Migration-Related Detention

amnesty international
Migration-Related Detention:
A research guide on human rights standards relevant to
the detention of migrants, asylum-seekers and refugees.
Photograph of a container used to detain irregular migrants on Chios Island, Greece in 2005 © Refugee
Solidarity Committee
November 2007
AI Index: POL 33/005/2007
INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM

TABLE OF CONTENTS
Introduction....................................................................................................................1
Using this guide .............................................................................................................3
Amnesty International Policy ........................................................................................6
AI Policy: Refugees and asylum-seekers...................................................................6
AI Policy: Migrants....................................................................................................9
Recent Amnesty International documents on migration-related detention..................11
1. Human Rights Standards – presumption against detention .....................................12

1. Right to Liberty................................................................................................12
1.2 Freedom of Movement.....................................................................................15
1.3 Prohibition of detention on the basis of illegal entry or presence....................18
2. Human Rights Standards – Restrictions on the use of detention .............................21

2.1 Prohibition of arbitrary detention.....................................................................21
2.2 Exceptional grounds for detention ...................................................................31
2.3 Right to be informed of the reasons for detention ...........................................36
2.4 Right to challenge the lawfulness of detention before a judicial body ............38
2.5 Access to counsel and right to legal assistance and interpretation ..................45
2.6 Right to compensation .....................................................................................49
3. Human Rights Standards – Conditions of detention................................................52

3.1 Protection against torture, cruel, inhuman or degrading treatment..................52
3.2 Humane conditions in detention ......................................................................55
3.3 Communication with the outside world (family and organizations) ...............61
3.4 Communication with consular officials – relevant to migrants only...............65
3.5 Access to medical care.....................................................................................68
3.6 Place of detention.............................................................................................74
3.7 Record keeping and inspection ........................................................................78
4. Human Rights Standards – General: Non-Discrimination and Proportionality.......82
5. Human Rights Standards – Standards relating to particular groups ........................88

5.1 Children............................................................................................................88
5.2 Women.............................................................................................................95
5.3 Other vulnerable categories .............................................................................96
6. Standards and bodies cited in this guide ..................................................................98
AI Index: POL 33/005/2007 Amnesty International

Migration-Related Detention:
A research guide on human rights standards
relevant to the detention of migrants, asylum-
seekers and refugees.
Introduction
Many countries in the world now detain those arriving at their borders in search of a new life.
Migrants, asylum-seekers and refugees all suffer from violations of their human rights as
states mistakenly regard detention as a deterrent against undesired migratory flows. Serious
factors motivate individuals to depart their homes and travel to other countries, such as civil
war, human rights violations, economic or environmental problems, and these factors are
more decisive than any deterrent effect of detention.
Detention for the purposes of migration control can take many forms, including detaining
people in penal institutions, specialized detention centres, restricted movement arrangements
as well as in closed camp settings. In some countries detention in such situations is mandatory,
and can be for prolonged or indefinite periods. In some, children are not spared and are also
condemned to the harsh confinement of detention.
Whilst acknowledging that certain exceptional circumstances may exist where detention may
not be able to be avoided, Amnesty International believes that as a general rule it should not
occur. Amnesty International is opposed to most practices of migration-related detention due
to their negative impact on the human rights of individuals detained and the fact that states
often use detention as a means of punishment instead of dealing with the root causes of
migratory movements.
This research guide seeks to highlight human rights standards relevant to the issue of
migration-related detention. 1 It is aimed at providing individuals working on the issue of
migration-related detention with information about the human rights standards which place
limitations on this practice. The guide contains various international and regional standards
relevant to migration-related detention as well as Amnesty International’s policy on the issue,
which is derived from these standards. The human rights standards contained in this document
1
This document outlines resources to facilitate research on the international human rights standards relevant to
migration-related detention of asylum-seekers, refugees and migrants. Migration-related detention is understood to
mean detention for migration-related reasons, and not extending to detention of migrants for general criminal or
penal reasons or for terrorism or national security related reasons separate from migration for forced or voluntary
migrants. In addition to standards specifically relevant to migration-related detention, the guide includes some
reference to standards relevant to other forms of detention or imprisonment, such as the Standard Minimum Rules
for the Treatment of Prisoners.

2
bring to light the fact that international law contains a presumption against detention, places
clear restraints on its usage and requires that where it does take place, the conditions are
humane and the human rights of detainees are respected. Special attention is also given to
standards relating to particular groups of concern, including children and other vulnerable
categories.
In this guide the term migrant is used to indicate a person who is not an asylum-seeker or
refugee, but a person who moves from one place to another to live and usually to work, either
temporarily or permanently. Migrants, while distinct from the categories of asylum-seeker
and refugee, may similarly have been compelled to leave, for example because they do not
have access to adequate food, water or shelter, or in order to ensure the safety and security of
themselves and their families. They may move to take up employment, or to be reunited with
family members. Many migrants leave for a combination of reasons.
The terms refugee and asylum-seeker in this context refer to the specific categories of persons
as recognised under international law which provide protection to persons fleeing persecution,
conflict or human rights abuses. In addition to the standards contained in this guide that apply
to all migrants, persons who fall into the categories of refugee or asylum-seeker also benefit
from an additional set of specific standards.

3
Using this guide

This research guide is intended to facilitate research on selected human rights aspects of the
migration-related detention of refugees, asylum-seekers and migrants. This document
provides the reader with an overarching human rights framework against which practices in
domestic settings can be compared, contrasted and critiqued. It aims to assist activists,
researchers, decision-makers and lobbyists in their work on the issue of detention of forced
and voluntary migrants by highlighting some of the relevant rights and protections
encompassed in international law. It must be noted that this guide is not meant to be
comprehensive of all standards relevant to migration-related detention. Selected rights have
been chosen, and some human rights standards relating to migration-related detention are not
covered by this document - for example, aspects of the conditions of detention including
rights to education, privacy and religion,2 as well as the issue of alternatives to detention,3 are
not included in this document.
The guide firstly highlights Amnesty International’s approach to the issue, setting out our
policy on detention of asylum-seekers and refugees, and our policy on detaining migrants.
Recent Amnesty International documents are also listed in this part of the guide. The research
guide itself is focussed on setting out the international and regional human rights standards
relevant to migration-related detention generally, and standards specifically applicable to
refugees and asylum-seekers. These standards are set out in five parts:
1) Presumption against detention; 2) Restraints on the usage of detention; 3) Conditions of

detention; 4) Non-discrimination and proportionality; 5) Standards relating to particular
groups.
The human rights standards relevant to the issue of migration-related detention stem from a
range of sources. International human rights law comes in a variety of forms, including what
is known as “hard law”: treaties and conventions, as well as taking the form of “soft law”, or
non-treaty standards such as General Assembly resolutions, reports of Special Rapporteurs or
advisory opinions. Aiming to provide the reader with a comprehensive review of sources of
human rights protection, this guide contains varying types of international standards. Whilst
all sources can be useful for the purposes of human rights research, it is important to
understand the different types of standards and the different weighting given to each type in
the context of international law.
2
For further information please refer to, among other things, UN Standard Minimum Rules for the Treatment of
Prisoners; UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment;
UNHCR’s Revised Guidelines on the Detention of Asylum-Seekers.
3
For information on alternatives to detention please refer to, for example, UNHCR Legal and Protection Policy,
Research Series, Alternatives to Detention of Asylum Seekers and Refugees, Ophelia Field and Alice Edwards,
External Consultants, (2006), European Council on Refugees and Exiles (ECRE), Research Paper on Alternatives
to Detention: Practical alternatives to the administrative detention of asylum seekers and rejected asylum seekers,
(1997).
Amnesty International AI Index: POL 33/005/2007

