Slide 1

Salvador Gutiérrez

National Officer

Regional Office for Central America andMexico

Detention, Rejection, and Removal of Migrants:

International Standards for Public Policy-Making

International Organization for Migration

Tegucigalpa, Honduras – February 11, 2011

Seminar-Workshop on HumanRights of Migrant Populations

Contents of thePresentation

1.Human Rights within the Framework ofDetention, Expulsion, and Deportation

2.International Standards in Matters ofDetention of Migrants

3.International Standards in Matters ofExpulsion and Deportation of Migrants

Section 1: Human Rights within theFramework of Detention, Expulsion, andDeportation of Migrants

Tegucigalpa, Honduras, February 11, 2011Salvador GutiérrezIOM, National Officer

Contents

•Characteristics of Human Rights

•Human Rights within the Framework ofDetention, Expulsion, and Deportation

•Human Rights within the Framework ofMigration Management

Human Rights within the Framework ofDetention, Expulsion, and Deportation– Characteristics of Human Rights

Human Rights are:

Inalienable – Cannot be seized from a person andtherefore, are not dependent upon status.

Universal – Should be applied withoutdiscrimination as to race, skin colour, gender,language, religion, political opinion, national or socialorigin, place of birth, or status.

Not absolute – Some rights are revocable undercertain circumstances (for example: in emergencysituations, Art 4. ICCPR). However, somefundamental rights may not be suspended, that is,they are absolute.

What are the characteristicsof human rights?

Human Rights within theFramework of Rejection, Detention,and Repatriation

•States commit to respect the civil and political rightsof “all individuals within their territory and subject totheir jurisdiction” (ICCPR).

•Expanded Non-discrimination Clause: Thesederogations with differentiation criteria may not bebased on race, colour, language, gender, or socialorigin.

•In cases of public emergency, these rights may berevoked – and differentiating between nationals andnon-nationals may even be allowed (ICCPR).

What are some of the mostrelevant human rights relatingto this matter?

Human Rights within theFramework of Rejection, Detention,and Repatriation

•Prohibition of torture;

•Prohibition of unjustified detention;

•Prohibition of discrimination based onrace and gender;

•The right of the detained person to betreated with humanity;

•Principle of “non-refoulement”.

What human rights may neverbe revoked?

Human Rights within the Frameworkof Migration Management

In exercising its sovereignty, the State hasthe power to regulate:

Granting nationality (The Hague Convention of1930);

Requirements for admitting non-nationals;

Expulsion and deportation of non-nationals;

Detention.

What power does the Statehave in exercising itssovereignty?

Fundamental Principle:

Migration management should be implemented withfull respect for human rights and in strict compliancewith the international commitments taken on by theState.

Human Rights within the Frameworkof Migration Management

Sovereignty

HumanRights

¿What are the limits to theexercise of sovereignty?

Section II: International Standards inMatters of Detention of Migrants

Tegucigalpa, Honduras, February 11, 2011Salvador GutiérrezIOM, National Officer

Contents

•International Standards in Matters ofDetention

•Regional Standards in Matters ofDetention

International Standards inMatters of DetentionInternational Instruments

• Freedom of movement (ICCPR, Art. 12;International Convention on the Rights of AllMigrant Workers and Members of their Families,Art. 8; UNCRC, Art. 10);

– The right to leave any country and the right toreturn to the home country;

• Freedom against arbitrary detention (ICCPR);

• Protection against arbitrary detention(International Convention on the Rights of AllMigrant Workers and Members of their Families,Art. 16, 17(3)).

•UDHR

- The right to life, liberty, and the security of the person (Art3);

- Prohibition against arbitrary detention (Art 9).

• Principles established in Art. 9, ICCPR (the right toliberty)

• Arbitrary detention is prohibited.

-Detention may only be established based on and inaccordance with previously established procedures;

-The right to initiate proceedings before a Court with theaim of establishing the legality of detention;

-The right to claim compensation if the detention was illegal.

International Standards inMatters of DetentionInternational Instruments

•Protecting the Family, Art. 17 & 23(ICCPR);

•Protecting the Family (ICESCR, Art.;International Convention on the Rightsof All Migrant Workers and Membersof their Families, Art. 14 & 44; UNCRC,Art. 10(1), 7, & 16);

•The right to health (ICESCR, Art. 12).

International Standards inMatters of DetentionInternational Instruments

UNCRC, Article 37.

•Detention is a measure of last resort and shouldbe for the shortest established period of time.

•Every child in detention should be treated consideringthe needs of persons of the child’s age.

•Children shall be separated from adults, unless this isagainst the Child’s Best Interest, and shall have theright to keep in touch with their families.

•Children shall have the right to access without delay tolegal assistance and other appropriate assistance, aswell as to challenge legality and to a prompt decision.

