blog_unGENEVA (30 October 2014) – The UN Human Rights Committee—the body of independent experts that monitors implementation of the International Covenant on Civil and Political Rights (ICCPR)—has issued an authoritative new commentary on the most fundamental international human rights law pertaining to immigration detention, Article 9 of the ICCPR (liberty and security of person). According to Mr. Gerald Neuman, Committee member and rapporteur of the commentary which has now been adopted by the Committee, “arbitrary detention is a profound threat to liberty and to the enjoyment of all other rights.”


Article 9 :

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.


The General Comment, which has been called “the most important General Comment in the history of the UN Human Rights Committee”, explores when and how it is justified to deprive a person of their liberty, and what obligations do States have to avoid people being unlawfully or arbitrarily detained. It codifies the Committee’s work over the past three decades on this issue to give government officials, legal practitioners, human rights monitors and civil society a full understanding of the Committee’s views.

The General Comment covers a wide range of issues under Article 9, including the definition of arbitrary detention and the procedural safeguards necessary for avoiding unlawful and arbitrary detention. There are a number of sections specific to the use and limits of detention for migration control purposes, including:


Application of Article 9 to refugees, asylum seekers and migrants: (para. 3)

  • Article 9 guarantees [liberty and security] to everyone. “Everyone” includes, among others, girls and boys, soldiers, persons with disabilities, lesbian, gay, bisexual and transgender persons, aliens, refugees and asylum seekers, stateless persons, migrant workers, persons convicted of crime, and persons who have engaged in terrorist activity.


Immigration control: (para. 18)

  • Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in light of the circumstances, and reassessed as it extends in time. The decision must consider relevant factors case-by-case, and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties, or other conditions to prevent absconding; and must be subject to periodic reevaluation and judicial review.
  • Decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health.
  • Any necessary detention should take place in appropriate, sanitary, non-punitive facilities, and should not take place in prisons.
  • The inability of a State party to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention.


The General Comment was drafted over two years in public meetings. Prior to commencing the process the Committee had discussions with interested parties and over the period received a substantial number of written submissions from civil society, States, lawyers, UN bodies, UN organisations and specialized agencies, including the International Detention Coalition.



General Comment No.35: Article 9: Liberty and security of person

UN Press Release: Human Rights Committee clarifies limits on detention

IDC Submission: Draft General Comment No. 35 on Article 9 of the International Covenant on Civil and Political Rights (14 October 2013)

Related Story: UN Human Rights Committee issues draft general comment on the right to liberty