Detention conditions and standards

Humanity and Respect

All persons deprived of their liberty must be treated with humanity and with respect for the inherent dignity of the human person.[1]  This includes minimum standards with relation to accommodation, personal hygiene, clothing, bedding, food, exercise, access to newspapers, books and religious advisers, communication with the outside world and medical services.[2]


[1] International Covenant on Civil and Political Rights, article 10, paragraph 1; Human Rights Committee, general comment No. 21 (1992) on humane treatment of persons deprived of their liberty; The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 17, para. 1.

[2] See The Standard Minimum Rules for the Treatment of Prisoners.

Non-punitive

Immigration detainees should never be detained in prisons or other prison-like settings.  This includes, but is not limited to: prison uniforms; highly restricted movement a lack of outdoor recreation; monitored or restricted physical contact with family and friends; or lack of contact with the outside world.[1]

Migrants in places of immigration detention are frequently denied a number of key procedural safeguards, such as prompt access to a lawyer, interpretation/translation services, contact with family or consular representatives, and avenues for challenging the lawfulness of their detention.[2]


[1] Report of the Special Rapporteur on the human rights of migrants, François Crépeau, Detention of migrants in an irregular situation, A/HRC/20/24

[2] Report of the Special Rapporteur on the human rights of migrants, François Crépeau, Detention of migrants in an irregular situation, A/HRC/20/24

Notification

All detained persons must be notified of the reasons for their detention in writing, in a language understood by the migrant, stating the grounds for the detention, and setting out the conditions to apply for a remedy to a judicial authority.[1]


[1] International Covenant on Civil and Political Rights, Article 9; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Article 16; Working Group on Arbitrary Detention, deliberation No. 5 on the situation regarding immigrants and asylum-seekers

Right to a remedy

Anyone placed in immigration detention must be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention is not lawful.[1]


[1] Article 9, paragraph 4, of the International Covenant on Civil and Political Rights; Article 16, paragraph 8, of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; article 7 of the African Charter on Human and Peoples‟ Rights, article 7 of the American Convention on Human Rights, article 14 of the Arab Charter on Human Rights and article 5, paragraph 4, of the European Convention on Human Rights. This provision is applicable to all deprivations of liberty, including immigration control. The Human Rights Committee, general comment No. 8.

Right to legal assistance

All detained persons have the right to assistance, free of charge if necessary, of legal counsel.[1]


[1] Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

Right to an interpreter

All detained persons have the right to assistance, free of charge if necessary, of an interpreter.[1]


[1] Article 16, paragraph 8, of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; see also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

Right to communicate with the outside world

All detained persons have the right to communicate with the outside world, in particular with family, legal counsel, and consular or diplomatic authorities.[1]


[1] Article 16, paragraph 7, of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations; see also The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Duration and Review

The duration of immigration detention must always be as short as possible, and the decision to keep the person detained must be reviewed periodically. Under no circumstances should immigration detention be indefinite.[1]  If an individual is detained for purposes of deportation, they must be released whenever there is no longer a real and tangible prospect of removal.[2]


[1] Working Group on Arbitrary Detention, deliberation No. 5

[2] Working Group on Arbitrary Detention, (A/HRC/13/30, para. 91).

Women

When women are detained in places of immigration detention, gender-appropriate services must be provided in connection with pregnancy, confinement and the post-natal period.[1]  Additionally, states must account for gender-specific hygiene needs; childbirth and related reproductive health issues; and protection from sexual abuse and other forms of gender violence.[2]


[1] Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women and the Committee’s general recommendation No. 26 (2008)

[2] United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules).

Mental or physical illness or disability

Immigration detention exacerbates existing mental and physical health issues and may cause additional damage to the mental and physical health of detainees.[1] For this reason, persons who suffer from mental illness should never be detained.  In some cases, the continued immigration detention of persons with a mental or physical health concern may amount to torture and cruel, inhuman or degrading treatment or punishment.[2]


[2] In communication No. 900/1999, the Human Rights Committee held that the continued detention of a migrant when the State was aware of his mental condition and failed to take the steps necessary to ameliorate his mental deterioration constituted a violation of his rights under article 7 of the Covenant (the prohibition of torture and cruel, inhuman or degrading treatment or punishment) (para. 8.4).