International Standards inMatters of DetentionInternational Instruments

Principles for the protection of all persons subject to any form of detention orimprisonment.

Principle 11

1. No one shall be kept in detention without the real possibility of being heardwithout delay by a judge or other relevant authority.

2. Every detained person and his/her attorney shall be immediately and thoroughlyinformed about the detention order, together with the reasons.

Principle 12

1. The following shall be duly stated:

a) The reasons for detention; b) The time of detention and transfer to the detentioncentre, as well as the time of the first appearance before a judge or other relevantauthority; c) The identity of officers in charge; d) Accurate information about thedetention centre.

Principle 16

The detained or imprisoned person shall also be promptly informed about his/herright to communicate through the appropriate means with the consular officeor the diplomatic mission of his/her own State.

International Standards inMatters of DetentionOther International Guidelines

American Convention on Human Rights,1969

Article 7.1 Every person has the right to liberty…

American Declaration of the Rights andDuties of Man, 1948

Article I. Every human being has the right to life,liberty, and the security of his person.

Regional Standards in Matters ofDetentionRegional Instruments

•Mr. Vélez Loor, of Ecuadorian nationality, wasarrested by the Panamanian police force onNovember 11, 2002 in the Darién for enteringthe country in an irregular manner and washanded over to immigration authorities.

•He was condemned to two yearsimprisonment for repeatedly infringingimmigration legislation and was deprived of hisliberty for 10 months before beingdeported.

Regional Standards in Matters ofDetentionThe Vélez Loor Case

• The Court ruled that States may regulate the entry andexit of their territory provided that these measures arenot against the American Convention on HumanRights. Criminalization of migration flows isincompatible with the Convention.

•Measures to deprive the person of his liberty due toincompliance with immigration laws should only beused – and for the shortest possible period –when necessary and proportional and when theaim is to ensure the presence at the administrativeor judicial hearing or to ensure enforcement of adeportation order.

Regional Standards in Matters ofDetentionThe Vélez Loor Case

•When detention is ordered by an administrativeauthority, a review by a judge or a Court is afundamental requirement in order to ensure anappropriate control of the respect for fundamentalrights.

•The right to consular assistance in cases ofdepriving a non-national of his/her liberty. Threeessential components of this right: 1) Notifying thedetained person of his/her rights; 2) Effective accessto communication with relevant consular officers;and 3) Consular assistance itself.

Regional Standards in Matters ofDetentionThe Vélez Loor Case

•In cases where detention is indispensable, migrantsmay only be detained at specific facilities andnot in common prisons or locations where they maybe together with persons that have been accused ofor condemned for criminal actions.

•Visible information in several languages about thelegal status of the detained persons, names andtelephone numbers of Consulates and of legaladvisors and organizations to which thesepersons can resort.

Regional Standards in Matters ofDetentionThe Vélez Loor Case

Section III: International Standards inMatters of Expulsion and Deportation ofMigrants

Tegucigalpa, Honduras, February 11, 2011Salvador GutiérrezIOM, National Officer

Contents

•International Standards in Matters ofExpulsion and Deportation

•Practical Experiences

“An alien lawfully in the territory of a State Party to thepresent Covenant may be expelled therefrom only inpursuance of a decision reached in accordancewith law and shall, except where compellingreasons of national security otherwise require, beallowed to submit the reasons against his expulsionand to have his case reviewed by, and berepresented for the purpose before, the competentauthority or a person or persons especially designated bythe competent authority.

(Art. 13, ICCPR)

Regional Standards in Matters ofExpulsion and DeportationInternational instruments

•When detention is ordered by an administrativeauthority, a review by a judge or a Court is afundamental requirement in order to ensure anappropriate control of the respect for fundamentalrights.

Regional Standards in Matters ofExpulsion and DeportationInternational instruments

Guarantees relating to expulsion (ICCPR, Art. 13;International Convention on the Rights of All MigrantWorkers and Members of their Families, Art. 22 & 56;Convention against Torture, Art. 3).

•Migrants have the right to leave any country, including theirown country.

•There is no international obligation on States to permitentry of non-nationals to their territory.

•The only persons that have the absolute right to returnto their country are nationals of this country (no one shouldbe arbitrarily dispossessed of the right to enter his/her owncountry, Art. 12, Sec. 4, ICCPR).

Regional Standards in Matters ofExpulsion and DeportationInternational instruments

•In principle, the State has the right to removenon-nationals from its territory.

•Restrictions:

–Principle of non-refoulement

–The “Child’s Best Interest”

–Procedural restrictions in accordance withinternational law (Art. 13, ICCPR)

Regional Standards in Matters ofExpulsion and DeportationInternational Instruments

Art. 33, Convention relating to the Status of Refugees, 1951

States should never place refugees at the borders of territorieswhere their lives or liberty are endangered because of race,religion, nationality, belonging to a given social group, or politicalopinions.

