DETENTION OF MIGRANTS AND REFUGEES AND THEIR PROTECTION UNDER INTERNATIONAL LAW

AUTHORS:

Ipsa, IMS Unison Dehradhun

Khushi Malhotra, JEMTECH Noida

Priyanshu Bhayana, NLU Orissa

Simmi, MM(DU), Mullana

Ramya, Alliance University, Bengaluru

EDITOR: Tanya Kanchan Soni, HNLU Raipur



Definition of migrant:

A person who moves away from his or her place of usual residence, whether within a country or across an international border, temporarily or permanently, and for a variety of reasons. The term includes a number of well-defined legal categories of people, such as migrant workers; persons whose particular types of movements are legally-defined, such as smuggled migrants; as well as those whose status or means of movement are not specifically defined under international law, such as international students.

Detention:

According to international conventions and statues:

“Detention” refers to the deprivation of liberty or confinement in a closed place which an asylum-seeker isn’t permitted to go away at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities.

Refugees:

Refugees according to the 1951 Convention definition: persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion;

armed conflict, which can be rooted in and/or conducted along lines of race, ethnicity, religion, politics, gender or social group divides;

violence perpetrated by organized gangs, traffickers, and other non-State actors, against which the State is unable or unwilling to protect;

persecution on the idea of sexual orientation or gender identity;

disasters (including drought or famine) where they are linked to situations of persecution or armed conflict rooted in racial, ethnic, religious, or political divides, or disproportionately affect particular groups.

History of human migration

Historically, early human migration includes the world's population, that is, migration to regions of the world where there was previously no human habitation, during the Upper Paleolithic. From the Neolithic, most migrations (except the remote regions like the Arctic or Pacific) were mainly fighters, comprises conquest or Landnahme by expanding populations. Colonialism involves the expansion of sedentary populations in previously only sparsely established territories or territories without permanent settlements. In the current scenario, migration has taken the form of migration within and betwixt existing sovereign states, either controlled (legal immigration) or uncontrolled and in breach of immigration laws (illegal immigration).

RIGHTS OF REFUGEES AND MIGRANTS UNDER INTERNATIONAL LAW

Human rights form the base of human existence thus, are of great importance. After a long period of struggle, they are at this point well-established under The Universal Declaration of Human Rights charter and The Human Rights Convention document. These documents provide civil, political, economic, social, and cultural rights to every individual either a refugee, migrant, or full-fledged citizen.

The article enumerated under the Universal Declaration of Human Rights applies to every living being from the day of his birth to death. The people among the territory of various nations especially the refugees and migrants are protected under these articles and various other Conventions. Some of the important rights available to the Refugees and Migrants are given below-

1) Right to freedom from torture or inhumane treatment: Article 5 of the Universal Declaration of Human Rights states that ‘No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment.’[1] This implies that to achieve the purposes of the Convention, the refugees and migrants must be protected from the inhumane treatment.

2) Right to freedom of opinion and expression: Article 2 of UDHR[2] states that everyone has the right to freedom of opinion and expression and no distinction be made based on race, color, sex, national or social region, birth, place. Further, there must not be any distinction based on the political, jurisdictional, or international status of the country or territory to which a person belongs.

3) Right to freedom of thought, conscience and religion: Article 18 of UDHR states that everyone has the right to freedom of thought, conscience, and religion which includes changing his/her religion or belief, manifest his/her religion in teaching, worship, etc.[3] No person even if he or she is a migrant or has a refugee status be forced to change his religion.

4) Freedom from Discrimination: Article 7 of UDHR1[4] states that ‘All are equal before the law and are entitled without any discrimination to equal protection of the law.’ This means that everyone is equal in the eyes of law and all persons should not be treated without any discrimination.[5] Here, the discrimination in the case of refugees and migrants does not include those opportunities which are available only to the citizens but discrimination in matters of basic necessities like food, safety, right against exploitation, and shelter.

