movement is voluntary or involuntary; (c) the cause of the movement; or (d) the duration of
stay. The term shall also be taken to include asylum seekers, refugees and stateless persons.
I. The right to personal liberty and the right of migrants not to
be detained arbitrarily
7.
The right to personal liberty is fundamental and extends to all persons at all times and
circumstances, including migrants and asylum seekers, irrespective of their citizenship,
nationality or migratory status.2 Furthermore, as stated in article 13 of the Universal
Declaration of Human Rights, everyone has the right to leave any country, including his own,
and return to his own country.
8.
The prohibition of arbitrary detention is absolute, meaning that it is a non-derogable
norm of customary international law, or jus cogens.3 Arbitrary detention can never be
justified, including for any reason related to national emergency, maintaining public security
or the large movements of immigrants or asylum seekers. This extends both to the territorial
jurisdiction and effective control of a State.
II. The right to seek and enjoy asylum and the noncriminalization of migration
9.
Seeking asylum is a universal human right, the exercise of which must not be
criminalized.4
10.
The irregular entry and stay in a country by migrants should not be treated as a
criminal offence, and the criminalization of irregular migration will therefore always exceed
the legitimate interests of States in protecting their territories and regulating irregular
migration flows.5 Migrants must not be qualified or treated as criminals, or viewed only from
the perspective of national or public security and/or health.6
11.
The deprivation of liberty of an asylum-seeking, refugee, stateless or migrant child,
including unaccompanied or separated children, is prohibited.7
III. Exceptionality of detention in the course of migration
proceedings
12.
Any form of administrative detention or custody in the context of migration must be
applied as an exceptional measure of last resort, for the shortest period and only if justified
by a legitimate purpose, such as documenting entry and recording claims or initial
verification of identity if in doubt.8
13.
Any form of detention, including detention in the course of migration proceedings,
must be ordered and approved by a judge or other judicial authority.9 Anyone detained in the
course of migration proceedings must be brought promptly before a judicial authority, before
which they should have access to automatic, regular periodic reviews of their detention to
2
See Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para.
3.
3 See general comment No. 35, para. 66.
4
See Universal Declaration of Human Rights, art. 14; the Convention relating to the Status of
Refugees; and the Protocol relating to the Status of Refugees.
5
See A/HRC/13/30, para. 58; and A/HRC/7/4, para. 53.
6
See A/HRC/10/21, para. 68.
7
See A/HRC/30/37, para. 46. See also E/CN.4/1999/63/Add.3, para. 37; A/HRC/27/48/Add.2, para.
130 and A/HRC/36/37/Add.2, paras 41-42.
8
See the Convention relating to the Status of Refugees, art. 31.
9 See A/HRC/13/30, para. 61; Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, Principle 4; E/CN.4/1999/63/Add.4, para. 51; and E/CN.4/2003/8/Add.2,
para. 64 (a). See also A/HRC/13/30/Add.2, para. 79 (e).
2