A Summary Report on the Human Trafficking Elements of the Findings and Recommendations of the Special Rapporteur on the Human Rights of Migrants
April 2003

Introduction
Report to Commission on Human Rights
Report of Mission to Mexico/US Border
Report of Mission to the Philippines
['Printable document']

Summary of the Report of the Special Rapporteur to the Commission on Human Rights
This year, the Special Rapporteur’s general report to the Commission on Human Rights (doc.: E/CN.4/2003/85) highlighted the situation of the human rights of migrants deprived of their liberty and formulated some recommendations in this respect.

"Deprivation of liberty is undertaken without due regard for the individual history of migrants."

The Special Rapporteur found that migrants are particularly vulnerable to deprivation of liberty. Not only there is a tendency to criminalize violations of immigration regulations and to severely punish them in an attempt to discourage irregular migration, but also a great number of countries resort to administrative detention of irregular migrants pending deportation. Deprivation of liberty is undertaken without due regard for the individual history of migrants. Victims of trafficking and smuggling are criminalized, detained and deported for infractions or offences committed as inevitable consequences of the violations they have suffered. Often there is a lack of specific provisions regarding the detention of children and other vulnerable groups, allowing for their detention in conditions that often violate their basic human rights and are detrimental to their physical and mental health.

The Special Rapporteur received worrying reports of criminal offences, such as theft or robbery, being planted by immigration officials on irregular migrants. Such incidents are often inspired by racist attitudes and beliefs. She observed that the tendency to arbitrarily resort to criminal proceedings for administrative infractions is more frequent where corruption of immigration officials is widespread.

"...undocumented migrants deprived of their liberty often do not receive adequate legal, medical, social and psychological assistance and protection, either by the institutions of the host countries or by their consular representatives."

In the context of administrative detention of migrants, the high degree of discretion and the broad power to detain to immigration and other law enforcement officials can give rise to abuses and to human rights violations. The failure to provide legal criteria can result in de facto discriminatory patterns of arrest and deportation of irregular migrants. Article 9 of the Universal Declaration of Human Right establishes that “no one shall be subjected to arbitrary arrest or detention.” This universally recognized principle is also enshrined in article 9 of the International Covenant on Civil and Political Rights. However, national laws often do not provide for judicial review of administrative detention of migrants. Even when the law requires that detained migrants be brought before an administrative or other court, this is often not done within the prescribed time limit. Legislation and practices allow administrative detention to become at times indefinitive or very lengthy, despite the fact that the facilities built or used for this purpose are not equipped for long-term detention. They do not provide for access to education, recreational activities and adequate medical services. In addition, undocumented migrants deprived of their liberty often do not receive adequate legal, medical, social and psychological assistance and protection, either by the institutions of the host countries or by their consular representatives. In several cases, owing to the lack of documents, migrants are not recognized as citizens by their consulates or embassies.

Summary of Recommendations
The Special Rapporteur, therefore, recommended that infractions of immigration laws and regulations not be considered criminal offences under national legislation. Governments should consider the possibility of progressively abolishing all forms of administrative detention and, when this is not possible, take measures to ensure respect for the human rights of migrants deprived of liberty.

She encouraged governments to ensure that consular and embassy personnel are adequately trained to provide assistance to nationals in distress broad, including irregular migrants. Mechanism of supervision of cases of negligence in providing such assistance should exist.

She invited NGOs to continue in their efforts to document and study the violations and abuses that migrants often suffer in the context of detention. She also encouraged the organizations of the civil society to develop programs to provides assistance to migrants deprived of their liberty, including legal counsel, translation services and social psychological assistance, and to regularly visit holding centers and penitentiaries where irregular migrants are held.

Finally she supported dialogue, through international and regional events and forums, with the participation of relevant international and regional organizations and representatives of the civil society, on international cooperation and arrangements for the establishment of migration management system.