RIGHTS AND OBLIGATIONS OF COUNTRIES MAKING DETENTION

The refugees and migrants have certain rights under International Law. To protect these rights, the states are also obligated. The State has an obligation to oversee whether the rights provided to all the people within their territory and under their jurisdiction is being exercised or are just for the namesake. Some specific rights are also offered to both migrants and refugees during the detention and are mentioned by the International Organisation for Migration (IOM).[6]

According to the International Migration Law Unit[7], the obligations of the states are discussed below-

1. Right to be informed upon entry in the territory and while in detention: the asylum seekers or immigrants must be informed, in the language he/she understands, the reason behind the refusal to enter the border or for their removal from the territory. The state authorities are under the obligation to disclose the grounds of detention.

2. Right to communicate with the outside world: The persons detained should be given access to communicate with the outside world through electronic mail, fax, and telephone. It is the obligation of the state to provide the lawyer or any representative and relatives both in the country of destination and country of origin.

3. Obligation to establish a maximum period of detention in national legislation: The maximum period of detention must be established by the law to avoid any kind of harassment and exploitation. After the expiry of the detention period, the detained person must be released automatically and the State must provide for periodic reviews of detention.

4. Right to humane detention conditions and obligation to respect the inherent dignity of every human person: As stated by Article 10 of ICCPR[8], all persons must be treated with respect for the inherent dignity of the human person. It is the obligation of the State, not to treat a person inhumanly and to take positive measures. In case, the State fails to take any such measure then, the State will be held responsible for the violation of Article 7 of ICCPR which prohibits torture and cruel, inhumane, and degrading treatments.

5. Obligation to allow monitoring of reception centre: The State must establish a monitoring system to overlook all detention facilities. The media should be granted access to such centres to ensure transparency and accountability, without encroaching on detainee’s right to privacy.

6. Prohibition to detain vulnerable individuals: The decision of detaining an individual or extending the period of detention of the person depends on characteristics and circumstances like physical and mental health, history of torture, age, family, pregnancy, etc. The vulnerable individuals which include the victims of trafficking, torture, sexual violence should not be detained. Under any circumstances, if such people are detained then proper care must be taken with health care and skilled professional support.[9]

AGENCIES MONITORING REFUGEE AND IMMIGRANT UNRESTS

A surfeit of agencies works toward ensuring that the right to seek asylum and refuge, of those who face persecution, holds good and monitor immigrant and refugee movements to guard those who seek to enforce those rights.[10]

I. The U.N. High Commission for Refugees.

The UNHCR is an organ of the U.N. Organization, established in 1950, which works for the protection of refugees, forcibly displaced communities and assist in their repatriation. The UNHCR won two Nobel Prizes for its work in 1954 and 1981.it was founded as a subsidiary of the General Assembly and had primarily replaced the International Refugee Organization since it fell out of favour, post the World War II.[11]

II. The U.N. Relief and Works Agency for Palestine Refugees in the Near East.

The UNRWA is a specialized subsidiary of the U.N. which exclusively works for the welfare and voluntary repatriation of Palestinian refugees, to mitigate the disastrous aftereffects of the Palestinian war of 1948.[12]

III. The U.N. International Organization for Migration.

The UN IOM, set up in 1951, is an organization that works towards the humane and just treatment of migrants. With a roster of 173 members comprising of governmental, inter-governmental, and non-governmental bodies, the organisation aims at attaining well facilitated and developmental migration, ultimately ensuring Freedom of Movement for the displaced.[13]

IV. Organisation for Economic Co-operation and Development.

OECD is a global economic organisation with an intergovernmental framework spanning across 37 member nations. Founded in 1948, initially as Organization for European Economic Co-operation, OECD works for many objectives such as emigrational economics, integration of politics and economies, monitoring of emigrational factions, etc.

