1 Salvador Gutiérrez National Officer Regional Office for Central America and Mexico Detention, Rejection, and Removal of Migrants: International Standards for Public Policy-Making International Organization for Migration Tegucigalpa, Honduras – February 11, 2011 Seminar-Workshop on Human Rights of Migrant Populations

2 Contents of the Presentation 1.Human Rights within the Framework of Detention, Expulsion, and Deportation 2.International Standards in Matters of Detention of Migrants 3.International Standards in Matters of Expulsion and Deportation of Migrants

3 3 Section 1: Human Rights within the Framework of Detention, Expulsion, and Deportation of Migrants Tegucigalpa, Honduras, February 11, 2011 Salvador Gutiérrez IOM, National Officer

4 Contents Characteristics of Human Rights Human Rights within the Framework of Detention, Expulsion, and Deportation Human Rights within the Framework of Migration Management

5 5 Human Rights within the Framework of Detention, Expulsion, and Deportation – Characteristics of Human Rights Human Rights are: Inalienable – Cannot be seized from a person and therefore, are not dependent upon status. Universal – Should be applied without discrimination as to race, skin colour, gender, language, religion, political opinion, national or social origin, place of birth, or status. Not absolute – Some rights are revocable under certain circumstances (for example: in emergency situations, Art 4. ICCPR). However, some fundamental rights may not be suspended, that is, they are absolute. What are the characteristics of human rights?

6 6 Human Rights within the Framework of Rejection, Detention, and Repatriation States commit to respect the civil and political rights of “all individuals within their territory and subject to their jurisdiction” (ICCPR). Expanded Non-discrimination Clause: These derogations with differentiation criteria may not be based on race, colour, language, gender, or social origin. In cases of public emergency, these rights may be revoked – and differentiating between nationals and non-nationals may even be allowed (ICCPR). What are some of the most relevant human rights relating to this matter?

7 7 Human Rights within the Framework of Rejection, Detention, and Repatriation Prohibition of torture; Prohibition of unjustified detention; Prohibition of discrimination based on race and gender; The right of the detained person to be treated with humanity; Principle of “non-refoulement”. What human rights may never be revoked?

8 Human Rights within the Framework of Migration Management In exercising its sovereignty, the State has the power to regulate: Granting nationality (The Hague Convention of 1930); Requirements for admitting non-nationals; Expulsion and deportation of non-nationals; Detention. What power does the State have in exercising its sovereignty?

9 Fundamental Principle: Migration management should be implemented with full respect for human rights and in strict compliance with the international commitments taken on by the State. Human Rights within the Framework of Migration Management Sovereignty Human Rights ¿What are the limits to the exercise of sovereignty?

10 Section II: International Standards in Matters of Detention of Migrants Tegucigalpa, Honduras, February 11, 2011 Salvador Gutiérrez IOM, National Officer

11 Contents International Standards in Matters of Detention Regional Standards in Matters of Detention

12 International Standards in Matters of Detention International Instruments Freedom of movement (ICCPR, Art. 12; International Convention on the Rights of All Migrant Workers and Members of their Families, Art. 8; UNCRC, Art. 10); – The right to leave any country and the right to return to the home country; Freedom against arbitrary detention (ICCPR); Protection against arbitrary detention (International Convention on the Rights of All Migrant Workers and Members of their Families, Art. 16, 17(3)).

13 UDHR - The right to life, liberty, and the security of the person (Art 3); - Prohibition against arbitrary detention (Art 9). Principles established in Art. 9, ICCPR (the right to liberty) Arbitrary detention is prohibited. - Detention may only be established based on and in accordance with previously established procedures; - The right to initiate proceedings before a Court with the aim of establishing the legality of detention; - The right to claim compensation if the detention was illegal. International Standards in Matters of Detention International Instruments

14 Protecting the Family, Art. 17 & 23 (ICCPR); Protecting the Family (ICESCR, Art.; International Convention on the Rights of All Migrant Workers and Members of their Families, Art. 14 & 44; UNCRC, Art. 10(1), 7, & 16); The right to health (ICESCR, Art. 12). International Standards in Matters of Detention International Instruments

15 UNCRC, Article 37. Detention is a measure of last resort and should be for the shortest established period of time. Every child in detention should be treated considering the needs of persons of the child’s age. Children shall be separated from adults, unless this is against the Child’s Best Interest, and shall have the right to keep in touch with their families. Children shall have the right to access without delay to legal assistance and other appropriate assistance, as well as to challenge legality and to a prompt decision. International Standards in Matters of Detention International Instruments

