Since the adoption of the Universal Declaration of Human Rights in 1948, the right to personal liberty has been taken up in various international treaties. This right is one of the main frameworks for addressing the arbitrary detention of people on the move.
As part of migration management, governments around the world carry out various actions as part of state policy, one of which is detention.
IDC has documented the various detrimental effects of immigration detention, including the criminalisation of migrants (including those in need of international protection), psychosocial effects on individuals and their communities, human rights violations, as well as high costs to governments.
“Irregular migration is not a choice of the people, but a consequence of the policies and actions of the state.”
Therefore, international standards support the elimination of immigration detention, and one of the strategies to achieve this is to limit its application only as an exceptional measure of last resort. This principle has been taken up in various countries and is enshrined in their legal frameworks; however, there are several challenges in its implementation.
How can the principle of last resort for immigration detention be applied?
In order to ensure that states gradually eliminate and put a complete end to the use of immigration detention, there are some key advocacy actions that can be taken up by legislative actors, public officials or civil society organisations themselves.
Several international instruments prohibit immigration detention for various groups, such as children and adolescents, asylum seekers or people in vulnerable situations, such as pregnant women, nursing mothers, elderly people, people with disabilities, LGBTQI people, or survivors of human trafficking, torture and other serious violent crimes.
In the Global Compact for Safe, Orderly and Regular Migration, States have committed to prioritise non-custodial alternatives consistent with international law, and to adopt a human rights-based approach to any detention of migrants, where detention is only used as a last resort.
The exceptionality of detention must be based on an individual and context-specific assessment, an analysis of all options, and the decision to opt for detention must be lawful and demonstrate a legitimate aim.
Based on the experiences of its members and partners, IDC set out to compile promising practices in the application of the principle of last resort around the world, including examples of national legislation and its possible effect on the use of detention as an immigration control measure.
Find out more:
We invite you to read our briefing paper – Immigration Detention as an Exceptional Measure of Last Resort – to learn more about the international standards in which the principle of last resort is raised, as well as some promising practices, in order to encourage further progress on this issue.