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Treaties
The standards called covenants, conventions, charters and protocols are treaties which are
legally binding on the states that have agreed to be bound by them. Some treaties, such as the
International Covenant on Civil and Political Rights and the International Convention on the
Protection of the Rights of All Migrant Workers and Members of their Family (‘Migrant
Workers Convention’), are open to ratification by countries all over the world. Other treaties
are open only to states that belong to a particular regional organization.4
States can agree to be bound by these treaties in one of two ways. They can use the two-step
process of signature and ratification, or they can take the single step of accession. When a
state signs a treaty, it formally declares its intention to ratify that treaty in the future. Once it
has signed, the state may not engage in acts inconsistent with the object and purpose of the
treaty. When it ratifies or accedes to the treaty, the state becomes a party to that treaty. A state
party to a treaty promises to abide by all the provisions contained in the treaty and to fulfil its
obligations under the treaty. Consideration of the ratification status of a treaty is an important
factor when undertaking research. Some international instruments, such as the Convention on
the Rights of the Child, are widely ratified 5 , whilst others, such as the Migrant Workers
Convention, are ratified to a greater extent in some geographic regions than others. 6
Information on the current status of ratifications of a particular treaty is available on the
website of the Office of the High Commissioner for Human Rights.7
Treaty monitoring bodies

Guidance to interpreting the provisions contained in international treaties is provided by the
comments, decisions and findings of treaty monitoring bodies and human rights courts. 8
These are bodies established by the treaties or by the UN or regional bodies to monitor
implementation of the treaty and to investigate complaints that the provisions of the treaty
have been violated.
Other (non-treaty) standards

There are many human rights standards relevant to detention of migrants, refugees and
asylum-seekers which are contained in non-treaty standards. Non-treaty standards are usually
4
These include the African Charter on Human and Peoples' Rights, the American Convention on Human Rights,
the Arab Charter of Human Rights and the European Convention for the Protection of Human Rights and
Fundamental Freedoms.
5
As of June 2007 all countries in the world except for the United States of America and Somalia were parties to
the Convention on the Rights of the Child.
6
As of June 2007 there were 37 ratifications and 15 signatures to the Migrant Workers Convention. Information
on ratifications of the Migrant Workers Convention can be found at:
http://www.december18.net/web/general/page.php?pageID=79&menuID=36&lang=EN#eleven. Ratification
information on this and other treaties may also be found at: http://www.ohchr.org, however that site is not updated
as regularly.
7
Available at http://www.ohchr.org.
8
Please note this guide does not cover jurisprudence of human rights courts in any significant manner. Reference
is made at times to some relevant decisions, but this is not comprehensive.

5
called declarations, principles, rules and so on. The Universal Declaration of Human Rights,
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment 9 and the Standard Minimum Rules for the Treatment of Prisoners 10 are
examples of non-treaty standards which set out important human rights guarantees. Although
they do not have the legal power of treaties, they have the persuasive force of having been
negotiated by governments over many years, and of having been adopted by political bodies
such as the UN General Assembly, usually by consensus, and are useful guidance in
interpreting the binding content of treaty provisions. Non-treaty standards sometimes reaffirm
principles that are already considered to be legally binding on all states under customary
international law.
Interpretations by other intergovernmental bodies, such as the UN Working Group on

Arbitrary Detention, and Special Rapporteurs of the UN Commission on Human Rights,
including the Special Rapporteur on the human rights of migrants, also provide authoritative
guidance.11 Furthermore, refugee-specific guidance is also provided by the United Nations
High Commissioner for Refugees (UNHCR) by way of guidelines or through decisions of its
Executive Committee.12
Policy
While policy statements are not binding on states or other parties, they are very influential and
serve as persuasive guidance. They are generally grounded in international human rights
standards and provide practical guidance on implementation of human rights standards.
National and regional laws and judgments

National and regional laws and judgments of domestic or regional courts are not covered in
this guide but should also be used in any analysis of migration-related detention. At times
these may serve as a source of human rights standards, and in other circumstances laws or
judgments which run contrary to international law will need to be highlighted and critiqued.
9
The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of
Principles), adopted by consensus by the UN General Assembly in 1988, contains an authoritative set of
internationally recognized standards, applicable to all states on how detainees and prisoners should be treated. The
principles set forth basic legal and humanitarian concepts and serve as a guide for shaping national legislation.
10
The Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted in 1955 by
the First UN Congress on the Prevention of Crime and the Treatment of Offenders and approved by the UN
Economic and Social Council, set out what is "generally accepted as being good principle and practice" in the
treatment of prisoners. In 1971, the UN General Assembly called on member states to implement these rules and to
incorporate them in national legislation.
11
These are known as UN thematic mechanisms. They are generally mandated to investigate complaints of a
particular type of human rights violation in all countries, whether or not the state is bound by the relevant
international human rights treaties. They can also carry out country visits, if the state concerned agrees. They can
make inquiries, including on individual cases, submit reports with findings and recommendations to governments
and report annually to the UN Human Rights Council.
12
Currently made up of 72 member States, the Executive Committee of the High Commissioner's Programme
(ExCom) meets in Geneva annually to review and approve UNHCR's programmes and budget, advise on
international protection and discuss a wide range of other issues with UNHCR and its intergovernmental and non-
governmental partners.

6
Amnesty International Policy

Amnesty International (AI) is a worldwide movement of people who campaign for
internationally recognized human rights to be respected and protected. One very important
aspect of our campaigning on human rights is the work towards securing the human rights of
refugees, asylum-seekers and migrants. We do this principally through advocacy, research
and campaigning, by exposing human rights abuses and protection failures of governments
and agencies and advocating for policy and legal changes.
Working to protect the rights of uprooted people, AI has developed policy positions on a
number of aspects relevant to the human rights of migrants and refugees. Policy on detention
of refugees and asylum-seekers has been developed, as well as in relation to the practice of
detaining voluntary migrants, including irregular migrants. These policy positions are
grounded in the international legal standards which you will find set out in the research guide
section of this document.
AI Policy: Refugees and asylum-seekers

Amnesty International is opposed to the detention of refugees and asylum-seekers apart from
in the most exceptional circumstances as prescribed by international law and standards.
Detention will only be lawful when the authorities can demonstrate in each individual case
that it is necessary and proportionate to the objective to be achieved, that it is on grounds
prescribed by law, and that it is for one of the specified reasons which international and
regional standards recognize as legitimate grounds for detaining asylum-seekers.
Amnesty International also opposes the detention of people who have claimed asylum and
whose claims have been rejected by the authorities, unless, for example, the detaining
authorities can demonstrate that there is an objective risk that the individual concerned would
otherwise abscond, and that other measures short of detention, such as reporting requirements,
would not be sufficient.
Anyone held in detention must be promptly brought before a judicial authority and be
provided with an effective opportunity to challenge the lawfulness of the decision to detain
him or her. Detention should also be for the shortest possible time.
Should government authorities continue to operate a policy of detaining people who have
sought asylum, Amnesty International urges, at minimum, the following recommendations be
adopted:
· there should be a presumption against detention provided by law;

7
· alternative non-custodial measures, such as reporting requirements, should always

be considered before resorting to detention;
· criteria for detention should be clearly set out on a legal basis;
· the decision to detain should always comply with relevant international standards
pertaining to the lawfulness of detention;
· the decision to detain should always be based on a detailed and individualized

assessment, including the personal history of, and the risk of absconding presented by,
the individual concerned. Such assessment should consider the necessity and
appropriateness of detention, including whether it is proportionate to the objective to
be achieved;
· each decision to detain should be automatically and regularly reviewed as to its

lawfulness, necessity and appropriateness by means of a prompt, oral hearing by a
court or similar competent independent and impartial body, accompanied by the
appropriate provision of legal assistance;
· detainees have the right to be informed of the reason for their detention in writing in
a language which they understand;
· detention should always be for the shortest possible time and must not be prolonged
or indefinite;
· there should be a maximum duration for detention provided by law which should be
reasonable in its length. Once this period has expired the individual concerned should
automatically be released;
· there should be a prohibition provided by law on the detention of vulnerable people

who have sought asylum, including: torture survivors, pregnant women, those with
serious medical conditions, the mentally ill and the elderly;
· there should be a prohibition on the detention of unaccompanied children provided

by law;
· there should be a prohibition provided by law for those who have sought asylum at
some stage and who are held solely under immigration-related powers to be held in
prison;
· any allegations of racism, ill-treatment and other abuses of those held in detention
should be investigated immediately in compliance with relevant international
standards and those responsible should be dealt with appropriately, including when
warranted, by disciplinary or penal measures as appropriate;

8
· people who have sought asylum and are detained should be granted access to legal
counsel, interpreters, doctors, refugee assisting organizations, members of their
families, friends, religious and social assistance in addition to the United Nations
High Commissioner for Refugees (UNHCR);
· those detained should have access to appropriate health care and psychological
counseling where appropriate.

