On 23 September 2021, the Committee on Migrant Workers (CMW) published its 20-page General Comment No.5 (GC5) on migrants’ rights to liberty and freedom from arbitrary detention. This followed an extensive consultation process, which included dozens of submissions from governments and NGOs, including IDC. 

As States around the world increase their use of immigration detention and further criminalise migrant communities, the GC5 comes at a crucial moment and provides an opportunity for the global movement to end immigration detention to align on values, principles and rights-based advocacy. In particular, paragraph 47 of the GC5 “considers that States should take measures to abolish immigration detention.” IDC believes this is a key declaration of the GC5, and welcomes its alignment with our vision for a world where immigration detention no longer exists and people who migrate live with rights and dignity.

Additionally, the GC5 calls on governments to expand their use of alternatives to detention (ATD), and prioritise community-based non-custodial measures that allow people to live freely. It also reiterates international law by calling for an end to the immigration detention of children, and others experiencing vulnerabilities. Further, the GC5 applies beyond migrant workers, and is inclusive of all migrants, asylum seekers, refugees, stateless people and others on the move. As IDC considered the implications of the GC5, we connected with some of our members and partners across regions to hear about realities on the ground, as well as their perspectives on the GC5 and how it might support their advocacy efforts. 

Right to Liberty & Protection Against Arbitrary Detention 

The GC5 prioritises ending arbitrary detention, which is prohibited under international law. It emphasises that mandatory detention is arbitrary, calls for individualised assessment, and to ensure that people are detained for the shortest possible period.

The members and partners we spoke with reflected that some countries do require individualised assessment by law, however this doesn’t commonly occur in practice. On the other hand, some countries do not have protection principles under immigration law, and no standards for length of detention either. As a result, time in detention is often directly related to the speed of deportation processes. Further, in some countries with mandatory detention, there is no basis for individualised review. 

Concerningly, many countries continue to use detention as a deterrence mechanism to create fear in migrant communities, despite the fact that there is no evidence to show that detention has a deterrence effect. 

Non-Detention of Children

The GC5 reaffirms international law and states that the detention of children, whether travelling alone or with their families, is never in their best interests, and it is always unnecessary and disproportionate. The GC5 urges States to prohibit child immigration detention by law, and fully eradicate it in practice.

The members and partners we spoke with reflected that some countries do have internal government processes for releasing children. However, because these processes are not law, children are often still detained in practice. In many cases, even if there is a prerogative by the government to end child immigration detention, the migration and child protection agencies, or other institutions charged with implementing sustainable screening and support processes are often underfunded.

Obligation to Implement Alternatives to Detention (ATD)

The GC5 asserts that States have an obligation to implement all available non-custodial alternative measures in each case, in accordance with the right to liberty and principles of necessity and proportionality. This includes ensuring that sufficient resources are allocated to implement ATD.

The members and partners we spoke with reflected that civil society is often relied upon to resource ATD. While there may be government funds for some migration related schemes, for many countries the community programmes that provide holistic case management and care are largely operated by faith-based groups, NGOs, and UN agencies. For ATD to be effective, sufficient resources must be dedicated to supporting diverse needs and minimum standards must be in place, including access to documentation, basic services, case management support and independent legal assistance. However, government resourcing for community-based ATD continues to not be prioritised in many cases.

Moving Forward: Using the GC5 in Advocacy

While not legally binding, IDC believes that the GC5 is a significant political and progressive statement from global leadership about issues that directly impact communities on the ground everyday. It offers organisations and groups an additional tool to leverage their ongoing advocacy. The members and partners we spoke with shared a few examples of how the GC5 will be useful:

Looking forward, the GC5 needs to be brought down to the ground, to communities. We must ensure that global standards are translated into inclusive and accessible forms, such as short summaries, social media materials, and videos. For example, alongside members and partners in Mexico, IDC has initiated a campaign to end the immigration detention of asylum seekers. The materials for this campaign include excerpts from the GC5, with the aim to connect global standards to the realities of detention, as well as raise awareness of this new resource for the movement. Follow @idcmonitor on Twitter, and feel free to utilise the materials! 

Finally, and most critically, we must ensure that global standards are underpinned by lived experience, and we must be guided by the leadership of people and communities directly affected by immigration detention, in all of their diversity.

IDC strongly applauds the CMW for their incredible leadership in this effort, and for providing all of us who are part of the global movement to end immigration detention with this new and useful resource. IDC is currently engaged in research to identify promising ATD practices across regions, and will share these findings in early 2022. Ahead of this, IDC will also release a position paper on how to use ATD as a strategy to reduce and end immigration detention; please stay tuned!

 

We would like to express our gratitude to the following IDC members and partners for sharing their time and thoughts on the GC5 with us over the past few weeks: Oktay Durukan, Refugee Rights Turkey; Adisorn Kerdmongkol, Migrant Working Group, Thailand; Puttanee Kangkun, Fortify Rights & Coalition for the Rights of Refugees and Stateless Persons, Thailand; Pinar Aksu, Refugees for Justice & Maryhill Integration Network; Miska Pillay, Lived Experience Campaigner; Alejandra Macias, Asylum Access Mexico; Elba Coria, Kids in Need of Defense.