16 Principles for the protection of all persons subject to any form of detention or imprisonment. Principle No one shall be kept in detention without the real possibility of being heard without delay by a judge or other relevant authority. 2. Every detained person and his/her attorney shall be immediately and thoroughly informed about the detention order, together with the reasons. Principle The following shall be duly stated: a) The reasons for detention; b) The time of detention and transfer to the detention centre, as well as the time of the first appearance before a judge or other relevant authority; c) The identity of officers in charge; d) Accurate information about the detention centre. Principle 16 The detained or imprisoned person shall also be promptly informed about his/her right to communicate through the appropriate means with the consular office or the diplomatic mission of his/her own State. International Standards in Matters of Detention Other International Guidelines

17 American Convention on Human Rights, 1969 Article 7.1 Every person has the right to liberty… American Declaration of the Rights and Duties of Man, 1948 Article I. Every human being has the right to life, liberty, and the security of his person. Regional Standards in Matters of Detention Regional Instruments

18 Mr. Vélez Loor, of Ecuadorian nationality, was arrested by the Panamanian police force on November 11, 2002 in the Darién for entering the country in an irregular manner and was handed over to immigration authorities. He was condemned to two years imprisonment for repeatedly infringing immigration legislation and was deprived of his liberty for 10 months before being deported. Regional Standards in Matters of Detention The Vélez Loor Case

19 The Court ruled that States may regulate the entry and exit of their territory provided that these measures are not against the American Convention on Human Rights. Criminalization of migration flows is incompatible with the Convention. Measures to deprive the person of his liberty due to incompliance with immigration laws should only be used – and for the shortest possible period – when necessary and proportional and when the aim is to ensure the presence at the administrative or judicial hearing or to ensure enforcement of a deportation order. Regional Standards in Matters of Detention The Vélez Loor Case

20 When detention is ordered by an administrative authority, a review by a judge or a Court is a fundamental requirement in order to ensure an appropriate control of the respect for fundamental rights. The right to consular assistance in cases of depriving a non-national of his/her liberty. Three essential components of this right: 1) Notifying the detained person of his/her rights; 2) Effective access to communication with relevant consular officers; and 3) Consular assistance itself. Regional Standards in Matters of Detention The Vélez Loor Case

21 In cases where detention is indispensable, migrants may only be detained at specific facilities and not in common prisons or locations where they may be together with persons that have been accused of or condemned for criminal actions. Visible information in several languages about the legal status of the detained persons, names and telephone numbers of Consulates and of legal advisors and organizations to which these persons can resort. Regional Standards in Matters of Detention The Vélez Loor Case

22 Section III: International Standards in Matters of Expulsion and Deportation of Migrants Tegucigalpa, Honduras, February 11, 2011 Salvador Gutiérrez IOM, National Officer

23 Contents International Standards in Matters of Expulsion and Deportation Practical Experiences

24 “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority. (Art. 13, ICCPR) Regional Standards in Matters of Expulsion and Deportation International instruments

25 When detention is ordered by an administrative authority, a review by a judge or a Court is a fundamental requirement in order to ensure an appropriate control of the respect for fundamental rights. The right to consular assistance in cases of depriving a non-national of his/her liberty. Three essential components of this right: 1) Notifying the detained person of his/her rights; 2) Effective access to communication with relevant consular officers; y 3) Consular assistance itself. Regional Standards in Matters of Expulsion and Deportation International instruments

26 Guarantees relating to expulsion (ICCPR, Art. 13; International Convention on the Rights of All Migrant Workers and Members of their Families, Art. 22 & 56; Convention against Torture, Art. 3). Migrants have the right to leave any country, including their own country. There is no international obligation on States to permit entry of non-nationals to their territory. The only persons that have the absolute right to return to their country are nationals of this country (no one should be arbitrarily dispossessed of the right to enter his/her own country, Art. 12, Sec. 4, ICCPR). Regional Standards in Matters of Expulsion and Deportation International instruments

27 In principle, the State has the right to remove non-nationals from its territory. Restrictions: –Principle of non-refoulement –The “Child’s Best Interest” –Procedural restrictions in accordance with international law (Art. 13, ICCPR) Regional Standards in Matters of Expulsion and Deportation International Instruments