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AI Policy: Migrants
As a general rule, Amnesty International is opposed to the use of detention for the purposes of
migration control. It is our position that detention of migrants will only be lawful when the
authorities can demonstrate in each individual case that it is necessary and proportionate to
the objective to be achieved, that alternatives will not be effective, that it is on grounds
prescribed by law, and when there is an objective risk of the person absconding. The
individuals concerned should also be provided with an effective opportunity to challenge the
decision to detain them.
Migrants have the right to liberty and to freedom from arbitrary detention. This means that
detention should be subject to restraints, including the requirement that the detention is in
accordance with the law, justified in the individual case as a necessary and proportionate
measure that conforms with international law, be subject to judicial review and for the
shortest time possible.
Should government authorities continue to operate a policy of detaining migrants, Amnesty

International urges at a minimum, the following recommendations be adopted:
· detention of migrants should be used only if, in each individual case, it is

demonstrated that it is a necessary and proportionate measure that conforms with
international law;
· criteria for detention should be clearly set out in law;
· alternative non-custodial measures, such as reporting requirements, should always

be considered before resorting to detention;
· the decision to detain should always be based on a detailed and individualized

assessment, including the personal history of, and the risk of absconding presented by,
the individual concerned. Such assessment should consider the necessity and
appropriateness of detention, including whether it is proportionate to the objective to
be achieved;
· each decision to detain should be automatically and regularly reviewed as to its

lawfulness, necessity and appropriateness by means of a prompt, oral hearing by a
court or similar competent independent and impartial body, accompanied by the
appropriate provision of legal assistance;
· detainees have the right to be informed of the reason for their detention in writing in
a language which they understand;

10
· detention should always be for the shortest possible time and must not be prolonged
or indefinite;
· there should be a maximum duration for detention provided by law which should be
reasonable in its length. Once this period has expired the individual concerned should
automatically be released;
· migrants should be granted access to legal counsel, consular officials (if desired),
interpreters, doctors, members of their families, friends, and religious and social
assistance;
· there should be a prohibition on the detention of unaccompanied children provided

by law;
· any allegations of racism, ill-treatment and other abuses of those held in detention
should be investigated immediately in compliance with relevant international
standards and those responsible should be dealt with appropriately, including when
warranted, by disciplinary or penal measures as appropriate;
· detention of migrants with psychological problems, as well as those belonging to

vulnerable categories and in need of special assistance, should be only allowed as a
measure of last resort;
· detainees should have access to adequate medical and psychological assistance.

11
Recent Amnesty International documents

on migration-related detention
• South Korea: Open letter to the President of South Korea (ASA 25/002/2007)
• Japan: Open letter to the Minister of Justice of Japan, the Hon. Ngase Jinen:
Detention of minors seeking asylum in Japan (ASA 22/002/2007)
• Spain and Morocco: Failure to protect the rights of migrants – Ceuta and Melilla one
year on (EUR 41/009/2006)
• Greece: Out of the Spotlight, The rights of foreigners and minorities are still a grey
area (EUR 25/005/2006 )
• Italy: Invisible children - The human rights of migrant and asylum-seeking minors
detained upon arrival at the maritime border in Italy (EUR 30/001/2006)
• United Kingdom: Seeking asylum is not a crime: detention of people who have
sought asylum (EUR 45/015/2005)
• Spain: The Southern Border. The State turns its back on the human rights of refugees
and migrants (EUR 41/008/2005)
• Malaysia: Human rights at risk in mass deportation of undocumented migrants (ASA
28/008/2004)
• The Netherlands: Concerns about Schiphol fire need urgent follow up (EUR
35/001/2006)
• Republic of Korea (South Korea): Migrant workers are also human beings’ (ASA
25/007/2006)
• Malta: Investigation of incidents at Hal-Safi Detention Centre finds excessive use of
force and ill-treatment of detainees by armed forces (EUR 33/002/2005)
• The human cost of "Fortress Europe": Detention and expulsion of asylum-seekers and
migrants in the EU (Amnesty International Open Letter to the incoming UK
Presidency on the occasion of World Refugee Day) (IOR 61/014/2005)
• Italy: Temporary Stay -- Permanent Rights: The treatment of foreign nationals
detained in 'temporary stay and assistance centres' (EUR 30/004/2005)
• Australia: Detention regime in breach of international human rights (ASA
12/003/2005)
• Practices of Detention and Expulsion: Human Rights at Risk (POL30/017/2005)
• UN Committee on the Elimination of Racial Discrimination: Written submission to
the CERD thematic discussion on non-citizens and racial discrimination (IOR
42/006/2004)

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1. Human Rights Standards – presumption

against detention
1.1 Right to Liberty
1.1.1 International human rights standards
1.1.1.1 Treaties
International Covenant on Civil and Political Rights, 1966

Article 9(1) Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his [or her] liberty except on such
grounds and in accordance with such procedure as are established by law.
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Family, 1990
Article 16(1) Migrant workers and members of their families shall have the right to liberty
and security of person.
1.1.1.2 Treaty Monitoring Bodies
General Comment No. 8 (1982) of the Human Rights Committee, Humane treatment of
persons deprived of their liberty (Article 9 of the ICCPR)
Article 1 . . .The Committee points out that paragraph 1 is applicable to all deprivations of
liberty, whether in criminal cases or in other cases such as, for example, mental illness,
vagrancy, drug addiction, educational purposes, immigration control, etc
1.1.1.3 General Assembly resolutions
Universal Declaration of Human Rights, 1948 (Adopted and proclaimed by General

Assembly Resolution 217 A (III) of 10 December 1948)
Article 3 Everyone has the right to life, liberty and security of person.

13
UN Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, 1988 (Adopted by General Assembly resolution 43/173 of 9 December
1988) (“Body of Principles on Detention”)
Principle 2 Arrest, detention or imprisonment shall only be carried out strictly in accordance
with the provisions of the law and by competent officials or persons authorized for that
purpose.
Declaration on the Human Rights of Individuals who are not nationals of the country in
which they live (Adopted by General Assembly resolution Adopted by General
Assembly resolution 40/144 of 13 December 1985)
Article 5
(1) Aliens shall enjoy, in accordance with domestic law and subject to the relevant
international obligation of the State in which they are present, in particular the following
rights:
(a) The right to life and security of person; no alien shall be subjected to arbitrary arrest or
detention; no alien shall be deprived of his or her liberty except on such grounds and in
accordance with such procedures as are established by law;
1.1.2 Regional human rights standards

African [Banjul] Charter on Human and Peoples’ Rights, 198113
Article 6 Every individual shall have the right to liberty and to the security of his person…
American Convention on Human Rights, 196914

Article 7 (1) Every person has the right to personal liberty and security.
American Declaration of the Rights and Duties of Man, 1948

Article I Every human being has the right to life, liberty and the security of his person.
Arab Charter on Human Rights (revised), adopted by the League of Arab States, (2004)
13
See also e.g. Krischna Achutan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera
Chirwa, Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, (64/92, 68/92, 78/92 respectively),
8th Annual Report of the African Commission, 1994-1995, ACHPR/RPT/8th/Rev.I, where the African
Commission ruled that the arrest and detention of a political figure who was detained "at the pleasure of the Head
of State" without charge or trial for 12 years violated the right to liberty set out in Article 6 of the African Charter.
14
See also e.g. Inter-American Commission, Report on the Situation of Human Rights in Argentina, 1980,
OEA/Ser.L/V/II.49, doc.19, at 189,193,291; Inter-American Commission, Report on the Situation of Human
Rights in Chile, 1985, OAS/Ser.L/V/II.66, doc.17, at 134,139; Inter-American Commission, Report on the
Situation of Human Rights in Nicaragua, 1981, OEA/Ser.L/V/II.53, at 65, where the Inter-American Commission
considered that in certain circumstances house arrest, internal exile, and banishment (forced relocation) could
violate the right to personal liberty guaranteed by Article 7 of the American Convention.