Art. 3 (1), Convention against Torture and Other CruelInhuman or Degrading Treatment or Punishment, 1984

States should not remove or deport a person to another Statewhen there is justifiable reason to believe that this person will bein danger of being tortured.

•To establish this, authorities should take into account all therelevant considerations, including the existence, in the State inquestion, of a persistent scenario of manifest, evident, ormassive human rights violations.

Regional Standards in Matters ofExpulsion and DeportationInternational Instruments

The Child’s Best Interest (Article 3, UNCRC)

•A primary consideration in all actions involvingchildren, including the search for short-term and long-term solutions;

•The identity of the child needs to be determined,including nationality, ethnic and cultural origin,vulnerabilities, and protection needs;

•Identifying and designating a child guardian as soon aspossible.

Regional Standards in Matters ofExpulsion and DeportationInternational Instruments

The Right to Life and Full Development (Article 6,UNCRC)

•The right to life, survival, and development.

To the Family Unit (Article 16, UNCRC, Articles 14 &44, International Convention on the Rights of AllMigrant Workers and Members of their Families)

•Family as a fundamental group unit of society is subjectto protection by the State.

•Reunification of the child with his/her family, exceptwhen this is not in the Child’s Best Interest.

Regional Standards in Matters ofExpulsion and DeportationInternational Instruments

Evolving Capacities of the Child (Article 5,UNCRC)

•The child as an active subject of rights.

Participation (Article 12, UNCRC)

•The views of the child should be given “dueweight in accordance with the age and maturityof the child”.

Regional Standards in Matters ofExpulsion and DeportationInternational Instruments

Directive 2008/115/EC of the European Parliament andCouncil, dated December 16, 2008 about common standardsand procedures in Member States for the return of foreignnationals staying in community territory in an illegalmanner.

Scope:

Nationals from third States who have stayed in the territory of aMember State in an illegal manner.

Exceptions

•The possibility of obtaining legal residence in another Member State.

•The right to stay for “compassion, humanitarian, or other, similarreasons”

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

Voluntary Departure, Art.7

•In compliance with a removal order;

•Is preferable to forced return;

•Obligation to grant an appropriate period for a voluntarydeparture (7-30 days).

The possibility of granting a shorter period fordeparture when:

• A real risk of evasion exists;

•A risk for public or national security exists.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

Expulsion, Art. 8

Conditions:

•Expiration of the period established for voluntary return.

Use of coercive measures in case the person resistsexpulsion:

•As a measure of last resort;

•Proportional;

•Reasonable use of force;

•In accordance with fundamental rights, maintaining dignity andphysical integrity.

Postponing Removal, Art. 9:

•Mandatory: If the principle of non-refoulement has been violatedand for the duration of a suspension order.

•Discretionary: Under specific circumstances, for example: aperson’s physical or mental state; technical reasons; failure toidentify the person to be removed.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

Safeguards until the return, expulsion, anddeportation has been implemented:

•Respect for the principle of family unification;

•Emergency healthcare and essential treatment ofillness;

•Access to basic education for boys, girls, andadolescents;

•Meeting special needs of vulnerable persons.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

Conditions for Deportation, Art. 10:

•Before a decision is issued: Obligation for the relevantspecial protection authority to intervene considering theChild’s Best Interest.

•Certainty that the boy, girl, or adolescent shall be returnedto some member of his/her family, a designated childguardian, or institutions with appropriate reception facilitiesin the State to which the child is returned.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

•Obligation of executing a removal order, butno obligation of granting legal status if thereturn is not possible;

•An extremely short period of time toadequately prepare the return (7-30 days);

•Lack of an adequate evaluation of the qualityof assistance provided for boys, girls, andadolescents in the country where they arereturned;

•The period for delaying the entry process incase of deportation is usually fixed.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

How has the Directive beenevaluated?

Readmission — Act by a State accepting the re-entry ofan individual (own national, third-country national, orstateless person), who has been found illegally entering orbeing present in another State.

Readmission Agreement – Agreement whichaddresses procedures for one State to return aliens in anirregular situation to their home State or a State throughwhich they passed en route to the State which seeks toreturn them.

IOM Glossary, 2004

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

–Establishes frameworks and procedures for forcedremoval of migrants through which bilateralcommitments are established and taken on;

–Special protection mechanisms for vulnerablemigrants could be established;

–More effective collaboration between States could beagreed on to reduce the period of detention;

–Mechanisms could be established to facilitateidentification and certification of nationality.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

–Mechanisms could be established for one or theother country to issue documents for the return;

–Repatriation costs could be shared;

–Maximum time limits could be established for thedifferent stages of the procedure.

Regional Standards in Matters ofExpulsion and DeportationPractical Experiences

Thank You!