V. Human Rights Watch.

Human Rights Watch is a non-governmental organisation that advocates for research and protection of Human Rights. The organisation is mainly known for pressuring governmental and non-governmental bodies to relent on using abusive and inhumane behaviour concerning immigrants or refugees. HRW won a Nobel Peace Prize in 1997, as a founding member of the International Campaign to Ban Landmines.[14]

VI. Amnesty International.

Amnesty International or A.I. is a non-governmental organisation, headquartered in UK.AI works to enforce the rights in the U.N. Declaration of Human Rights, comprising of eight million members worldwide. It aims at promoting tranquillity concerning the procurement of Human Rights and works towards disarmament of abusive campaigns preaching hostility against refugee groups.[15]

GUIDELINES FOR DETENTION OF IMMIGRANTS

The United Nations High Commission for Refugees, a stalwart, amongst peace organisations, has provided a 10-Guideline document, to be applicable in rem, pertaining to the Detention of Asylum seekers, namely, Guidelines on the Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers and Alternatives to Detention.

The guidebook defines Detention as under;

“the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centers or facilities.; followed by places of Detention comprising of the most public of places, like airports or borders, to places run by private contractors specially built for this process.

It is further mentioned in the document that “Regardless of the name given to a particular place of detention, the important questions are whether an asylum-seeker is being deprived of his or her liberty de facto and whether this deprivation is lawful according to international law.”

THE TEN-POINT YARDSTICK

GUIDELINE 1

The right to seek asylum must be respected

GUIDELINE 2

The rights to liberty and security of person and freedom of movement apply to asylum-seekers

GUIDELINE 3

Detention must be in accordance with and authorised by law

GUIDELINE 4

Detention must not be arbitrary, and any decision to detain must be based on an assessment of the individual’s particular circumstances, according to the following:

Guideline 4.1

Detention is an exceptional measure and can only be justified for a legitimate purpose

Guideline 4.2

Detention can only be resorted to when it is determined to be necessary, reasonable in all the circumstances and proportionate to a Legitimate purpose

Guideline 4.3

Alternatives to detention need to be considered


GUIDELINE 5

Detention must not be discriminatory

GUIDELINE 6

Indefinite detention is arbitrary and maximum limits on detention should be established in law

GUIDELINE 7

Decisions to detain or to extend detention must be subject to minimum procedural safeguards

GUIDELINE 8

Conditions of detention must be humane and dignified

GUIDELINE 9

The special circumstances and needs of particular asylum-seekers must be taken into account

GUIDELINE 10

Detention should be subject to independent monitoring and Inspection Source[16]

CASE LAWS

The detention of migrants and refugees is not always unreasonable and unlawful. The following case laws show that the detention can be unlawful as well as lawful, based on the acts of the person seeking asylum or refugee.

ALAM V. DENMARK[17],

The facts of the case were, a Pakistani national Alam, a permanent resident of Denmark, living with her children, and married in 2015. She was in touch with her relatives in Pakistan and followed the Pakistani culture. She was convicted of murder, arson, and aggravated robbery in 2013 and was awarded imprisonment for 16 years and expulsion from Denmark for the same. She filed a petition against her expulsion from Denmark citing the reasons that she will be separated from her husband and children.

The European Court of human rights unanimously declared that the punishment does not seem to be misappropriated, in light of the serious offences committed by her against the state[18].

In S.K. V. RUSSIA[19], SK was a Syrian national who was detained by the Russian authorities and was to be deported to his home country. SK filed a suit claiming that his detention and deportation will violate Article 2 (right to life) and Article 3 (prohibition of ill-treatment) of the European Convention on Human Rights. These grounds were based on the non-humanitarian situation prevailing in Syria. The court on 14 May 2017 held that the detention and removal of the appellant will violate Articles 2 and 3, in addition to article 5 § 1 of right to liberty and article 5 § 4 which deals with the right to have the lawfulness of detention decided speedily by a court. It was further observed by the court that it would be appropriate to release SK without any delay.[20]

In AHMAD V. THE UNITED KINGDOM[21], the European Court of human rights on 2 March 2017 dismissed the appeal pertaining to quash the order of the secretary of state for the deportation of Ahmed and relief for his unlawful detention during the period of 2008 and 2011. The court held that there was no violation of article 5 (1) (f) - right to liberty and security of the European Convention on Human Rights as a complaint by Mr. Ahmed.

