The Office of the United Nations High Commissioner for Human Rights (OHCHR) has published a new report: In Search of Dignity: Report on the human rights of migrants at Europe’s borders. The report documents the findings of the human rights monitoring missions to transit and border locations in Bulgaria, France, Greece, Italy and the former Yugoslav Republic of Macedonia held during 2016.
Several sections are relevant to immigration detention and alternatives to detention, providing practical guidance to the States visted and European Union insitiutions as applicable.
“The teams encountered poor conditions in detention, some of which could amount to inhuman and degrading treatment. The poor conditions included overcrowding; children being held alongside unrelated adults; frequently dysfunctional toilets or other sanitary facilities; showers in spaces which posed a risk for the safety of women and girls; structures that are unfit for children; lack of adequate and sufficient water and food of nutritional value; and lack of access to quality physical and mental health care and services.” OHCHR report
Report findings include:
- In many countries visited migrants, including children, are subjected to detention practices, including mandatory detention in some jurisdictions. Individual assessments to determine the necessity and proportionality of detention or to identify less restrictive alternative measures were not conducted according to the report.
- the deprivation of liberty contravened national constitutions and international human rights law as there was no legal basis for the detention of migrants beyond an initial 48 or 72-hour time limit.
- Most migrants were held for multiple days, and sometimes weeks or months, in immigration detention facilities and were unaware the reasons for their detention or the possibility of challenging their detention.
- Some previously open reception centres or other facilities had been converted into highly securitized detention centres, where often both adults and children were held.
- The teams raised the need to work with the authorities to develop alternatives to detention.
- Facilities visited did not provide a reception environment or reflect appropriately the administrative nature of immigration detention. The centres were generally heavily securitized; surrounded by razor and barbed wire fences; kept under surveillance by armed police, military or other security guards; and sometimes contained enclosures where, based on age or nationality, migrants were detained separately and unable to move within the detention facility as other migrants.
- Children were subjected to arbitrary and prolonged immigration detention and to abusive treatment and inhuman conditions in detention, without access to education, health services or meaningful recreational activities.
- Attempts to protect the rights of the migrant children encountered during the missions were manifestly inadequate and often detrimental to the effective protection of migrant children’s rights, regardless of whether children were staying in informal, formal, open or closed facilities.
OHCHR made several recommendations for States, including:
- Prevent indefinite or protracted detention of any migrants who cannot be returned and protect them against redetention.
- Make available sufficient and appropriate shelter spaces for migrants in vulnerable situations and not place them in detention facilities.
- End all mandatory detention policies and practices immediately.
- Establish a presumption against immigration detention in law, restating the right to liberty for all persons, regardless of migration status. States should immediately and expeditiously cease the detention of children on the basis of their migration status or that of their parents.
- Ensure that any deprivation of liberty has a legal basis in national law, which defines clearly the legitimate purposes for any detention, its limited scope and duration, and is sufficiently narrow to avoid mandatory detention of a broad category of person.
- Implement robust due process and fair trial guarantees, ensuring that immigration detention is only ordered by a court of law on a case-by-case basis, as an exceptional and last resort measure and for the shortest period of time, after it has been deemed necessary and proportionate, and no suitable non-custodial alternative has been identified. Ensure migrants have access to information, translation, legal aid and assistance, and the possibility to challenge the lawfulness of any deprivation of liberty.
- Ensure and facilitate access and communication for civil society organizations providing legal assistance to migrants held in immigration facilities.
- Develop national action plans to implement human rights-compliant, non- custodial, community-based alternatives to detention based on an ethic of care, inot enforcement.
- End any form of detention of children on the basis of their or their parents’ migration status, including in prisons or police stations.
- Ensure that in all facilities where migrants are held the conditions reflect the administrative purpose for which migrants are being detained. Specifically, States should take measures to ensure that facilities do not resemble prisons and that there is a reasonable balance between the numbers of security staff and those providing services for migrants.
- Ensure sufficient numbers of trained and specialized staff are hired in order to respond to the protection needs of migrants in detention.
- Establish standardized systems for the determination of the best interests of the child, carried out by trained child protection staff, in a child-friendly manner, and guaranteeing children’s rights to express their views freely in all matters affecting them and have their views taken into account in accordance with their age and maturity.
The report also provided a number of concluding recommendations that enable advocacy for alternatives to detention to strengthened. These included:
- Ensure and facilitate unrestricted access of independent monitoring bodies, including national human rights institutions, ombudspersons, national preventive mechanisms and other relevant bodies to all locations under the jurisdiction or effective control of the State and to all information that is required to effectively monitor the human rights of migrants. Monitoring should extend, as applicable, to arrival, shelter and reception of migrants, border processing and interviewing, transfers, detention situations, pre-removal processes, and return processes.
- Enable civil society actors to participate in monitoring and evaluating the human rights impact of governance measures.
- Establish mechanisms by which the implementation of the recommendations from the independent monitoring bodies can be facilitated and ensured.
- Establish accessible complaints mechanisms for migrants to report to without fear of retribution.
- Ensure effective accountability of private actors carrying out migration governance functions, including by adopting or amending legislation to ensure that the actions of private actors do not undermine human rights and that any wrongdoing is sanctioned.
Read the full report here
OHCHR – Full press release