highlighted among the "basic principles" underwriting the draft codifying instrument.
However, States would fail to comply with the full scope of their obligations to protect
migrants in administrative detention if their sole actions are to refrain from arbitrarily
detaining and/or subjecting persons to torture or ill-treatment.
Equally fundamental in this context are the right of every person to basic dignity and
humanity, as well as the heightened duties of safety and care to which individuals in
particularly vulnerable situations are entitled. In order to uphold migrants’ dignity and
humanity, additional legal safeguards are also critical, such as access to a lawyer from
the outset of the migration procedure, the right to appeal or review the detention order,
the assistance of an interpreter and to have information provided in a language the
migrant understands.
These additional rights should be further promoted and reinforced within the draft
codifying instrument. Doing so will help to re-frame the exercise from one in which
standards are put in place to merely avoid serious harms or abuses; to one that provides
guidance to States on how to properly ensure the safety, dignity and humanity of all
migrants within places of administrative immigration detention.
3. Clarify that administrative immigration detention is never acceptable for migrants
in situations of particular vulnerability
Migrants in situations of particular vulnerability should never be detained for
reasons of administrative immigration enforcement. Such detention is not necessary,
poses serious risks of torture and ill-treatment, and is inconsistent with international legal
obligations prohibiting arbitrary detention. The current draft codifying instrument implicitly
condones the immigration detention of a range of migrants in situations of particular
vulnerability including migrant children, families, pregnant women and nursing mothers,
persons with disabilities, elderly persons, stateless persons, asylum seekers, persons
discriminated against on the grounds of their sexual orientation and gender identity, and
victims of trafficking, torture, trauma or other abuse.
Detention merely for the purposes of administrative immigration enforcement is never a
measure that can appropriately protect these individuals from serious harms of torture or
ill-treatment, and will often be arbitrary given the abundance of alternative measures to
detention.
Rather than adopting rules for the detention of persons in situations of vulnerability, the
CDCJ should insist on their referral to protection systems and on their accommodation in
care and protection-based alternatives to detention. Additionally, the CDCJ should
encourage States to assess such situations of vulnerability prior to ordering detention, so
that their detention can be avoided. Finally, the CDCJ should insist more strongly that
States have an obligation to monitor the evolution of vulnerability factors within detention
so that persons identified as being in situations of vulnerability can be immediately
released.
4. Call for the priority application of alternative measures to detention
A critical safeguard for avoiding arbitrary detention in the context of administrative
immigration enforcement is the robust application of alternative measures to
detention. Like the right to procedural safeguards or the requirement that detention have
a legitimate purpose, the obligation to pursue alternative measures to detention is a
critical component of non-arbitrariness. Any detention must be strictly necessary and
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