Joint Statement
22 June 2017
A Fundamentally Different Approach is Needed
Joint Statement to the European Committee on Legal Co-Operation
of the Council of Europe on the codification of European Rules
for the Conditions of Administrative Detention of Migrants
We, the undersigned 53 organizations, welcome the increased attention of the Council of
Europe towards the protection of the human rights of migrants impacted by immigration
detention, including the current draft process to develop European Rules on the Conditions
for the Administrative Detention of Migrants. We write to express our collective concern that
a fundamentally different approach is needed if the draft codifying instrument is to truly reflect
the minimum human rights standards to which migrants are entitled.
Existing international law obligations are clear that administrative detention must always be
an exceptional measure of last resort, and even then, only when strictly lawful, necessary
and proportionate to a legitimate State aim. Detention for the purposes of immigration control
is a particularly worrying trend among European States as it is growing rapidly despite not
being essential to the proper functioning of well-managed migration systems. The increasing
reliance upon immigration detention, therefore, brings into question a number of longstanding and fundamental human rights norms.
The codification of European Rules on the Conditions for the Administrative Detention of
Migrants can play an important role in reinforcing these fundamental norms, but only if they
truly and properly distinguish immigration detention from criminal and other administrative
detention regimes. Unlike other forms of detention, migrant detainees are neither suspected
of, nor charged with, criminal offences, and their mere presence in Council of Europe
member States represents no threat to public health, safety or security. United Nations
experts and human rights treaty bodies have consistently held that migration is not a crime
per se and should never be criminalized or subject to other punitive measures.
For this reason, the links in the draft codifying instrument to existing criminal detention
standards, such as the European Prison Rules (EPR), are highly concerning. In some cases,
the draft rules seem to provide even lower standards than existing prison rules. Such links-even by analogy--work to reinforce the false and negative stereotypes that migrants are
"illegal", inclined to criminality, or represent a threat to public order or national security. They
are also a frequent justification for the perceived need for increased immigration detention,
despite having no factual basis.
The references to existing criminal detention standards in the draft codifying instrument are
responsible for many of the substantive shortcomings of the document, such as:
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the detention of children, pregnant women, the elderly, persons with disabilities,
victims of trafficking, and other migrants in situations of particular vulnerability;
understanding of immigration detention as a prison-like environment with limitations
on visitation rights or confiscation of personal belongings;
concept of order and security with the use of force and physical restraints and solitary
confinement, including as a sanction.
It is our position that such practices are inappropriate for the purposes of administrative
immigration detention. Migration regimes, at their core, are about ensuring that people are
aware of, and able to comply with, fair and humane migration procedures. Prison-like
regimes have no place in such systems.
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