Blog post by Dr Izabella Majcher, a Senior Legal Officer at European Council on Refugees and Exiles (ECRE) and a Refugee Law Initiative Research Affiliate. The views expressed in this blog post are those of the author and do not necessarily reflect the position of ECRE. The author would like to thank Mariette Grange for her helpful comments on an earlier version of this blog post. Any errors and conclusions remain the author’s alone. This blog post forms part of a series of blog posts examining the implementation of the Global Compact for Safe, Orderly and Regular Migration.
The negotiations over the Global Compact for Safe, Orderly and Regular Migration (GCM) which spanned over one and a half years, attracted strong interest among UN bodies, civil society organisations (CSOs), and academia. Member States were divided, with some openly rejecting the GCM, while others suffered from nationalistic rhetoric which made one prime minister resign due to its support for the “uncontrolled immigration” allegedly allowed under the GCM. Many commentators inquired into the specific provisions of the GCM as well as its inherent legal value. Now, over two years since the adoption of the GCM in December 2018, the dust over the document has settled and the focus is on implementation. What changes did the GCM actually bring about? How do the Member States implement the GCM? To recall, to support the implementation of the GCM, the UN Secretary General (UNSG) established the UN Network on Migration, which is coordinated and serviced by the IOM and made up of around 40 UN entities. The UN Migration Multi-Partner Trust Fund was also put in place, generating a resource commitment of around 12 million USD so far, to finance national projects implementing the GCM.
The key mechanism to review Member States’ implementation of the GCM is the International Migration Review Forum (IMRF) to be convened under the auspices of the UN General Assembly (UNGA). To take place every four years from 2022 onwards, the IMRF will be an intergovernmental platform for states to discuss and share progress on the implementation of the GCM (para.49). As detailed by the UNGA, the IMRF will be held at the highest possible political level. The process will be state-led but the GCM asserts that it will allow for interaction with other relevant stakeholders (para.49). Each IMRF will last four days but the review of the implementation of the GCM will take place during four multi-stakeholder roundtables. At the end of each IMRF, a Progress Declaration will be issued, agreed on through intergovernmental consultations, which will include an evaluation of overall progress in respect of the implementation of the GCM.
Apart from the IMRF, the review will also be carried out at regional level, beginning in 2020 and alternating with discussions at global level. The regional reviews will inform each edition of the IMRF (para.54). Like the IMRF, the reviews will entail a state-led discussion on the implementation of the GCM, but the GCM asserts that the regional reviews will take place with the participation of all relevant stakeholders (para.50). These regional reviews, organised across five regions, have been taking place since late 2020. As highlighted by the Migration Network, they are deemed to allow Member States to undertake a first assessment of progress made in implementing the GCM within their respective regions and facilitate the formulation of key findings and recommendations to inform the 2022 IMRF. To facilitate the contribution of the regional reviews to the IMRF, the organisation of the reviews broadly follows the organisation of the IMRF. The outcome is a summary report based on submissions and discussions during the conference, which will serve as an input to the 2022 IMRF. In particular, it will inform the Progress Declaration.
This blog post discusses the regional review carried out by the UN Economic Commission for Europe (UNECE) in November 2020. The focus of this blog post is specifically the implementation of Objective 13, in which Member States committed to use immigration detention only as a measure of last resort and to work towards alternatives to detention. The discussion looks into the way the UNECE countries implemented Objective 13, outlining persistent gaps in both implementation and the review thereof. Beyond the implementation of Objective 13, the blog discusses the review process itself. Since this regional review had similar modalities to the upcoming IMRF, the weakness of regional review might be replicated, if not worsened, at global level.
2 Objective 13 of the GCM and international law
The starting point of the discussion on Objective 13 is international human rights law. In its first report on the implementation of the GCM, the UNSG stressed that the “Global Compact does not start from zero: its guiding principles, objectives and actions are rooted in established obligations and principles and underpinned by the Universal Declaration of Human Rights, the 2030 Agenda for Sustainable Development and international law.” As pointed out in academia, whereas many issues covered in the GCM may relate to non-mandatory co-operation commitments, some measures are already tightly regulated by international law. Immigration detention is one such measure.