14
Article 14(1) Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest, search or detention without a legal warrant.
(2) No one shall be deprived of his liberty except on such grounds and in such circumstances
as are determined by law and in accordance with such procedure as is established thereby.
European Convention on Human Rights and Fundamental Freedoms, 195015

Article 5(1) Everyone has the right to liberty and security of person…
1.1.3 International refugee and asylum-seeker standards

1951 Geneva Convention Relating to the Status of Refugees
Article 31(1) The Contracting States shall not impose penalties, on account of their illegal
entry or presence, on refugees who, coming directly from a territory where their life or
freedom was threatened in the sense of Article 1,16 enter or are present in their territory
without authorization, provided they present themselves without delay to the authorities and
show good cause for their illegal entry or presence.
(2) The Contracting States shall not apply to the movements of such refugees restrictions
other than those which are necessary and such restrictions shall only be applied until their
status in the country is regularized or they obtain admission into another country. The
Contracting States shall allow such refugees a reasonable period and all the necessary
facilities to obtain admission into another country.
UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of Asylum Seekers, February 1999
Paragraph 1 The detention of asylum-seekers is in the view of UNHCR inherently
undesirable. This is even more so in the case of vulnerable groups such as single women,
children, unaccompanied minors and those with special medical or psychological needs…
15
See also e.g. Amuur v. France, European Court of Human Rights, Judgment of 25 June 1996, Appl. No.
19776/92 and Guzzardi v. Italy, European Court of Human Rights, Judgment of 6 November 1980, Appl. No.
7367/76
16
Article 1 provides the definition of the term "refugee" for the purposes of the 1951 Geneva Convention Relating
to the Status of Refugees.

15
1.2 Freedom of Movement17
1.2.1.1 Treaties

Article 12(1) Everyone lawfully18 within the territory of a state shall, within that territory,
have the right of liberty of movement and freedom to choose his residence.
(3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order, public health or
morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
International Convention on the Elimination of All Forms of Racial Discrimination

(1969)
Article 5 (d)(i) The right to freedom of movement and residence within the border of the State.
General Comment No. 27 (1999) of the Human Rights Committee, Freedom of

movement (Art.12 of the ICCPR)
Para 2 The permissible limitations which may be imposed on the rights protected under
article 12 must not nullify the principle of liberty of movement, and are governed by the
requirement of necessity provided for in article 12, paragraph 3, and by the need for
consistency with the other rights recognized in the Covenant.
Para 4. Everyone lawfully within the territory of a State enjoys, within that territory, the right
to move freely and to choose his or her place of residence. . .The question whether an alien is
"lawfully" within the territory of a State is a matter governed by domestic law, which may
subject the entry of an alien to the territory of a State to restrictions, provided they are in
compliance with the State's international obligations. In that connection, the Committee has
held that an alien who entered the State illegally, but whose status has been regularized, must
be considered to be lawfully within the territory for the purposes of article 12.19 Once a person
17
For further see below at Section 2.2
18
See below at Section 1.2.1.2.
19
Celepli v. Sweden, Human Rights Committee Communication No. 456/1991, U.N. Doc.
CCPR/C/51/D/456/1991 (1994). para. 9.2.

16
is lawfully within a State, any restrictions on his or her rights guaranteed by article 12,
paragraphs 1 and 2, as well as any treatment different from that accorded to nationals, have to
be justified under the rules provided for by article 12, paragraph 3.20 It is, therefore, important
that States parties indicate in their reports the circumstances in which they treat aliens
differently from their nationals in this regard and how they justify this difference in treatment.
Para 14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions
serve the permissible purposes; they must also be necessary to protect them. Restrictive
measures must conform to the principle of proportionality; they must be appropriate to
achieve their protective function; they must be the least intrusive instrument amongst those
which might achieve the desired result; and they must be proportionate to the interest to be
protected.
Para 15 The principle of proportionality21 has to be respected not only in the law that frames
the restrictions, but also by the administrative and judicial authorities in applying the law.
States should ensure that any proceedings relating to the exercise or restriction of these rights
are expeditious and that reasons for the application of restrictive measures are provided.
Celepli v. Sweden, Human Rights Committee Communication No. 456/1991

A Turkish citizen of Kurdish origin was granted permission to stay in Sweden but not refugee
status. He was subsequently subjected to a deportation order on the grounds of suspicion of
involvement in terrorist activities. The expulsion order, however, was not enforced as it was
believed that he (and his fellow suspects) could be exposed to political persecution in Turkey
if returned. Instead, the Swedish authorities prescribed limitations and conditions concerning
their place of residence. The HRC found that the person concerned, having been allowed to
stay in Sweden, albeit subject to conditions was considered to be lawfully in the territory of
Sweden for the purposes of article 12. Sweden justified its restrictions on the ground of
national security under article 12(3), which was accepted by the Committee. (para. 9.2)
Universal Declaration of Human Rights, 1948

Article 13(1) Everyone has the right to freedom of movement and residence within the
borders of each state.
20
General Comment No. 15, para. 8, in HRI/GEN/1/Rev.3, 15 August 1997, p. 20.
21
For further see below at Section 4.

17
Article 12(1) Every individual shall have the right to freedom of movement and
residence within the borders of a State provided he abides by the law.
American Convention on Human Rights 1969

Article 22(1) Every person lawfully in the territory of the State Party has the right to
move about in it and to reside in it subject to the provisions of the law.
(2) Every person has the right to leave any country freely, including his own.
(3) The exercise of the foregoing rights may be restricted only pursuant to a law to the
extent necessary in a democratic society to prevent crime or to protect national
security, public safety, public order, public morals, public health, or the rights or
freedoms of others.
(4) The exercise of the rights recognized in paragraph 1 may also be restricted by law
in designated zones for reasons of public interest.
Article 32(2) the rights of each person are limited by the rights of others, by the
security of all, and by the just demands of the general welfare in a democratic society.
Arab Charter on Human Rights (revised), adopted by the League of Arab States, 2004
Article 26( 1) Everyone lawfully within the territory of a State party shall, within that territory,
have the right to freedom of movement and to freely choose his residence in any part of that
territory in conformity with the laws in force.
4th Protocol to the European Convention on Human Rights and Fundamental Freedoms,
196322
Article 2(1) Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
(2)Everyone shall be free to leave any country, including his own.
(3) No restrictions shall be placed on the exercise of these rights other than such as are in
accordance with law and are necessary in a democratic society in the interests of national
security or public safety for the maintenance of 'ordre public', for the prevention of crime, for
the protection of rights and freedoms of others.
(4)The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions
imposed in accordance with law and justified by the public interest in a democratic society.
22
See also e.g. Guzzardi v. Italy, European Court of Human Rights, Judgment of 6 November 1980, (1981) 61
I.L.R. 227; also (1981) E.H.R.R 333

18

Article 26 Each Contracting State shall accord to refugees lawfully in its territory the right to
choose their place of residence and to move freely within its territory subject to any
regulations applicable to aliens generally in the same circumstances.
Article 31(2) The Contracting States shall not apply to the movements of such refugees
restrictions other than those which are necessary and such restrictions shall only be applied
until their status in the country is regularized or they obtain admission into another country.
The Contracting States shall allow such refugees a reasonable period and all the necessary
1.3 Prohibition of detention on the basis of illegal

entry or presence
1.3.1.1 Other
Report of UN Special Rapporteur on the Human Rights of Migrants, Gabriela

Rodríguez Pizarro, E/CN.4/2003/85
Paragraph 43…detention should never be punitive in nature.
Recommendations
Paragraph 73 Infractions of immigration laws and regulations should not be considered
criminal offences under national legislation. The Special Rapporteur would like to stress that
irregular migrants are not criminals per se and they should not be treated as such. Detention of
migrants on the ground of their irregular status should under no circumstance be of a punitive
nature.
Paragraph 74 Governments should consider the possibility of progressively abolishing all

forms of administrative detention.

