Seminar on Migration Legislation

1. Seminar on Migration Legislation Ministry of Foreign Affairs of Guatemala 15 – 16 February 2007

2. Detention

3. What is detention? • According to the UNHCR definition, detention consists in: “confinement in severely limited or restricted spaces, including prisons, closed camps, detention facilities or transit areas in airports where freedom of movement is substantially limited, where the only opportunity for leaving said restricted area is to leave that territory.”

4. Justification to Detain: Use of Detention as a Migration Policy As an expression of national sovereignty; For justified security reasons; As a measure to dissuade asylum seekers;

5. Specific Reasons to Detain For the purposes of this presentation, we are talking exclusively of the use of detention as part of the migratory framework, as a reaction to illegal entry and stay. Cases of migrants, refugees or asylum seekers committing common crimes – robbery, murder, etc – should be treated within the framework of criminal law, recognizing that each person in the country, regardless of his/her legal status, is required to respect national criminal law, under penalty of justified sanction.

6. How Do States Detain? Mainly based on national laws that allow it; Administrative detention; Criminal detention

7. International Legal Framework – Obligations of States • Art. 9 of UDHR = Nobody can be arbitrarily detained, imprisoned or exiled; • Art. 9 of the Covenant on Civil and Political Rights Covenant on Civil and Political Rights = Prohibition on arbitrary detention or imprisonment; • Art. 10 del Covenant on Civil and Political Rights = Right to humane treatment with respect to the dignity inherent to a person; This right applies equally to all persons, whether legally in the State or not • Art. 12 del Covenant on Civil and Political Rights = Freedom of movement Applicable to persons legally in the territory, enabling limitations on certain basis

8. Regional Legal Framework • The American Convention on HR – The Pact of San José: • Art 7 (1) – Every person has a right to personal freedom and security; • Art 7 (2) – No person shall be deprived of physical freedom except for causes and conditions previously established by the Constitution or the Laws of the Party States; • Art 7 (3) – Nobody can be subjected to arbitrary detention or imprisonment.

9. Framework for Legal and Justified Detentions In order to be considered legal and not arbitrary, a detention must be: • For legitimate reasons; • Necessary; • Proportional; • Subject to review (judicial); • Non discriminatory

10. Procedural Aspects • Right to clear information on the basis of detention; • Right to question the decision to detain; • Neutrality and independence of authority reviewing the decision to detain; • Right to legal assistance;

11. Specific Considerations for the Detention of Migrants • Need to receive information in a language they can understand; • Right to communicate with their Embassies if so desired – particularly important in the case of asylum seekers and refugees who may fear contact with their Embassies

12. Detention Conditions In addition to the legal standards regulating the legal framework of the decision to detain, the duration and regular review of detention, a legal framework exists regarding detention conditions: • Standard Minimum Rules for the Treatment of Prisoners (1955 and 1977); • Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,1988; • United Nations Rules for the Protection of Imprisoned Minors,1990

13. Relevant Considerations for Other Individuals or Groups with Specific Needs Special Cases: • Children (under 18 years of age) • Art 3(1) of the Convention on the Rights of Children = higher interest of the child; • Art 37(b) of the same Convention = detention and imprisonment of children shall be in accordance with the laws and used as a last resource measure and for the shortest period possible.

14. Other Cases with Specific Vulnerabilities • Trafficked persons and victims of traffic - For these persons, the priority objective should be their protection and not their detention; • International law on these issues seeks to ensure detention for crimes committed against traffickers and not for their victims; • Stateless persons

15. Specific Considerations Relevant to the Detention of Asylum Seekers There are certain specific situations relevant to asylum that States should take into consideration: • Art 14 (1) of UDHR – right to seek and enjoy asylum; • Art 31 – prohibition of sanction for illegal entry of refugees arriving directly from territories where their life or freedom were threatened

16. UNHCR Policy on Detention of Asylum Seekers UNHCR position is that detention of asylum seekers is inherently undesirable; Should be avoided whenever possible; Detention should not be used as an obstacle to asylum – persons detained have a right to their requests for asylum to be duly considered, even access to legal assistance, if necessary.

17. Exceptional Circumstances Regardless of its policy against the detention of asylum seekers, UNHCR recognizes situations where detention is justified: • To verify identity; • To determine the elements on which the asylum request is based; • In response to cases of destruction of documents or use of false documents; • To protect national security or public order. Decision No. 44 of the UNHCR Executive Committee in 1986 regarding detention of refugees and asylum seekers; UNHCR Guidelines on criteria and standards applicable to the detention of asylum seekers, February 1999

18. Detention Monitoring • Joint responsibility of States and the international community; • Access by UNHCR and/or the International Committee of the Red Cross or, as necessary, of duly authorized NGOs; • Responsibility of UNHCR (Art. 35 of the 1951 Convention); Recommendations of the Working Group on Arbitrary Detention and the Sub-Commission for the Promotion and Protection of HR.

19. Alternatives to Detention Taking into account the obligation of considering the principles of need and proportionality, the following alternatives to detention should be considered: • Supervised freedom; • Bail; - Community custody – sponsorship or guarantee mechanisms.