Arbitrary immigration detention is prohibited under international law in absolute terms (ICCPR, Art.9(1)). The interpretation of the notion of arbitrariness by judicial and quasi-judicial supervisory bodies and related human rights mechanisms (Human Rights Committee, Working Group on Arbitrary Detention (WGAD), European Court of Human Rights) and detailed set of standards (on both any form of deprivation of liberty (UN Standard Minimum Rules and Body of Principles) and specifically immigration detention (WGAD Revised Deliberation No.5)) yield three sets of requirements with which immigration detention should comply in order not to amount to prohibited arbitrary detention. First, detention should be lawful, meaning it should be imposed based on clear and foreseeable legal provisions and through procedure established by law. Detention should also be both necessary and proportionate, implying that it is imposed as a last resort when there are no less-coercive measures suitable in the individual circumstances of the case. The principles of lawfulness, necessity and proportionality imply that immigration detention is as short as possible. There is a growing consensus among international bodies and mechanisms (UN Committee on the Rights of the Child (CRC) and UN Committee on Migrant Workers (CMW), UNHCR, WGAD, UN Special Rapporteur on Torture, and the UN Special Rapporteur on the Human Rights of Migrants) that detention of children should be prohibited, rather than being used as a last resort. Second, detention should be subject to judicial review. The right to an effective remedy demands that the review proceedings are both accessible and effective, which implies that the person is granted legal and linguistic aid. Third, conditions and treatment in detention should be adequate and commensurate with the administrative character of immigration detention. These three sets of safeguards are referred to jointly as constituting the international legal framework governing immigration detention.
It is against the background of this existing legal framework that Objective 13 of the GCM should be interpreted and implemented. Under Objective 13, states have committed to use immigration detention only as a measure of last resort and work towards alternatives. They have committed to ensure that any detention in the context of international migration follows due process, is non-arbitrary, is based on law, necessity, proportionality and individual assessments, is carried out by authorised officials and is for the shortest possible period of time, irrespective of whether detention occurs at the moment of entry, in transit or in proceedings of return, and regardless of the type of place where the detention occurs. To realise these commitments, states will draw from eight sets of actions listed in para.29(a)-(h) of the GCM. Juxtaposing the content of Objective 13 and detailed norms and standards of the international legal framework shows that Objective 13 generally reflects international detention-related safeguards.
There is one exception though, notably, provisions on the detention of children. Under para.29(h) of the GCM, states committed to ensure the availability and accessibility of a viable range of alternatives to detention in non-custodial contexts, favouring community-based care arrangements, and work to end the practice of child immigration detention. The immediate commitment under this provision is to place children in alternatives to detention, which would fall short of the evolving international norm of non-detention of children, as described above. According to the 2017 General Comment of the CRC and CMW, the principle of the best interests of the child, under Art.3 of the CRC, prevails over the last resort principle, which entails the use of alternatives to detention. Immigration detention is never in the child’s best interest and thus should be forbidden. Hence, there is no need for the concept of “alternatives to detention” as there should be no decision to detain. Unaccompanied children are entitled to special protection and assistance and, as national children deprived of their family environment, should be placed in dedicated care and accommodation. Families with children should be placed in non-custodial, community-based arrangements. The legislation of some EU Member States prohibits detention of unaccompanied children; yet, the GCM cannot be used as a pretext to lower domestic detention-related standards as it explicitly stresses that it upholds the principle of non-regression (para.15(f)).
3 Reports submitted by Member States
The indicative outline for states’ reports prepared by the UN Migration Network explains that the submissions should provide brief information on the implementation plans and the status of implementation of all 23 objectives of the GCM. Where possible, information should be based on statistical, as well as qualitative, data. Member States can present critical difficulties envisioned or encountered in reaching GCM objectives and how they could be addressed. This is very similar to the reporting guidelines adopted by the various international human rights treaty monitoring bodies to assist states in carrying out their reporting obligations.