28 Art. 33, Convention relating to the Status of Refugees, 1951 States should never place refugees at the borders of territories where their lives or liberty are endangered because of race, religion, nationality, belonging to a given social group, or political opinions. Art. 3 (1), Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, 1984 States should not remove or deport a person to another State when there is justifiable reason to believe that this person will be in danger of being tortured. To establish this, authorities should take into account all the relevant considerations, including the existence, in the State in question, of a persistent scenario of manifest, evident, or massive human rights violations. Regional Standards in Matters of Expulsion and Deportation International Instruments

29 The Child’s Best Interest (Article 3, UNCRC) A primary consideration in all actions involving children, 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 as possible. Regional Standards in Matters of Expulsion and Deportation International Instruments

30 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 All Migrant Workers and Members of their Families) Family as a fundamental group unit of society is subject to protection by the State. Reunification of the child with his/her family, except when this is not in the Child’s Best Interest. Regional Standards in Matters of Expulsion and Deportation International Instruments

31 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 “due weight in accordance with the age and maturity of the child”. Regional Standards in Matters of Expulsion and Deportation International Instruments

32 Directive 2008/115/EC of the European Parliament and Council, dated December 16, 2008 about common standards and procedures in Member States for the return of foreign nationals staying in community territory in an illegal manner. Scope: Nationals from third States who have stayed in the territory of a Member 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, similar reasons” 32 Regional Standards in Matters of Expulsion and Deportation Practical Experiences

33 Voluntary Departure, Art.7 In compliance with a removal order; Is preferable to forced return; Obligation to grant an appropriate period for a voluntary departure (7-30 days). The possibility of granting a shorter period for departure when: A real risk of evasion exists; A risk for public or national security exists. 33 Regional Standards in Matters of Expulsion and Deportation Practical Experiences

34 Expulsion, Art. 8 Conditions: Expiration of the period established for voluntary return. Use of coercive measures in case the person resists expulsion: As a measure of last resort; Proportional; Reasonable use of force; In accordance with fundamental rights, maintaining dignity and physical integrity. Postponing Removal, Art. 9: Mandatory: If the principle of non-refoulement has been violated and for the duration of a suspension order. Discretionary: Under specific circumstances, for example: a person’s physical or mental state; technical reasons; failure to identify the person to be removed. 34 Regional Standards in Matters of Expulsion and Deportation Practical Experiences

35 Safeguards until the return, expulsion, and deportation has been implemented: Respect for the principle of family unification; Emergency healthcare and essential treatment of illness; Access to basic education for boys, girls, and adolescents; Meeting special needs of vulnerable persons. 35 Regional Standards in Matters of Expulsion and Deportation Practical Experiences

36 Conditions for Deportation, Art. 10: Before a decision is issued: Obligation for the relevant special protection authority to intervene considering the Child’s Best Interest. Certainty that the boy, girl, or adolescent shall be returned to some member of his/her family, a designated child guardian, or institutions with appropriate reception facilities in the State to which the child is returned. 36 Regional Standards in Matters of Expulsion and Deportation Practical Experiences

37 Obligation of executing a removal order, but no obligation of granting legal status if the return is not possible; An extremely short period of time to adequately prepare the return (7-30 days); Lack of an adequate evaluation of the quality of assistance provided for boys, girls, and adolescents in the country where they are returned; The period for delaying the entry process in case of deportation is usually fixed. 37 Regional Standards in Matters of Expulsion and Deportation Practical Experiences How has the Directive been evaluated?

38 Readmission — Act by a State accepting the re-entry of an individual (own national, third-country national, or stateless person), who has been found illegally entering or being present in another State. Readmission Agreement – Agreement which addresses procedures for one State to return aliens in an irregular situation to their home State or a State through which they passed en route to the State which seeks to return them. IOM Glossary, 2004 Regional Standards in Matters of Expulsion and Deportation Practical Experiences

39 –Establishes frameworks and procedures for forced removal of migrants through which bilateral commitments are established and taken on; –Special protection mechanisms for vulnerable migrants could be established; –More effective collaboration between States could be agreed on to reduce the period of detention; –Mechanisms could be established to facilitate identification and certification of nationality. Regional Standards in Matters of Expulsion and Deportation Practical Experiences

40 –Mechanisms could be established for one or the other country to issue documents for the return; –Repatriation costs could be shared; –Maximum time limits could be established for the different stages of the procedure. Regional Standards in Matters of Expulsion and Deportation Practical Experiences

41 Thank You!