Ahmed filed an application seeking asylum in UK which was denied but he was permitted to reside in the UK till 2004. During this period, he was convicted for 10 crimes and was again convicted in 2007 for a public order offence and his failure to surrender. Keeping this in mind, he was served a notice from the secretary of state regarding his deportation to his country and he was detained for the same by the concerned authorities.[22]

In BISTIEVA AND OTHERS V. POLAND[23], Zita Bistieva and her three minor children applied for refugee status in the country of Poland but were detained to be removed back to Russia for a period of nearly 6 months. They filed an application claiming that their administrative detention had been in breach of article 5 § 1 and article 5 § 4 and article 8[24] of the European convention on human rights.

The court on 10th July 2018 held, the complaint under article 5 § 1 and 4 of the convention inadmissible under article 35 §§ 1 and 4 of the convention and for non-Exhaustion of domestic remedies. However, a complaint under article 8 of the convention was declared to be admissible.[25]

[1] The Universal declaration of Human Rights, (11-07-20, 22:37), https://www.un.org/en/universal-declaration-human-rights/index.html [2] The Universal declaration of Human Rights [3] UDHR Charter 2 The Universal Declaration of Human Rights [5] The Universal declaration of Human Rights, (12-07-20, 12:50), https://www.un.org/en/universal-declaration-human-rights/index.html [6] IOM UN Migration, https://www.iom.int/ [7] APPENDIX – B, International Standards on Immigration Detention and Non-Custodial Measures- November 2011 [8] International Covenant on Civil and Political Rights (ICCPR) [9] THE RESPONSIBILITIES AND OBLIGATIONS OF MIGRANTS TOWARDS HOST COUNTRIES- The Global Compact Thematic Paper (12-07-20, 22:49), https://www.iom.int/sites/default/files/our_work/ODG/GCM/IOM-Thematic-Paper-Responsibilities-and-obligations-of-migrants.pdf [10] IMMIGRANTS AND REFUGEES, INTERGOVERNMENTAL ORGANISATION (IOGs) (10-07-2020, 12:28) https://guides.libraries.psu.edu/c.php?g=623034&p=4380195 [11] UNHCR the U.N. Refugee Agency, THE HIGH COMMISSION (11-07-20, 12:23) https://www.unhcr.org/en-in/the-high-commissioner.html [12] IOM UN MIGRATION, (09-07-2020, 22:09), https://www.iom.int/about-iom [13] OECD, Better Policies for Better Lives, (10-07-20, 09:10), https://www.oecd.org/about/ [14] HUMAN RIGHTS WATCH, (09-07-20, 23:01), https://www.hrw.org/about/about-us [15] We are a diverse and democratic movement of people who share fundamental global values – dignity, freedom, justice, equality for all (09-07-2020, 20:30), https://amnesty.org.in/about-us/who-we-are/ [16] Detention Guidelines by UNHCR the U.N. Refugee Agency, (10-07-2020, 10:30) https://www.refworld.org/pdfid/503489533b8.pdf [17] application number 33809/15 [18] Press Release issued by the registrar of Court, ECHR 228 (2017), https://hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-5769882-7335482%22]} [19] application number 52722/15 [20] Case of S.K. v. Russia (10-07-20, 20:01), https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-171101%22]} [21] Application number 59727/13 [22] Newsletter on migration and refugees - March 2017, (09-07-2020, 16:34), https://www.coe.int/en/web/portal/-/recent-ecthr-case-law-on-expulsion-and-detention?inheritRedirect=true [23] application number 75157/14 [24] Guide on Article 8 of the European Convention on Human Rights Right to respect for private and family life, home and correspondence, (12-07-2020, 11:06) https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf [25] Case of Bistieva and ors. v. Poland, (12-07-2020, 10:32) https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-182210%22]}

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