The UNECE region includes 56 Member States, of which 48 countries are located in Europe (including 27 EU Member States and 4 Schengen Associated States), five countries in Central Asia, two countries in North America, and one country in Western Asia. All five Member States which voted against the GCM at the UNGA in December 2018 belong to the UNECE region, notably the Czech Republic, Hungary, Israel, Poland, and the US. Out of 12 abstaining Member States, seven were UNECE countries (Austria, Bulgaria, Italy, Latvia, Liechtenstein, Romania, and Switzerland) and Slovakia did not attend this UNGA session. Out of 43 UNECE countries who were signatories of the GCM, 27 countries submitted reports for the regional review (63 percent). More precisely, out of 37 UNECE signatory European states, 23 submitted a report; out of five Central Asian countries, 3 submitted a report; and only one North American signatory country submitted a report. Better participation could have been expected of the European countries as they have a long history of adoption of human rights norms and standards, and cooperation with supervisory bodies. Several EU Member States, which place high numbers of people in detention either did not send a report or did not address Objective 13. It is regrettable that the report of Turkmenistan was not translated by the secretariat into English, whereas such unofficial translation was undertaken for the reports of Belarus, Russia, and Uzbekistan. It will thus not be included in the assessment of the reports submitted. The remaining reports can be grouped into five categories relating to the way in which they addressed the implementation of Objective 13:
3.1 Silence on detention and implementation of Objective 13
Over one third of Member States’ reports did not address Objective 13 at all. Out of these, 60 percent belong to the EU and Schengen associated countries.
The report from Serbia discusses all the objectives, clustering them into four categories. Yet, in the relevant cluster of objectives, discussion on the implementation of Objective 13 is missing. The report from Kazakhstan does not include implementation of Objective 13 among the 18 objectives addressed. The report from Canada, which is one of the “champion countries” for the implementation of the GCM, is detailed, yet chooses to cover only 12 objectives of the GCM, and does not include Objective 13. Greece explained that in the “initial phase of GCM implementation,” focus is being placed on the nine objectives which are most relevant to the country’s national priorities in the area of migration. These objectives, discussed in the report, do not include Objective 13. Sweden covered nine objectives in a general manner, none of which was Objective 13. Denmark vaguely addressed seven objectives, which did not include Objective 13. Objective 13 was not included among the 5 objectives discussed in the report from Finland. The 12-page report from Uzbekistan did not explicitly refer to any of the GCM objectives. Finally, Norway and the Netherlands submitted reports of a mere 1.5 page length, which do not discuss any of the GCM objectives.
3.2 Vague reference to detention pointing to the systematic use of detention
Five countries (19 percent) only vaguely mention detention and Objective 13. Yet, from what they report, it transpires that detention is not used only as a last resort.
Albania stressed that its legislation defines detention as a measure of last resort for irregular migrants entering its territory. Yet it directly contradicted this statement by explaining that, in order to limit the flow of irregular migrants, they are sent to immigration detention centres, where they stay until their departure. Likewise, the report from Russia explained that detention lasts until the person’s departure from the Russian Federation. Moldova mentioned Objective 13 under its priority to negotiate readmission agreements with third countries of origin of irregular migrants detained at the border or within its territory. Armenia listed Objective 13 in a table matching the GCM objectives with the goals of the 2020 Draft Migration Concept. Accordingly, Objective 13 is said to fit with the goals of increasing the effectiveness of the fight against irregular migration (as it supposedly aims for effective management of irregular migration) and the management of entry, exit and residence of foreigners (as it supposedly helps improve the expulsion process).
The common thread running through these four reports is the understanding and use of detention as a migration management tool. Detention appears to be maintained until the person is expelled, so, paradoxically, readmission agreements are depicted as measures to prevent detention. This amounts to quasi-automatic use of detention, in breach of the principles of necessity, proportionality and last resort.
Another approach to Objective 13 emerges from the report from Belarus. It explains that it is creating two detention centres in order to ensure up-to-date infrastructure to detain migrants in accordance with international standards, including Objective 13. These centres will be built taking into account the special needs of different categories of migrants, in particular women and children. While it is welcome that conditions of detention are planned to be adequate, under the evolving international norm, children should not be detained at all and, under para.29(h) of the GCM children, they should be placed in alternatives to detention – ideally community-based care arrangements.
3.3 Addressing immigration detention in relation to the Covid-19 pandemic
Two countries approached the implementation of Objective 13 from the perspective of the Covid-19 pandemic.
Azerbaijan mentioned detention only in the context of Covid-19 related measures, noting that migrants were not placed in detention during the Covid-19 pandemic, except for those who preferred to stay in detention due to financial difficulties. Similarly, Spain stressed that, due to hygiene concerns, detention centres have remained closed and empty since the outbreak of the pandemic.
