Blog post written by Dr Justine N Stefanelli (British Institute of International and Comparative Law) and forms part of a series of blog posts analysing the final draft (objective by objective) of the UN’s Global Compact for Safe, Orderly and Regular Migration.
International Covenant on Civil and Political Rights, Article 9(1): Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
Objective 13 addresses the use of immigration detention and aims to ensure that detention is used only as a last resort when alternative measures are unavailable. Paragraph 29 sets out the key aims of Objective 13, each of which are to be achieved in line with due process and international human rights law. A number of key points can be made in relation to the commitments in paragraph 29. First, detention must abide by the rule of law. It must have a legal basis, and it must be necessary, proportionate and ordered on an individual basis. These safeguards help to ensure that detention is not arbitrary, and to prevent the automatic detention of whole classes of individuals, such as foreign national offenders or asylum seekers. Second, the protections afforded by Objective 13 apply to all types of immigration detention, whether it be at a state’s borders upon arrival, or within the interior in the context of removal or deportation. Third, there is a strong commitment to the prioritisation of noncustodial alternatives to detention with a view toward using detention only as a last resort. Several actions are proposed to achieve Objective 13. Though some of them originated in the Zero Draft and have survived the negotiation process, a number of important changes, both positive and negative, have occurred. Some of these will be discussed in the following section.
The Evolution of Objective 13
In general, the final version of Objective 13 is stronger than originally proposed in the Zero Draft. From the outset, Objective 13 included important provisions, such as the requirement that detention be non-arbitrary, necessary and proportionate; that it be ordered on an individual basis; and that it must be as short as possible. There were also a number of negative aspects. This included, for example, a lack of access to justice provisions (other than the right to communicate with a lawyer); a failure to require periodic reviews of the appropriateness of detention; no requirement that detention take place only in specialised facilities (though the importance of keeping immigration detainees separate from criminal detainees was acknowledged); and finally, though detention is to be for the “shortest period of time”, the Zero Draft did not promote the need to establish a maximum period of detention by law. As the negotiations evolved and subsequent versions of Objective 13 were published, a number of improvements were made. A right of access to legal representation was introduced in Revision 1. It specified that access to legal ‘orientation’ and representation must be granted “in full compliance with international human rights law” (para (e)). The term ‘orientation’ is a vague concept. Presumably, it refers to the need to inform individuals of the applicable law and their legal rights and obligations, but this is unclear. Ambiguity surrounding its meaning may lead to varied interpretations of the Objective which could result in a low standard of protection. Though the Zero Draft had included a right to communicate with legal representatives, this revision further underscored the commitment to non-arbitrariness in paragraph 29. This survives the final text of Objective 13 in paragraph (f). The most important amendments came with Revision 2. First, a number of organisational changes were made. For example, the requirement that detention be for the shortest possible period of time was moved up from what was paragraph (e) in the Zero Draft, to the headline paragraph 29. In addition, a new commitment to the prioritisation of non-custodial alternatives to detention was introduced into paragraph 29. The inclusion of these concepts into paragraph 29 gives them more prominence and reflects the importance that is attached to them. Second, there were also substantive changes made in Revision 2. A new requirement that domestic monitoring of immigration detention must be conducted by an independent body was included in what is now paragraph (a) of the final text. This amendment underscores the rule of law notion that the state must be accountable for its actions and cannot monitor itself. The language in what is now paragraph (c) concerning the need to review and revise domestic immigration detention law was made much stronger with the introduction of substantive legislative requirements aimed at ensuring that detention cannot be ordered on an arbitrary basis. Revision 2 also introduced a paragraph on access to justice (paragraph (d) in the final text), which retained the former requirement that detainees be given the right to communicate with their legal representation, but added a requirement that states must ensure that free or affordable legal advice be provided. That same paragraph also introduced the right to regular review of a detention order. Finally, in what is now paragraph (e), Revision 2 introduced the obligation to provide detainees with the reasons for their detention in a language they understand. Revision 3 brought with it three main changes. First, the idea that the state and any private actors charged with administering immigration detention, such as private contractors operating detention centres, should be held accountable for human rights violations. This is in paragraph (g) of the final text. Second, the notion that any detention must comply with due process was brought into paragraph 29, underscoring its importance in a way similar to the textual changes described above in relation to Revision 2. The third change was to downgrade the access to justice provisions introduced by Revision 2 by removing the requirement that states “ensure free or affordable legal advice” and replacing it with a requirement to “facilitate access to free or affordable legal advice”. Though this language obliges states to put suitable processes and mechanisms in place, its language is weaker in that it does not also require states to ensure that such processes are working properly. While acknowledging the positive inroads that were made during negotiations, it is also important to outline some of the main drawbacks of Objective 13 which have persisted into the final text. To reiterate a first point here, there is no obligation on states to develop a statutory maximum period of detention. Without such a limit, detention can potentially be indefinite, especially if strict processes are not in place to ensure that detention remains necessary and proportionate in the individual circumstance. Linked to this is the need to engage in periodic reviews of detention. Though Objective 13 provides for such reviews, it is unclear whether they must take place automatically, which is preferable, or whether they depend on the initiative of detainees. These reviews should also be used to ensure that the state is acting diligently in its pursuit to exclude, remove or deport the individual in question. Second, while it is good to see the introduction of accountability for human rights violations, it should be accompanied by provisions requiring compensation to the victims of such breaches. The compensation should be proportionate to the violation and could be dealt with by domestic law on liability, such as tort law. Third, the failure of Objective 13 to require detention to take place only in specialised facilities cuts against the idea in paragraph (c) that detention should not be used as a deterrent. Though previous versions of Objective 13 included language to the effect that detention should be “non-punitive” as well as separate from criminals, this language was removed in Revision 2, which is unfortunate, and which goes against recommendations from international organisations, including the UN High Commissioner for Human Rights and the UN Working Group on Arbitrary Detention, that detention take place in specialised facilities.
With the above in mind, Objective 13 is quite a strong and positive statement of the standards that should apply to immigration detention. In particular, its great emphasis on the need to prioritise non-custodial alternatives to detention underscores the notion that detention should be used only as a last resort. In addition, Objective 13 demonstrates a strong commitment to due process, which is evidenced in provisions requiring the right to reasons for detention, the right to legal representation, and the right to have detention reviewed regularly. In a similar vein, its provisions concerning access to justice, though slightly watered down from previous iterations, are to be welcomed. Finally, the notion that states must be held accountable for violations of human rights suffered by detainees is a vital component of effective access to justice, though this could be made stronger to provide compensation for such breaches. Objective 13, therefore, looks promising on paper. But a number of challenges lie ahead with regard to implementation. One of the main tasks will be to give effect to the requirement in paragraph (g) that those who administer immigration detention be trained on non-discrimination, the prevention of arbitrary arrest and detention in the context of international migration law. Many states will not have resources readily available for this and will likely look to regional and international organisations for assistance not only in terms of substance, but with regard to financial support for the training. In addition, depending on how the access to justice provisions in paragraph (e) are interpreted, legal and financial resources will have to be dedicated to helping detainees obtain legal advice and legal representation. States without developed legal aid systems may particularly struggle with this aspect of the Objective. Finally, in view of the great emphasis on the development and prioritisation of non-custodial alternatives to detention, including the creation of a comprehensive repository of best practice in relation to alternatives in paragraph (b), a substantial amount of resources, both in terms of personnel and money, will be required to create the database and contribute to its development. It is key that some sort of co-operative mechanism be developed to ensure regular and sustained communication between the stakeholders in this regard, and perhaps more broadly in relation to the implementation of Objective 13 as a whole.
The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.