International human rights instruments against detention:
General international human rights standards describing the presumption against detention include:
• International Covenant on Civil and Political Rights (1966), Article 9 paragraph 1:
- Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall bedeprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
• European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 5 paragraph 1 under f:
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
• Convention relating to the Status of Refugees (1951), Article 31 paragraph 2:
- The Contracting States shall not apply to the movements of such refugees’ restrictions other than those that are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.
- The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.
• UNHCR ExCom Conclusion No 7 (XXVIII) – 1977, Expulsion, Paragraph (e)
[The Executive Committee] [r]ecommended that an expulsion order should only be combined with custody or detention if absolutely necessary for reasons of national security or public order and that such custody or detention should not be unduly prolonged.
International human rights standards relevant to vulnerable groups such as migrant children, refugees and victims of human trafficking include:
• UN Convention on the Rights of the Child
- Article 3 paragraph 1:
In all actions concerning children, … the best interests of the child shall be a primary consideration.
- Article 22 paragraph 2:
…In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.
- Article 37:
States Parties shall ensure that: …(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
• UN Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), Rule 2:
Juveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules and in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). Deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases.
• UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum-seekers, 1999
Guideline 7: Detention of Vulnerable Persons
Given the very negative effects of detention on the psychological well-being of those detained, active consideration of possible alternatives should precede any order to detain asylum-seekers falling within the following vulnerable categories listed:
• Unaccompanied elderly persons.
• Torture or trauma victims.
• Persons with a mental or physical disability.
In the event that individuals falling within these categories are detained, it is advisable that this should only be on the certification of a qualified medical practitioner that detention will not adversely affect their health and well-being. In addition, there must be regular follow up and support by a relevant skilled professional. They must also have access to services, hospitalisation, medication counselling etc. should it become necessary.
• United Nations Guidelines on Human Rights and Human Trafficking, Guideline 2, paragraph 6:
Ensuring that trafficked persons are not, in any circumstances, held in immigration detention or other forms of custody.
• CoE Convention on Action against Trafficking in Human Beings (No 197), Article 12 paragraphs 1 and 7:
Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery … taking due account of the special needs of persons in a vulnerable position and the rights of children in terms of accommodation, education and appropriate health care.