19

freedom was threatened in the sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence.

Detention of Asylum Seekers, 1999
Guideline 2 As a general principle asylum-seekers should not be detained. According to
Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum
is recognized as a basic human right. In exercising this right asylum-seekers are often forced
to arrive at, or enter a territory illegally. However the position of asylum-seekers differs
fundamentally from that of ordinary aliens in that they may not be in a position to comply
with the legal formalities for entry. This element, as well as the fact that asylum-seekers have
often had traumatic experiences, should be taken into account in determining any restrictions
on freedom of movement based on illegal entry or presence.
Guideline 3 …Detention of asylum-seekers which is applied for purposes other than those
listed above, for example, as part to deter future asylum-seekers, or to dissuade those who
have commenced their claims from pursuing them, is contrary to the norms of refugee law. It
should not be used as punitive or disciplinary measures for illegal entry or presence in the
country. Detention should also be avoided for failure to comply with administrative
requirements or other institutional restrictions to residency at reception centres, or refugee
camps.
UNHCR ExCom Conclusion No. 22 (XXXII) – 1981, Protection of Asylum Seekers in

Situations of Large-Scale Influx
Paragraph 2 It is therefore essential that asylum-seekers who have been temporarily admitted
pending arrangements for a durable solution should be treated in accordance with the
following minimum basic human standards:
(a) they should not be penalized or exposed to any unfavourable treatment solely on the
ground that their presence in the country is considered unlawful; they should not be subjected

20
to restrictions on their movements other than those which are necessary in the interest of
public health and public order;
ExCom Conclusion No. 44 (XXXVII) – 1986, Detention of Refugees and Asylum-Seekers

Paragraph (a) Noted with deep concern that large numbers of refugees and asylum-seekers in
different areas of the world are currently the subject of detention or similar restrictive
measures by reason of their illegal entry or presence in search of asylum, pending resolution
of their situation;
ExCom Conclusion No. 55 (XL) – 1989 General Conclusion on International Protection

Paragraph (g) Noted with deep concern that large numbers of refugees and asylum-seekers in
different areas of the world are currently the subject of detention or similar restrictive
measures by reason of their illegal entry or presence in search of asylum, pending resolution
of their situation and reiterated its Conclusion No. 44 (XXXVII) which circumscribes the
grounds for detention of such persons;
ExCom Conclusion No. 85 (XLIX) – 1998) Conclusion on International Protection

Paragraph (ee) Notes with concern that asylum-seekers detained only because of their illegal
entry or presence are often held together with persons detained as common criminals, and
reiterates that this is undesirable and must be avoided whenever possible, and that asylum-
seekers shall not be located in areas where their physical safety is in danger;
ExCom Conclusion No. 97 (LIV) – 2003, Protection Safeguards in Interception

Measures
Paragraph (a) (vi) [The Executive Committee recommends that] [i]ntercepted asylum-
seekers and refugees should not become liable to criminal prosecution under the Protocol
Against the Smuggling of Migrants by Land, Sea or Air for the fact of having been the object
of conduct set forth in article 6 of the Protocol; nor should any intercepted person incur any
penalty for illegal entry or presence in a State in cases where the terms of Article 31 of the
1951 Convention are met;

21
2. Human Rights Standards – Restrictions

on the use of detention
2.1 Prohibition of arbitrary detention
2.1.1.1 Treaties

Article 9(1) …No one shall be subjected to arbitrary arrest or detention…
Article 16(4) Migrant workers and members of their families shall not be subjected
individually or collectively to arbitrary arrest or detention; they shall not be deprived of their
liberty except on such grounds and in accordance with such procedures as are established by
law.
General Comment No. 8 (1982) of the Human Rights Committee, Right to Liberty and
Security of persons (Article 9 of the ICCPR)
Paragraph (1) . . .The Committee points out that paragraph 1 is applicable to all deprivations
of liberty, whether in criminal cases or in other cases such as, for example, mental illness,
vagrancy, drug addiction, educational purposes, immigration control, etc
General Recommendation No.30 (2004) of the Committee on the Elimination of Racial

Discrimination, Discrimination Against Non Citizens.
Paragraph (19) Ensure the security of non-citizens, in particular with regard to arbitrary
detention, as well as ensure that conditions in centres for refugees and asylum-seekers meet
international standards;

22
A. v. Australia, Human Rights Committee Communication No 560/1993: Australia.

30/04/97. CCPR/C/59/D/560/1993
The author, a Cambodian asylum-seeker, arrived in Australia and shortly thereafter applied
for refugee status. His asylum application was refused and later ‘A’ appealed this decision
and was detained for over four years whilst his refugee status was being determined. The
author argued inter alia that he had been detained arbitrarily within the meaning of article
9(1).
The Committee concluded that:

“…the notion of “arbitrariness” must not be equated with “against the law” but be interpreted
more broadly to include such elements as inappropriateness and injustice. Furthermore,
remand in custody could be considered arbitrary if it is not necessary in all circumstances of
the case, for example to prevent flight or interference with evidence: the element of
proportionality becomes relevant in this context.” (para. 9.2)
“The Committee observes however, that every decision to keep a person in detention should
be open to review periodically so that the grounds justifying the detention can be assessed. In
any event, detention should not continue beyond the period for which the State can provide
appropriate justification. For example, the fact of illegal entry may indicate a need for
investigation and there may be other factors particular to the individuals, such as the
likelihood of absconding and lack of cooperation, which may justify detention for a period.
Without such factors detention may be considered arbitrary, even if entry was illegal. In the
instant case, the State party has not advanced any grounds particular to the author's case,
which would justify his continued detention for a period of four years, during which he was
shifted around between different detention centres. The Committee therefore concludes that
the author's detention for a period of over four years was arbitrary within the meaning of
article 9, paragraph 1.” (para. 9.4)
C. v. Australia, Human Rights Committee Communication No 900/1999: Australia.

13/11/2002, CCPR/C/76/D/900/1999
‘C’, an Iranian asylum-seeker was detained after his arrival in Australia and subsequent
asylum claim, pending determination of his entitlement to asylum under Australian law. The
author claimed inter alia that his detention breached article 9(1) of the ICCPR.
“. . .[T]he Committee recalls its jurisprudence that, in order to avoid a characterization of

arbitrariness, detention should not continue beyond the period for which the State party can
provide appropriate justification23… In particular, the State party has not demonstrated that,
in the light of the author’s particular circumstances, there were not less invasive means of
achieving the same ends, that is to say, compliance with the State party’s immigration policies,
by, for example, the imposition of reporting obligations, sureties or other conditions which
would take account of the author’s deteriorating condition. In these circumstances, whatever
23
Lim v. Australia (1992) 176 CLR 1 (High Court of Australia).

23
the reasons for the original detention, continuance of immigration detention for over two
years without individual justification and without any chance of substantive judicial review
was, in the Committee’s view, arbitrary and constituted a violation of article 9, paragraph 1.”
(para. 8.2)

Article 9 No one shall be subjected to arbitrary arrest, detention or exile.
General Assembly Resolution 59/194 on Protection of migrants (A/59/503/Add.2) of 18

March 2005
Paragraph (12) Urges all States to adopt effective measures to put an end to the arbitrary
arrest and detention of migrants and to take action to prevent and punish any form of illegal
deprivation of liberty of migrants by individuals or groups;
United Nations Rules for the Protection of Juveniles Deprived of their Liberty, 1990
Rule 11 For the purposes of the Rules, the following definitions should apply:
(b) The deprivation of liberty means any form of detention or imprisonment or the placement
of a person in a public or private custodial setting, from which this person is not permitted to
leave at will, by order of any judicial, administrative or other public authority.
2.1.1.4 Other
Opinions adopted by the Working Group on Arbitrary Detention, Civil and Political
Rights, Including Questions of: Torture and Detention, E/CN.4/1999/63/Add.1, Opinion
No. 1/1998 (to the government of Cuba), 1999
Paragraph 3 The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued detention after
the sentence has been served or despite an applicable amnesty act) (Category I);
(ii) When the deprivation of liberty is the result of a judgment or sentence for the exercise of
the rights and freedoms proclaimed in articles 7, 13, 14, 18, 19, 20 and 21 of the Universal
Declaration of Human Rights (Category II);
(iii) When the complete or partial non-observance of international standards relating to the
right to a fair trial, as set forth in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
confer on the deprivation of liberty, of whatever kind, a[n] arbitrary character (Category III).
Working Group on Arbitrary Detention, Mandate24