It is unclear whether these measures were prompted by the GCM. They do not in fact refer to the April 2020 policy brief on immigration detention and Covid-19, released by the UN Migration Network. This policy guidance, drafted by the Network Working Group on Alternatives to Detention, called on Member States to introduce a moratorium on the use of immigration detention; to release all migrants into non-custodial, community-based alternatives, following strict safeguards and prioritising children, families and other migrants in vulnerable situations; and, pending release to alternative to detention, to urgently improve overall conditions in places of immigration detention.
3.4 Explicit reference to the last resort requirement or alternatives to detention
Eight countries (31 percent) directly addressed the use of detention as a last resort and favouring alternatives to detention.
Germany explained that migrants are only deprived of their liberty as a last resort, taking into account the circumstances of the individual case. Children, and families with children, are detained only in very exceptional cases and only for as long as is appropriate, taking into account the best interests of the child. Alternatives to detention are given preference, if sufficient. Croatia stressed its use of detention only as a measure of last resort, for the shortest time necessary. Its legislation provides for several alternatives to detention; notably, handing over travel documents, depositing money, regular contact with the relevant authorities and a ban on leaving the place of accommodation. Domestic law provides for unaccompanied children, in general, to be accommodated in open type facilities. Malta noted its domestic legislation which provides for recourse to alternatives to detention by Immigration Police, including reporting; residence at an assigned place; deposit of documents; or placing of a one-time guarantee or surety. A review of the pre-removal detention by the Immigration Appeals Board is meant to ensure that detention is short as possible and a last resort. Belgium explained that detention of migrants is a measure of last resort. The “open facilities for families” offer open housing for families who are no longer entitled to regular residence and function as alternatives to the detention of families.
As EU Member States implementing the 2008 EU Return Directive, these four countries have legal provisions in place to use alternatives to detention because they are obliged under EU law to transpose the Directive. The provisions pre-date the GCM. Germany and Croatia refer to the practice of using detention of a last resort. Yet, no statistics are provided to prove this, nor details of the processes used to assess the necessity and proportionality on an individual basis. Belgium’s facilities for families and children are indeed good practice under the GCM, yet, according to emerging international norm, children should not be placed in alternatives to detention at all. Also, this alternative measure does not apply to other categories of migrants.
Turkey explained that alternatives to detention were included in the 2013 Migration Law in order to use migration detention only as a measure of last resort and work towards alternatives. North Macedonia explained the 2018 Law on Foreigners introduced an alternative to detention. The alternative solutions should especially be used in the event of detaining a child, as the final resort. Unaccompanied children, and families with children, should be detained only as a final resort and for as brief a period of time as possible. According to the Ministry of the Interior, any immigration detention is used only as a final resort for securing the migrant. However, the CSOs presented a different view, discussed below. Ireland referred only to persons refused entry and highlighted that their detention is undertaken as a last resort. Children are never put into facilities which may be viewed as carceral environments. The UK explained that pilot projects were testing the impact of community support for individuals at risk of detention to make voluntary decisions regarding their immigration options, and whether the support provided can help them to take positive next steps toward concluding their cases (so-called case resolution).
Although the four countries above are not implementing the EU Return Directive, their domestic legislation in the area of migration and asylum largely reflects EU law. Their domestic provisions on alternatives to detention were, therefore, not prompted by the GCM. The implementation of Objective 13 would be a revamped policy and a commitment to indeed use detention as a last resort, yet no statistics are given to demonstrate this. The UK’s report is interesting as it provides details about the practice. It is not clear, however, to whom the category of “individuals at risk of detention” applies. Potentially, it covers people who would otherwise not be detained at all, thus expanding the applicability of surveillance and freedom restricting measures.
3.5 Genuine commitment to reduce the use immigration detention
The most genuine commitment to reduce the use of immigration detention was expressed by Portugal. The country stressed that it is committed to promoting regularisation at the expense of detention. To this end, public services actively collaborate in the referral of people who need to regularise their situation. Indeed, regularisation has become a taboo in the EU, while the failure to address the situation of non-returnable people is a long-recognised gap in the EU Return Directive. To be comprehensive, any return system needs to include a regularisation component because many research findings indicate that not all people ordered to leave are actually returnable (due to, inter alia, lack of safety and security in the destination country).
