Advance Edited Version
7 February 2018
Original: English
Working Group on Arbitrary Detention
Revised Deliberation No. 5 on deprivation of liberty of
migrants
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the Working Group’s mandate, and requested that it devote all necessary attention
to reports concerning the situation of immigrants and asylum seekers who are allegedly being
held in prolonged administrative custody without the possibility of administrative or judicial
remedy.
2.
In the light of the experience gained from its country visits carried out in that
framework, in 1999 the Working Group took the initiative to develop criteria for determining
whether the deprivation of liberty of asylum seekers and immigrants might be arbitrary, and
to that end adopted its deliberation No. 5.1
3.
In 2017, twenty years after it was requested to consider the deprivation of liberty of
immigrants and asylum seekers, the Working Group, concerned by the rising prevalence of
deprivation of liberty of immigrants and asylum seekers in recent years, recognizing the need
to consolidate the developments in its own jurisprudence, taking into account the important
developments in international law in this area and having received contributions, inter alia,
from relevant United Nations agencies and special procedure mandate holders, has decided
to revise and replace its deliberation No. 5 with the present version.
4.
The Working Group wishes to emphasize in particular that 2018 marks the seventieth
anniversary of the Universal Declaration of Human Rights, an instrument that recognizes that
every human being is born free and equal in dignity and rights and that every person has the
same rights and liberties without distinction based on race, colour, sex, language, religion,
political opinion or other, national or social origin, economic position, birth, nationality or
any other status. Furthermore, it proclaims that no one shall be subjected to arbitrary arrest,
detention or exile and that it is the right of every person to leave any country, including his
own, and to return to his country. The instrument also recognizes the right of every person to
seek and enjoy in other countries asylum.
5.
The present deliberation aims to consolidate the Working Group’s existing practice
regarding the deprivation of liberty of migrants and, as such, is representative of its existing
jurisprudence.
Revised deliberation No. 5
6.
For the purposes of the present deliberation, a “migrant” shall be taken to mean any
person who is moving or has moved across an international border away from his or her
habitual place of residence, regardless of: (a) the person’s legal status; (b) whether the
1
E/CN.4/2000/4, annex II.