Criteria adopted by the Working Group to determine whether a deprivation of liberty is
arbitrary
24
Availiable at http://www.unhchr.ch/html/menu2/7/b/arb_det/ardintro.htm#membership

24
The question of when a deprivation of freedom is or becomes arbitrary is not clearly answered
by the international instruments. The Universal Declaration of Human Rights merely provides
in article 9 that "No one shall be subjected to arbitrary arrest, detention or exile". Article 9 (1)
of the International Covenant on Civil and Political Rights is scarcely any clearer: "Everyone
has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law."
To enable it to carry out its tasks on the basis of precise standards, the Working Group has
adopted criteria for the consideration of cases submitted to it, drawing on the above-
mentioned provisions of the Universal Declaration and the Covenant as well as on the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
According to these criteria, detention is considered arbitrary if a case falls into one, or more,
of the following three categories:
1. Cases in which the deprivation of freedom is arbitrary as it manifestly cannot be linked to
any legal basis (such as continued detention beyond the execution of the sentence or despite
an amnesty act, etc.);
2. Cases of deprivation of freedom when the facts giving rise to the prosecution or conviction
concern the exercise of certain fundamental freedoms which are protected by the Universal
Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political
Rights (ICCPR) (for States Parties), and in particular:
* freedom of thought, conscience and religion (art. 18 of the UDHR and art. 18 of the ICCPR);
* freedom of opinion and expression (art. 19 of the UDHR and art. 19 of the ICCPR);
* the right of peaceful assembly and association (art. 20 of the UDHR and arts. 21 and 22 of
the ICCPR);
3. Cases in which non-observance of all or part of the international provisions relating to the
right to a fair trial is such that it confers on the deprivation of freedom, of whatever kind, an
arbitrary character.
In cases other than those falling within one or more of the three categories specified above,
the Working Group is not competent to declare whether a deprivation of freedom is arbitrary.
In too many cases the Group receives communications requesting it to declare a detention
"unfair", or to take a view on the value of evidence produced during a trial. These are areas
which fall outside the Group's remit. It is not for the Group to convert itself into a kind of
Supreme Court.
Working Group on Arbitrary Detention, Deliberation Number 5, E/CN.4/2000/4, Annex

II, 2000
In order to determine the arbitrary character of the custody, the Working Group considers
whether or not the alien is enabled to enjoy all or some of the following guarantees:
I. GUARANTEES CONCERNING PERSONS HELD IN CUSTODY

Principle 1: Any asylum-seeker or immigrant, when held for questioning at the border, or
inside national territory in the case of illegal entry, must be informed at least orally, and in a
language which he or she understands, of the nature of and grounds for the decision refusing

25
entry at the border, or permission for temporary residence in the territory, that is being
contemplated with respect to the person concerned.
Principle 2: Any asylum-seeker or immigrant must have the possibility, while in custody, of
communicating with the outside world, including by telephone, fax or electronic mail, and of
contacting a lawyer, a consular representative and relatives.
Principle 3: Any asylum-seeker or immigrant placed in custody must be brought promptly
before a judicial or other authority.
Principle 4: Any asylum-seeker or immigrant, when placed in custody, must enter his or her
signature in a register which is numbered and bound, or affords equivalent guarantees,
indicating the person’s identity, the grounds for the custody and the competent authority
which decided on the measure, as well as the time and date of admission into and release from
custody.
Principle 5: Any asylum-seeker or immigrant, upon admission to a centre for custody, must
be informed of the internal regulations and, where appropriate, of the applicable disciplinary
rules and any possibility of his or her being held incommunicado, as well as of the guarantees
accompanying such a measure.
II. GUARANTEES CONCERNING DETENTION

Principle 6: The decision must be taken by a duly empowered authority with a sufficient level
of responsibility and must be founded on criteria of legality established by the law.
Principle 7: A maximum period should be set by law and the custody may in no case be
unlimited or of excessive length.
Principle 8: Notification of the custodial measure must be given in writing, in a language
understood by the asylum-seeker or immigrant, stating the grounds for the measure; it shall
set out the conditions under which the asylum-seeker or immigrant must be able to apply for a
remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure
and, where appropriate, order the release of the person concerned.
Principle 9: Custody must be effected in a public establishment specifically intended for this
purpose; when, for practical reasons, this is not the case, the asylum-seeker or immigrant must
be placed in premises separate from those for persons imprisoned under criminal law.
Principle 10: The Office of the United Nations High Commissioner for Refugees
(UNHCR), the International Committee of the Red Cross (ICRC) and, where appropriate,
duly authorized non-governmental organizations must be allowed access to the places of
custody.

Paragraph 15 Deprivation of liberty of migrants must comply not only with national law, but
also with international legislation. It is a fundamental principle of international law that no
one should be subjected to arbitrary detention. International human rights norms, principles
and standards define the content of that principle. Such norms, principles and standards apply
to all individuals, including migrants and asylum seekers, and to both criminal and
administrative proceedings.

26
Paragraph 35 …Deprivation of liberty should never be indefinite. The Human Rights

Committee found that “detention should not continue beyond the period for which the State
can provide appropriate justification. For example, the fact of illegal entry may indicate a
need for investigation and there may be other factors particular to the individual, such as the
likelihood of absconding and lack of cooperation, which may justify detention for a period.
Without such factors detention may be considered arbitrary, even if entry was illegal”.25 The
Working Group on Arbitrary Detention further states that a maximum period should be set by
law and the custody may in no case be unlimited or of excessive length.
Recommendations
Paragraph 75 When [abolishing all forms of administrative detention] is not immediately
possible, Governments should take measures to ensure respect for the human rights of
migrants in the context of deprivation of liberty, including by:…
(g) Ensuring that the law sets a limit on detention pending deportation and that under no
circumstance is detention indefinite. The Special Rapporteur recommends that States shall
consider entering into bilateral and multilateral agreements to speed up documentation/
deportation procedures and thereby reduce the length of detention… Detention should end
when a deportation order cannot be executed for other reasons that are not the fault of the
migrant;
Final Report of David Weissbrodt, UN Special Rapporteur on the Rights of Non-

Citizens, E/CN.4/Sub.2/2003/23
Paragraph 27 All individuals, including non-citizens, must be protected from arbitrary
detention.26 States are obligated to respect the human rights of detainees, including legal
protections, whether or not they are in the territory of the State in question.27 So-called
“international zones” administered by States to detain non-citizens, and where such non-
citizens are denied legal or social assistance, are a legal fiction and a State cannot thereby
avoid its international human rights responsibilities by claiming that such areas have
extraterritorial status.28 States may arrest or detain non-citizens against whom action is being
taken with a view to deportation or extradition, regardless of whether such detention is
reasonably considered necessary, for example, to prevent those non-citizens from committing
offences or fleeing.29 States may not, however, consciously facilitate the detention of non-
citizens in a planned operation for the expulsion of non-citizens by encouraging them to
report to authorities on the basis of a pretext.30
25
CCPR/C/D/560/1993, op.cit., para. 9.4.
26
Conka v. Belgium, App. No. 00051564/99, Eur. Ct. H.R. (2002).
27
E/CN.4/Sub.2/2003/23/Add.2 (2003) para. 81.
28
22 E.H.R.R. 533 (1996) para. 43.
29
Conka v. Belgium, App. No. 00051564/99, Eur. Ct. H.R. (5 February 2002); Chahal v. United Kingdom, 1996-V
Reports of Judgments and Decisions 1862, § 112 (1996).
30
Conka v. Belgium, App. No. 00051564/99, Eur. Ct. H.R. (5 February 2002).