4 Involvement of independent stakeholders
The methodology for the states’ reports should explain the process for the preparation of the review including, including mechanisms which have been used to engage civil society and other relevant stakeholders. Yet, out of 27 reports, 42 percent did not mention the involvement of CSOs at all. It is noteworthy that, out of 11 reports in this category, eight are from EU and Schengen associated countries.
Five reports (Azerbaijan, Belarus, Kazakhstan, Moldova, and the UK) mentioned that CSOs were consulted, or that input from them was received, in the preparation of the report, without, however, listing the civil society organisation reportedly involved. Reports from two countries (Canada and Sweden) are not clear whether CSOs were consulted in the preparation of the report or only during the process of negotiation with the GCM. Conversely, three countries (Albania, Armenia, and Serbia) listed the CSOs which were consulted and provided information for the review, which increases the transparency of the process.
Germany, Ireland and Spain explained that meetings with a number of relevant stakeholders, representing civil society were held, primarily to raise awareness of the GCM process, inform them about the modalities of the IMRF and hear from them about their key priorities. Germany’s report is more precise on this point as it explains that, although the report does not represent the views of all actors, input from various stakeholders is reflected. Belgium explained that, in parallel to the preparation of the review by governmental bodies, relevant CSOs formulated a detailed Action Plan and created five main priorities, which they directed to the Belgian government. This document is referenced in Belgium’s report; however, it was unfortunately not submitted to this review. The most substantive reflection of engagement with CSOs is the report from North Macedonia. The section devoted to immigration detention, as discussed above, said that alternatives to detention are always considered. This section also highlights that, according to CSOs, the police, who play a vital role in detaining the migrants, do not often use the alternative measures.
Generally, engagement with civil society was weak. Even most of the countries which held meetings with CSOs did not clarify how their input was included in the report. Except for the report from North Macedonia, containing the counter-opinion on the use of alternatives to detention to the one expressed by the authorities, all the remaining reports, representing only the government’s views, are one-dimensional and should be juxtaposed with independent sources.
Although the review process is state-led, the GCM asserts that it should take place with the participation of all relevant stakeholders (para.50). Indeed, stakeholders were invited to engage with the review by various means, the key one being the ability to submit written submissions. In total, 17 submissions originated from non-state actors, of which nine reports were from CSOs.
As reported by the European Network of National Human Rights Institutions (ENNHRI), in many European countries, detention is the rule rather than the exception. Especially at the borders, migrants are routinely deprived of their liberty without prior consideration of individual assessment and alternatives to detention. With regard to Germany, seven German NGOs stressed that, since 2019, pre-removal detention is again possible in prisons and that the numbers of detainees have increased. Human Rights Watch (HRW) noted systematic practices of arbitrary detention of migrants and asylum seekers, sometimes for prolonged and indefinite periods, by Canada, the self-declared Turkish Republic of Northern Cyprus, Greece, Malta, and Turkey. According to the International Detention Coalition (IDC) and the Platform for International Cooperation on Undocumented Migrants (PICUM), the new EU Pact on Migration and Asylum is almost silent on alternatives to detention and will likely lead to increased and longer detention at the EU’s external borders. [N.B. The report submitted by the European Commission does not address any specific GCM objective and detention is only mentioned with respect to Libya and assistance to detainees provided under the AU-EU-UN Task Force.]
According to the Anti-Discrimination Centre Memorial in Russia, children discovered working without a permit who are aged between 16 and 18 may be placed in prison-like conditions for up to 30 days awaiting expulsion and those below the age of 16 are detained in centres officially considered social institutions but which function as detention centres in practice. The ENNRI raised concerns about the detention of migrant children in European countries. HRW noted systematic detention of children in occupied Northern Cyprus and Greece. The Initiative for Child Rights in the Global Compacts and PICUM focused on the EU Pact on Migration and Asylum and regretted that not all children are exempted from the new border procedures, which will lead to almost automatic detention of a high proportion of children.
