E/CN.4/2003/85
page 9
Rapporteur further observed that the tendency to arbitrary resort to criminal proceedings for
administrative infractions is more frequent where corruption of immigration officials is
widespread.
19.
Migrants are also liable to administrative detention in connection with violations of
immigration laws and regulations, including staying after the permit has expired, non-possession
of identification documents, using somebody else’s travel documents, not leaving the country
after the prescribed period of time has expired, etc. The objective of administrative detention is
to guarantee that another measure, such as deportation or expulsion, can be implemented. Under
the legislation of some countries, administrative detention is also admitted on grounds of public
security and public order, among others. Unless otherwise specified, this analysis focuses on the
administrative detention of migrants.
Procedural guarantees in the context of administrative detention of migrants
20.
According to the information provided to the Special Rapporteur, under the legislation of
many countries, those detained under judicial proceedings enjoy far more guarantees than those
held in administrative detention. In some countries migrants who are the subject of judicial
proceedings have the right to free legal counsel and interpretation, while the costs of these
services (or of one of them) must be borne by the alien in administrative proceedings. The right
to judicial or administrative review of the lawfulness of detention, as well as the right to appeal
against the detention/deportation decision/order or to apply for bail or other non-custodial
measures, are not always guaranteed in cases of administrative detention.
21.
The Special Rapporteur was informed that grounds for detention of migrants vary greatly
from country to country and within the same country according to the infraction or offence of
which migrants are suspected. In several countries the legislative criteria for administrative
detention allow for a high degree of discretion in ordering it: foreign nationals can be detained
when immigration officers have “reasonable” grounds to believe that the person is inadmissible,
is a danger to the public, that the individual is unlikely to appear for an examination or a hearing,
or where the officer is not satisfied about identity of the person. This often leads to situation in
which migrants themselves have to prove to the satisfaction of officials circumstances relating to
their documentation, entry, or migratory status in order to avoid deprivation of liberty.
22.
The high degree of discretion and the broad power to detain accorded to immigration and
other law enforcement officials can give rise to abuses and to human rights violations. The
failure to provide legal criteria can result in de facto discriminatory patterns of arrest and
deportation of irregular migrants. The Special Rapporteur was informed that at times migration
authorities stop migrants at the border and take them arbitrarily to the police station where they
are asked for money or sexual favours in exchange for their release. Cases of prolonged
detention because of refusal to pay were reported. Information received by the Special
Rapporteur shows patterns of discrimination whereby migrants belonging to certain ethnic
groups or of a specific nationality are more likely to be intercepted and detained than others.
Furthermore, the Special Rapporteur personally observed that migration and other police
authorities with vast power to detain are often not adequately trained. In some instances
migrants have been requested to produce documents other than or in addition to those prescribed
by law.