27

Article 6 …No one may be deprived of his freedom except for reasons and conditions
previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

Article 7(3) No one shall be subject to arbitrary arrest or imprisonment.
Article 14(1) Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest, search or detention without a legal warrant.
(2) No one shall be deprived of his liberty except on such grounds and in such circumstances
as are determined by law and in accordance with such procedure as is established thereby.

Article 5(1) Everyone has the right to liberty and security of person. No one shall be deprived
of his liberty save … in accordance with a procedure prescribed by law.

freedom was threatened in the sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the authorities and show
good cause for their illegal entry or presence.

Paragraph 1 … Freedom from arbitrary detention is a fundamental human right, and the use
of detention is in many instances, contrary to the norms and principles of international law…
31
See also e.g. Saadi v United Kingdom, European Court of Human Rights, Judgment of 11 July 2006, App. No.
1329/03; Amuur v. France, European Court of Human Rights, Judgment of 25 June 1996, Appl. No. 19776/92;
Guzzardi v. Italy, European Court of Human Rights, Judgment of 6 November 1980, (1981) 61 I.L.R. 227; also
(1981) E.H.R.R 333

28
Guideline 1 … UNHCR considers detention as: confinement within a narrowly bounded or

restricted location, including prisons, closed camps, detention facilities or airport transit zones,
where freedom of movement is substantially curtailed, and where the only opportunity to
leave this limited area is to leave the territory. There is a qualitative difference between
detention and other restrictions on freedom of movement. Persons who are subject to
limitations on domicile and residency are not generally considered to be in detention. When
considering whether an asylum-seeker is in detention, the cumulative impact of the
restrictions as well as the degree and intensity of each of them should also be assessed.
Guideline 3 Exceptional Grounds for Detention

Detention of asylum-seekers may exceptionally be resorted to … as long as this is clearly
prescribed by a national law which is in conformity with general norms and principles of
international human rights law. These are contained in the main human rights instruments.32
There should be a presumption against detention. Where there are monitoring mechanisms
which can be employed as viable alternatives to detention, (such as reporting obligations or
guarantor requirements [see Guideline 4]), these should be applied first unless there is
evidence to suggest that such an alternative will not be effective in the individual case.
Detention should therefore only take place after a full consideration of all possible
alternatives, or when monitoring mechanisms have been demonstrated not to have achieved
the lawful and legitimate purpose.
In assessing whether detention of asylum-seekers is necessary, account should be taken of
whether it is reasonable to do so and whether it is proportional to the objectives to be
achieved. If judged necessary it should only be imposed in a non-discriminatory manner for a
minimal period.33
The permissible exceptions to the general rule that detention should normally be avoided must
be prescribed by law. In conformity with ExCom Conclusion No. 44 (XXXVII) the detention
of asylum-seekers may only be resorted to, if necessary:
(i) to verify identity.

This relates to those cases where identity may be undetermined or in dispute.
(ii) to determine the elements on which the claim for refugee status or asylum is based.
This statement means that the asylum-seeker may be detained exclusively for the purposes of
a preliminary interview to identify the basis of the asylum claim.34 This would involve
obtaining essential facts from the asylum-seeker as to why asylum is being sought and would
not extend to a determination of the merits or otherwise of the claim. This exception to the
general principle cannot be used to justify detention for the entire status determination
procedure, or for an unlimited period of time.
32
Art. 9(1) ICCPR; Art. 37(b) UN Convention on the Rights of the Child; Art. 5(1) ECHR; Art. 7(2) American
Convention on Human Rights, 1969; Art. 5 African Charter on Human and Peoples’ Rights, 1981.
33
Art. 9(1), Art. 12 ICCPR; Art. 37(b) CRC; Art. 5(1)(f) ECHR; Art. 7(3) American Convention; Art. 6 African
Charter. EXCOM Conclusion No. 44 (XXXVII).
34
EXCOM Conclusion No. 44 (XXXVII).

29
(iii) in cases where asylum-seekers have destroyed their travel and /or identity documents or
have used fraudulent documents in order to mislead the authorities of the State, in which they
intend to claim asylum.
What must be established is the absence of good faith on the part of the applicant to comply
with the verification of identity process. As regards asylum-seekers using fraudulent
documents or traveling with no documents at all, detention is only permissible when there is
an intention to mislead, or a refusal to co-operate with the authorities. Asylum-seekers who
arrive without documentation because they are unable to obtain any in their country of origin
should not be detained solely for that reason.
(iv) to protect national security and public order.

This relates to cases where there is evidence to show that the asylum-seeker has criminal
antecedents and/or affiliations which are likely to pose a risk to public order or national
security should he/she be allowed entry.
Detention of asylum-seekers which is applied for purposes other than those listed above, for
example, as part of a policy to deter future asylum-seekers, or to dissuade those who have
commenced their claims from pursuing them, is contrary to the norms of refugee law. It
should not be used as a punitive or disciplinary measure for illegal entry or presence in the
country. Detention should also be avoided for failure to comply with the administrative
requirements or other institutional restrictions related residency at reception centers, or
refugee camps. Escape from detention should not lead to the automatic discontinuation of the
asylum procedure, or to return to the country of origin, having regard to the principle of non-
refoulement.35
UNHCR ExCom Conclusion No. 44 (XXXVII) - 1986) – Detention of Refugees and

Asylum-seekers
Paragraph (i) Expressed the opinion that in view of the hardship which it involves,
detention should normally be avoided. If necessary, detention may be resorted to only on
grounds prescribed by law to verify identity; to determine the elements on which the claim to
refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have
destroyed their travel and/or identity documents or have used fraudulent documents in order
to mislead the authorities of the State in which they intend to claim asylum; or to protect
national security or public order;
UNHCR ExCom Conclusion No. 50 (XXXIX) – 1988, General Conclusion on

International Protection
Paragraph (i) The Executive Committee [c]alled upon states, the High Commissioner and
other concerned parties to take all necessary measures to ensure that refugees are protected
from arbitrary detention and violence;
UNHCR ExCom Conclusion No. 85 (XLIX) – 1998
35
Sub Committee of the Whole of International Protection Note EC/SCP/44, para. 51(c).

30
(cc) Recalls Article 31 of the 1951 Convention relating to the Status of Refugees and
reaffirms Conclusion No. 44.(XXXVII) on the detention of refugees and asylum-seekers; (dd)
Deplores that many countries continue routinely to detain asylum-seekers (including minors)
on an arbitrary basis, for unduly prolonged periods, and without giving them adequate access
to UNHCR and to fair procedures for timely review of their detention
status; notes that such detention practices are inconsistent with established human rights
standards and urges States to explore more actively all feasible alternatives to detention.

31
2.2 Exceptional grounds for detention
2.2.1.1 Treaties

Article 9(1) …No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.…
Article 12(1) Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence. (3) The above-
mentioned rights shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (ordre public), public health or
morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.
Article 16(4) Migrant workers and members of their families shall not be...deprived of their
liberty except on such grounds and in accordance with such procedures as are established by
law.
General Comment No. 8 (1982) of the Human Rights Committee, Humane treatment of
persons deprived of their liberty (Article 9 of the ICCPR)
Paragraph 4 Also if so-called preventive detention is used, for reasons of public security, it
must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based
on grounds and procedures established by law (para. 1), information of the reasons must be
given (para. 2) and court control of the detention must be available (para. 4) as well as
compensation in the case of a breach (para. 5). And if, in addition, criminal charges are
brought in such cases, the full protection of article 9 (2) and (3), as well as article 14, must
also be granted.

30/04/97. CCPR/C/59/D/560/1993
The author, a Cambodian asylum-seeker, arrived in Australia and shortly thereafter applied
for refugee status. His asylum application was refused and later ‘A’ appealed this decision
and was detained for over four years whilst his refugee status was being determined. The
author argued inter alia that he had been detained arbitrarily within the meaning of article
9(1).

