Blog post written by Dr Justine N. Stefanelli (British Institute of International and Comparative Law), and forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
The UN Global Compact on Safe, Orderly and Regular Migration has highlighted the importance of safeguarding against the unlawful use of detention in its Objective 13. Objective 13 is ambitious and important. It includes a number of target actions designed to ensure that detention is used only as a last resort and that the use of alternatives is favoured. But equally important is the need to identify indicators that can help determine whether Objective 13 is achieving its goals in practice. This article discusses five of them, and includes references to some relevant international principles.
1. No Detention without Law (ICCPR, arts 9(1), 12(3); Migrant Workers Convention, art 16(4))
There must be a legal basis for detention for it to be lawful. This rule of law principle requires that the national law itself must prescribe the criteria and process for detention, and that the applicable rules must be clear and accessible. This can be verified by checking that the law clearly sets forth the grounds for deprivations of liberty and, since the GCM is rooted in human rights, that the law complies with international human rights principles. Moreover, the applicable ground in an individual case should be stated clearly on the written detention order.
2. Presumption against detention in the law (ICCPR, art 12(3) & General Comment 35(2014))
As the main goal of Objective 13 is to ensure that states use detention only as a last resort, the law should include a presumption against detention. The presumption should be accompanied by an obligation to first consider whether it is feasible to apply an alternative to detention, such as reporting requirements or electronic tagging. A number of sub-indicators are relevant. Of course, the obvious: whether the law on its face provides that detention is to be used as a last resort and that alternatives must be considered. Further, it is essential to determine whether, in practice, alternatives are considered in each case. This can be achieved by requiring decision-making authorities to indicate in the detention order the reasons for refusing to apply alternatives. This will enable bodies reviewing the implementation of the GCM to determine whether, in fact, alternatives are adequately considered by decision-making authorities.
In addition, empirical indicators can inform the implementation of Objective 13. These include the number of people entering and leaving detention on a monthly and/or yearly basis, the number of people in detention as a percentage of the immigrant population, and the percentage of immigrants subject to alternatives.
3. Prohibition of arbitrary detention in the law (ICCPR, art 12(3))
Objective 13 provides that detention should be non-arbitrary. This means that, in addition to setting forth the grounds of detention in the law, the law should provide that detention must be necessary, reasonable and proportionate in an individual case. This means that the law should not provide for the wholesale detention of certain categories of non-citizens, such as foreign national offenders. Detention decision-makers should consider each individual’s case on its own merits. Therefore, procedures must be in place to ensure that the necessity, reasonableness and proportionality of detention is considered as a routine part of the detention decision-making process. Crucial in this regard is the existence of a qualitative and fair risk assessment method that can take into account nuances in an individual’s case and is not wholly automated. A key empirical indicator would therefore be the number of verified cases of arbitrary detention annually. This can be determined by ensuring that there are adequate remedies against unlawful detention and that statistics relating to judicial review are published at least annually.
4. Remedies against unlawful detention (ICCPR, arts 7, 9(4)-(5); Migrant Workers Convention, art 16(8)-(9)); CRC, art 37(d))
As alluded to above, the existence of remedies against unlawful detention is a vital part of ensuring that Objective 13 is met. The existence of a bail/bond process and of judicial review of detention helps to safeguard against unlawful uses of detention by holding states to account in the implementation of their detention frameworks. A number of indicators are relevant here.
At base, the right to apply for bail or bond must be set forth in national legislation. Similarly, the right to apply for judicial review of detention must have a statutory basis. In addition, the law should require detention to be periodically reviewed at the administrative level and for written reasons to be given to the detainees following any decision to maintain detention. Certain due process indicators have a role to play here, such as whether the law provides detainees with the right to legal advice or representation while in detention, whether detainees are periodically informed of their right to legal advice, and whether the law requires the state to provide detainees with written reasons for their detention in a language they can understand. It is also important that the law gives those unlawfully detained the right to adequate compensation reflecting the violation of their rights. To ensure that these things are happening in practice, empirical indicators include the number of bail/bond applications filed annually; the number granted; the number of judicial reviews filed annually; and the number of detention decisions declared unlawful annually through judicial review. Low application rates for either bail/bond or judicial review could indicate that detainees are not adequately informed of their legal rights.
5. Humane Treatment in Detention (ICCPR, art 10(1); Migrant Workers Convention, art 17(1))
Finally, where detention is used, it must be used humanely. This means that the legal framework for detention must take into consideration the needs of persons with special needs or vulnerabilities, such as children, mentally ill, families and pregnant women. It also means that detainees should be permitted to visit with family, friends, representatives from NGOs and their legal representatives. To ensure that this is happening in practice, there should be a system in place guaranteeing regular independent inspection of places of detention. Empirically, proper implementation can be evaluated by examining the percentage of people in detention who have been visited by the above groups in a specific period, such as quarterly or annually; the percentage of places of detention that have received an independent inspection visit annually; and the percentage of places of detention offering a complaints system for people in detention.
Indicators are an important part of ensuring the proper implementation of the GCM. They demonstrate how national immigration frameworks operate in practice and help highlight the existence of problem areas. Only by measuring national use of detention can the GCM achieve its objective of ensuring that detention is truly used as a last resort.
 Though this article focuses on five, a number of other indicators may be relevant, such as those relating to the detention of juveniles developed by the UN Office on Drugs and Crime and the UNHCR – some of which were adapted here for general use.
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