As is the case during reviews and reporting to UN human rights bodies (treaty monitoring bodies and the Universal Periodic Review of the Human Rights Council (UPR)), civil society usually presents a sobering and balanced view of actual practice as opposed to official discourses. The submissions for the GCM review were particularly relevant for the countries in Category 1, which did not address Objective 13 at all, and Category 4, which either described their existing laws which formally include the last resort requirement and assessment of the alternatives to detention, or did not back up their description of practice with any statistical evidence.
The Final Report of the review includes a short paragraph briefly summarising a few key points made in the reports from the CSOs. Albeit brief, and not mentioning any specific Member State, it still represents a welcome counter-point to the description of positive practices taken from official country reports. CSOs should continue using the opportunity to raise concerns regarding detention-related practices in the countries or regions in which they work, similar to the way they do in submissions to UN human rights treaty bodies ahead of reviews of states’ reports.
As regards the review of the implementation of Objective 13, overall, states’ reports did not show any particular impact of the GCM on the use of detention as a last resort. Several states (Category 2) formally referred to the last resort principle, yet the description of their practice shows systematic use of detention. In fact, detention in these countries functions as an ancillary element of the expulsion process so that the person is not released before the expulsion. This amounts to quasi mandatory detention, in breach of the last resort principle. Several countries (Category 4) described in detail their laws which include the last resort principle. However, without indication of the practice, and the inclusion of independent sources, it cannot be concluded that these provisions are indeed implemented. It is noteworthy that none of the states’ reports included statistics on the use of detention and alternatives to detention, to show that the numbers of detainees fell as a result of implementing Objective 13. In addition, these relevant legal provisions pre-date the GCM which thus seems to have had little added value to date in bringing out wider adherence to the last resort principle in the UNECE region.
In terms of the review itself, the process has a limited value in assessing states’ implementation of their commitments under the GCM. The process is voluntary, intergovernmental and state-led, although participation of relevant stakeholders should be facilitated. The outcome document is mainly based on the reports submitted by states and the discussions during the roundtables. The effectiveness of the process is itself questionable because the 90-minute roundtables are meant to cover the implementation of between five to seven objectives in all the countries of the region. In contrast, the UPR devotes three-and-a-half-hour session to each state under the review. The discussion during the UPR sessions are based on two compilations prepared by the OHCHR Secretariat: “Compilation of UN information” and “Summary of stakeholders’ information,” which includes input from independent sources. In the context of the GCM review, although UN bodies and SCOs can also make a statement during the roundtables, there is no discussion or recommendations. Ultimately, the GCM process is a self-review. This contrasts with the UPR, which is also state-led, but which has a framework within which states are assessed by their peers. The outcome document of both the regional and global review of the GCM is intergovernmentally agreed. The summary report of the UNECE regional review devotes one page to Objective 13 and, although it briefly summarises some key points made in the submissions by the CSOs, it is overly positive regarding states’ actual detention policies and practices. In that regard, it also contrasts with the outcome document of the UPR, which contains all recommendations issued to the state under the review, indicating which were accepted by it. Given the inherent weaknesses of the GCM review, the UPR and monitoring by human rights bodies and mechanisms will keep playing a pivotal role in scrutinising states’ respect of human rights of migrants. Researchers might find it useful to compare the GCM review mechanism with the mechanisms developed around the Anti-Personnel Landmines Convention which initially did not include measures for a monitoring mechanism but for which a strong multi-tiered mechanism has successfully been developed over the years.
Ultimately, there is a risk that the GCM will distract states from their reporting obligations under the human rights conventions. A lack of any critical voice regarding specific countries in the outcome document of GCM review can nurture a feeling among states that their detention-related policies and practices are validated. Yet, to recall, the GCM implementation does not occur in a vacuum and the GCM explicitly affirms that it is rests on international human rights instruments (para.2) and Member States explicitly committed to implement the objectives of the GCM in compliance with their international obligations (para.41). Some objectives of the GCM, including Objective 13, reflect existing legal norms and standards. To prevent creating parallel, and potentially competing, processes, the UN Migration Network and the secretariat of the treaty bodies should ensure synergies between their monitoring tasks. The relevant excerpts of the “concluding observations,” which is the outcome document of the review undertaken by the treaty bodies, should be submitted for the GCM reviews, and the treaty bodies’ recommendations should be included in the outcome document of the GCM review.
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