In 1991, the former UN Commission on Human Rights established the Working Group on Arbitrary Detention. In 1997, the Commission extended the Group’s mandate to include investigating arbitrary detention of migrants and people seeking asylum. Accordingly, the Group created a list of criteria to determine which cases of immigration detention count as ‘arbitrary’. These criteria were adopted in 1999 as Deliberation No. 5.
In light of the increase in global immigration detention, in 2017 the Group decided to publish a revised version of Deliberation No. 5. Based on existing jurisprudence, the new version will guide future courts and tribunals in determining the legality of detention. It will also serve as a reference for immigration officers as they make decisions on the ground. Released on 7 February 2018, this revised version coincides with the 70th anniversary of the Universal Declaration of Human Rights.
Two ‘overarching rights’
The Revised Deliberation is governed by two key rights:
- The right to personal liberty. This is an absolute prohibition of arbitrary detention. The Deliberation emphasises that popular justifications – including national emergency and public security – do not in any way alter this prohibition.
- The right to seek and enjoy asylum. Criminalization of migration is prohibited by Deliberation No. 5. This extends to all forms of migration, whether irregular or regular.
When is immigration detention arbitrary?
The revised document stresses that detention during migration proceedings must only be applied as an exceptional measure of last resort.
In order for immigration detention to be permitted, the authorities must meet the following requirements:
- Due process must be followed at all stages. Proceedings must occur before a judicial authority, according to a process prescribed by law. Detained persons must have access to avenues to challenge their detention.
- Reasonableness must dictate the decision to detain. To be reasonable, detention must be in pursuance of a legitimate aim – for example, identification of a person at risk of flight. A list of legitimate aims must be included in a piece of legislation.
- Detention must be absolutely necessary to achieving the intended purpose.
- The inherent seriousness of detention must be proportionate to the situation in question. Immigration officers should consider alternatives when making a decision about whether to detain a person.
- Detention must be for the shortest period possible, with a maximum period prescribed by legislation. Indefinite detention is always arbitrary, and where a detained person’s release is complicated by issues out of their own control – e.g. unavailability of transportation – they must be released.
What rights do people in immigration detention have?
The Deliberation gives detained migrants extensive protections. These protections include:
- the same rights given to those in criminal detention
- freedom from any discrimination
- the right to be informed in writing of the grounds for their detention, its duration, and their ability to challenge its legality; and
- the right to be informed of their right to seek asylum and ways in which to do so; and
- the right to be informed of their right to contact their consulate, which must be facilitated by the detaining authorities.
Detaining authorities should ensure essential services are available, including:
- legal representation
- medical care, including mental health care; and
- telephone and email services for communicating with the outside world.
Essentially, people in immigration detention must be treated with humanity, respect and dignity. Governments should not use detention as a tool to discourage asylum applications.
Dealing with vulnerable migrants
The Revised Deliberation is clear that immigration detention of children is never permitted. Nor may children be separated from their parents because their parents are in immigration detention. In such instances, an alternative to detention must be used for the entire family.
Detention of other vulnerable migrants – for example, pregnant women and transgender individuals – must not take place. Women must also be separated from men within detention facilities, unless as a family unit.
Immigration detainees must not be mixed with criminal detainees. Detention facilities run by private companies are still the complete responsibility of the detaining State.
Importantly, immigration detention centres must be open to relevant organisations, including the UNHCR.
What the Revised Deliberation means for Australia
The publication of this document reflects a global shift away from detention as a means of coping with migrant inflows.
In contrast to the original, the revised version portrays detention as a last resort in the resolution of immigration issues. It introduces standards of necessity, reasonableness and proportionality, which also impose on detaining authorities a stricter obligation to consider the appropriateness of detention.
With specific articles relating to transparency and vulnerable detainees, this Revised Deliberation represents the lessons learnt from inappropriate use of detention in the migration context. Far more extensive than the 10 Principles contained in the original, this Revised Deliberation calls into question Australia’s decades-long reliance on immigration detention.
Author: Johan Ariff