in Panama
(Migration Law No. 3, February 2008, article 93), which explicitly proscribes the
detention of children. These examples illustrate that States alone or in cooperation
with other stakeholders may successfully resort to alternatives to the criminalization
of irregular migration or align their laws with international law and human rights
standards.
65. The Special Rapporteur welcomes the interest and activities undertaken by
international organizations and civil society to explore, together with Member States
and other stakeholders, alternative measures to immigration detention as a way to
help States improve their compliance with their human rights obligations in relation
to the treatment of migrants. In this regard, the Special Rapporteur praises the pilot
project on alternatives to detention for families with children who are awaiting
return that has been carried out in Belgium since October 2008 as a practical and
positive example of greater cooperation between Governments and civil society in
monitoring and evaluation of alternative measures to detention.
IV. Conclusions and recommendations
66. The enjoyment of human rights by migrants, regardless of immigration
status, is a crucial means to ensure equitable human development and social
development and justice for migrants. Migrants can play an active role in the
social and economic development of host countries and contribute to the
development of countries of origin and transit, particularly when their human
rights are fulfilled in a manner that ensures equal opportunities and gender
equality. Human rights, together with gender and age-sensitive strategies,
should therefore feature prominently and systematically as an integral part of
the overall strategy to achieve development in the context of migration.
67. Migration governance should be clearly human-centred, and grounded in
human rights law, and it should therefore recognize the inherent dignity of
every human being, promote equality and the prohibition of discrimination and
fully incorporate the principle of equal opportunities and choices for all so that
everyone, regardless of immigration status, can develop their own unique
potential and have a chance to contribute to development and social progress. 19
__________________
19
10-47488
See Amartya Sen, Development as Freedom, Oxford University Press, 1999; United Nations
Development Programme, Human Development Report 2009: Overcoming barriers: Human
mobility and development.
17