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Report on the Detention of Undocumented Migrants

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Report on the Detention of Undocumented Migrants Compilation of Reports on the Detention of Undocumented Migrants Prepared for: United Nations Special Rapporteur on the Human Rights of Migrants Submitted: January 30, 2012 by Migrants Rights International, compiled by Migrant Forum in Asia ! Compilation Prepared by: Migrants Rights International (MRI), a non-governmental organization and global alliance of migrant associations and migrant rights, human rights, labor, religious, and other organizations which operate at the local, national, regional or international level. MRI seeks to advocate for the respect, protection and fulfillment of the full range of human rights of migrants around the world and to foster unity and inclusion of migrant voices at all levels of policy-making. MRI also has consultative status with ECOSOC. Migrant Forum in Asia (MFA), a membership network of migrant organizations, migrants’ rights advocates, trade unions, faith based organizations and individuals working to protect and promote the rights of migrant workers and members of their families. MFA currently has more than 200 members in 16 countries in Asia. www.mfasia.org For inquiries, contact: Migrant Forum In Asia 85-C Masikap Extension, Central District Diliman, Quezon City 1100 Philippines Telefax: +63-2-4333508 Email: [email protected]; Web: www.mfasia.org Contributors: Migrant Forum in Asia (MFA) National Network for Immigrant and Refugee Rights (NNIRR), USA Platform for International Cooperation on Undocumented Migrants (PICUM) Migreurop Introduction The issue of undocumented migrants in detention has been taken up by many civil society groups and migrants’ rights advocates across the world, as states have become increasingly concerned with undocumented migrants entering, living, and working within their borders. The practice of holding undocumented migrants in detention on the grounds that they lack the necessary documents to enter, reside, and/or work in a country has generated significant debate on the grounds of whether or not this is a just and proportionate response to what is usually a minor administrative offence. States and migrants’ rights defenders take different approaches in looking at the dual issues of detention and deportation. For countries of destination, governments simultaneously view migrants as valuable sources of labour and as threats to national security regimes, implementing policies to attract (“desirable”) migrants and deter (“undesirable”) others. Draconian immigration laws and detention regimes that do not account for the varying conditions under which an individual can become undocumented lead to migrants being arrested and held until such time as their immigration status can be resolved; in most cases, undocumented migrants are summarily deported. Detention and deportation play into dangerous stereotypes that criminalize and marginalize migrant populations, both documented and undocumented, and deny the fundamental right to freedom of mobility. Migrant workers and those who advocate for their rights challenge the discourse that criminalizes migrants on the grounds of non-discrimination, arguing that state responses should acknowledge the many conditions under which an individual can find him/herself in an undocumented situation, and should take into account the underlying political, social, and economic structures that lead people to cross borders without authorization and/or to choose remain in a country in spite of an irregular situation. Undocumented migrant workers and their advocates call on states to take on a rights-based and gender responsive approach. Rather than cracking down on migrant communities to round up, detain, and deport people, states should seek people-centred solutions that respect individuals and their human rights. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) (MWC) addresses issues related to the detention of migrants (including undocumented migrants) in Articles 16 and 17 (box 1). An important distinction is to be made between those migrants (documented or undocumented) who are detained on criminal charges, and those who are held in administrative detention due to issues of proper documentation. This is highlighted by the requirement in Article 17(3) that those detained for violations with respect to immigration status should be held separately from convicted persons or those pending trial. This distinction is affirmed in 17(8), in which a migrant held on these administrative grounds should not bear any costs associated with his/her detention. However, in spite of the clear-cut distinction between the types of offences (criminal vs. administrative), the detention of undocumented migrants has a significant impact in that it serves to further the “criminalization” discourse—i.e. imprisonment denotes wrongdoing/criminality, and serves as a mechanism of marginalizing all migrants, as they are pejoratively cast as “illegals” who are threats to their host societies, rather than as important contributors to their countries of destination. This notion feeds into the practices of states that impose severe detention measures as deterrents to would-be migrants, as described in the inputs included in this compilation. BOX 1 ARTICLE 16 (MWC, 1990) (1) Migrant workers and members of their families shall have the right to liberty and security of person. (2) Migrant workers and members of their families shall be entitled to effective protection by the State against violence, physical injury, threats and intimidation, whether by public officials or by private individuals, groups or institutions. (3) Any verification by law enforcement officials of the identity of migrant workers or members of their families shall be carried out in accordance with procedure established by law. (4) Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived o their liberty except on such grounds and in accordance with such procedures as are established by law. (5) Migrant workers and members of their families who are arrested shall be informed at the time of arrest as far as possible in a language they understand of the reasons for their arrest and they shall be promptly informed in a language they understand of any charges against them. (6) Migrant workers and members of their families who are arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that while awaiting trial they shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings and, should the occasion arise, for the execution of the judgement. (7) When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner: (a) The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of that State shall, if he or she so requests, be informed without delay of his or her arrest or detention and of the reasons therefor; (b) The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right to receive communications sent by the said authorities without delay; (c) The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, to correspond and to meet with representatives of the said authorities and to make arrangements with them for his or her legal representation. (8) Migrant workers and members of their families who are deprived of their liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used. (9) Migrant workers and members of their families who have been victims of unlawful arrest or detention shall have an enforceable right to compensation. ARTICLE 17 (MWC, 1990) (1) Migrant workers and members of their families who are deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person and for their cultural identity. (2) Accused migrant workers and members of their families shall, save in exceptional circumstances, be separated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication. (3) Any migrant worker or member of his or her family who is detained in a State of transit or in a State of employment for violation of provisions relating to migration shall be held, in so far as practicable, separately from convicted persons or persons detained pending trial. (4) During any period of imprisonment in pursuance of a sentence imposed by a court of law, the essential aim of the treatment of a migrant worker or a member of his or her family shall be his or her reformation and social rehabilitation. Juvenile offenders shall be separated from adults and be accorded treatment appropriate to their age and legal status. (5) During detention or imprisonment, migrant workers and members of their families shall enjoy the same rights as nationals to visits by members of their families. (6) Whenever a migrant worker is deprived of his or her liberty, the competent authorities of the State concerned shall pay attention to the problems that may be posed for members of his or her family, in particular for spouses and minor children.
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