32
“In any event, detention should not continue beyond the period for which the state can
provide appropriate justification. For example the fact of illegal entry may indicate a need for
investigation and there may be other factors particular to the individual, such as the likelihood
of absconding and lack of cooperation, which may justify detention for a period. Without such
factors detention may be considered arbitrary, even if entry was illegal.” (para. 9.4)
2.2.1.3 General Assembly Resolutions
Imprisonment, 1988
Principle 4 Any form of detention or imprisonment and all measures affecting the human
rights of a person under any form of detention or imprisonment shall be ordered by… a
judicial or other authority.
2.2.1.4 Other

Recommendations
Paragraph 75 (c) Ensuring that procedural safeguards and guarantees established by
international human rights law and national law in case of criminal proceedings are applied to
any form of detention. In particular, deprivation of liberty should be allowed only on the basis
of criteria established by law. A decision to detain should only be taken under clear legal
authority, and all migrants deprived of their liberty, whether under administrative proceedings
or in cases of preventive detention for reasons of public security, should be entitled to bring
proceedings before a court, so that the court can decide on the lawfulness of the detention.
Migrants in detention shall be assisted, free of charge, by legal counsel and by an interpreter
during administrative proceedings;

Article 6 …No one may be deprived of his freedom except for reasons and conditions
previously laid down by law…

Article 7(2) No one shall be deprived of his physical liberty except for the reasons and under
the conditions established beforehand by the constitution of the State Party concerned or by a
law established pursuant thereto.

33

Article XXV No person may be deprived of his liberty except in the cases and according to
the procedures established by pre-existing law.
Article 14(2) No one shall be deprived of his liberty except on such grounds and in such
circumstances as are determined by law and in accordance with such procedure as is
established thereby.

Article 5(1) No one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a
court or in order to secure the fulfillment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before
the competent legal authority on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent his committing an offence or fleeing
after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his
lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases,
of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into
the country or of a person against whom action is being taken with a view to deportation or
extradition.

36
See also e.g. Chahal v. United Kingdom, European Court of Human Rights Judgment of 15 November 1996,
Appl. No. 22414/93 where the Court recalled that ‘any deprivation of liberty under Article 5 paragraph 1(f) will be
justified only as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due
diligence, the detention will cease to be permissible under Article 5 paragraph 1(f).’ (para. 113); Conka v. Belgium,
European Court of Human Rights, judgment of 5 February 2002, Appl. No. 51564/99 where the Court reiterates
that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow
interpretation of those exceptions is consistent with the aim of that provision. (para. 42); K.-F. v. Germany, ECHR
judgment of 27 November 1997, (para 70). Also see Kenmache v. France (No. 3), (45/1993/440/519), 24
November 1994 where the European Court stated that the phrase "in accordance with a procedure prescribed by
law" in Article 5(1) of the European Convention refers to domestic law, but that the domestic law itself "must be in
conformity with the principles expressed or implied in the [European] Convention".

34
Art 31(2) The Contracting State shall not apply to the movements of such refugees [that is,
those referred to in article 31(1), including asylum-seekers] restrictions other than those
which are necessary and such restrictions shall only be applied until their status in the country
is regularized or they obtain admission into another country.
UNHCR ExCom Conclusion No. 44 (XXXVII) – 1986, Detention of Refugees and

Asylum Seekers
No. 44 (XXXVII) – 1986 – Detention of Refugees and Asylum-Seekers.
Paragraph (b) …If necessary, detention may be resorted to only on grounds prescribed by
law to verify identity; to determine the elements on which the claim to refugee status or
asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their
travel and/or identity documents or have used fraudulent documents in order to mislead the
authorities of the State in which they intend to claim asylum; or to protect national security or
public order;
UNHCR ExCom Conclusion No. 7 (XXVIII) – 1977, Expulsion

Paragraph (e) [The Executive Committee] [r]ecommended that an expulsion order should
only be combined with custody or detention if absolutely necessary for reasons of national
security or public order and that such custody or detention should not be unduly prolonged.

Guideline 3 Exceptional Grounds for Detention
Detention of asylum-seekers may exceptionally be resorted to … as long as this is clearly
prescribed by a national law which is in conformity with general norms and principles of
international human rights law. These are contained in the main human rights instruments.37
There should be a presumption against detention. Where there are monitoring mechanisms
which can be employed as viable alternatives to detention, (such as reporting obligations or
guarantor requirements [see Guideline 4]), these should be applied first unless there is
evidence to suggest that such an alternative will not be effective in the individual case.
Detention should therefore only take place after a full consideration of all possible
alternatives, or when monitoring mechanisms have been demonstrated not to have achieved
the lawful and legitimate purpose.
In assessing whether detention of asylum-seekers is necessary, account should be taken of
whether it is reasonable to do so and whether it is proportional to the objectives to be
achieved. If judged necessary it should only be imposed in a non-discriminatory manner for a
minimal period.38
37
Art. 9(1) ICCPR; Art. 37(b) UN Convention on the Rights of the Child; Art. 5(1) ECHR; Art. 7(2) American
Convention on Human Rights, 1969; Art. 5 African Charter on Human and Peoples’ Rights, 1981.
38
Art. 9(1), Art. 12 ICCPR; Art. 37(b) CRC; Art. 5(1)(f) ECHR; Art. 7(3) American Convention; Art. 6 African
Charter. EXCOM Conclusion No. 44 (XXXVII).

35
The permissible exceptions to the general rule that detention should normally be avoided must
be prescribed by law. In conformity with ExCom Conclusion No. 44 (XXXVII) the detention
of asylum-seekers may only be resorted to, if necessary:
(i) to verify identity.
This relates to those cases where identity may be undetermined or in dispute.
(ii) to determine the elements on which the claim for refugee status or asylum is based.
This statement means that the asylum-seeker may be detained exclusively for the purposes of
a preliminary interview to identify the basis of the asylum claim.39 This would involve
obtaining essential facts from the asylum-seeker as to why asylum is being sought and would
not extend to a determination of the merits or otherwise of the claim. This exception to the
general principle cannot be used to justify detention for the entire status determination
procedure, or for an unlimited period of time.
(iii) in cases where asylum-seekers have destroyed their travel and /or identity documents or
have used fraudulent documents in order to mislead the authorities of the State, in which they
intend to claim asylum.
What must be established is the absence of good faith on the part of the applicant to comply
with the verification of identity process. As regards asylum-seekers using fraudulent
documents or traveling with no documents at all, detention is only permissible when there is
an intention to mislead, or a refusal to co-operate with the authorities. Asylum-seekers who
arrive without documentation because they are unable to obtain any in their country of origin
should not be detained solely for that reason.
(iv) to protect national security and public order.
This relates to cases where there is evidence to show that the asylum-seeker has criminal
antecedents and/or affiliations which are likely to pose a risk to public order or national
security should he/she be allowed entry.
Detention of asylum-seekers which is applied for purposes other than those listed above, for
example, as part of a policy to deter future asylum-seekers, or to dissuade those who have
commenced their claims from pursuing them, is contrary to the norms of refugee law. It
should not be used as a punitive or disciplinary measure for illegal entry or presence in the
country. Detention should also be avoided for failure to comply with the administrative
requirements or other institutional restrictions related residency at reception centers, or
refugee camps. Escape from detention should not lead to the automatic discontinuation of the
asylum procedure, or to return to the country of origin, having regard to the principle of non-
refoulement.40
39
EXCOM Conclusion No. 44 (XXXVII).
40
Sub Committee of the Whole of International Protection Note EC/SCP/44, para. 51(c).

36
2.3 Right to be informed of the reasons for detention
2.3.1.1 Treaties

Article 9(2) Anyone who is arrested shall be informed, at the time of arrest, of the reasons for
his arrest and shall be promptly informed of any charges against him.
Article 16(5) Migrant workers and members of their families who are arrested shall be
informed at the time of arrest as far as possible in a language they understand of the reasons
for their arrest and they shall be promptly informed in a language they understand of any
charges against them.
Imprisonment, 1988
Principle 11(2) A detained person and his counsel, if any, shall receive prompt and full
communication of any order of detention, together with the reasons therefore.
Principle 13 Any person shall, at the moment of arrest and at the commencement of detention
or imprisonment, or promptly thereafter, be provided by the authority responsible for his
arrest, detention or imprisonment, respectively with information on and an explanation of his
rights and how to avail himself of such rights.
Principle 14 …A person who does not adequately understand or speak the language used by
the authorities responsible for his arrest, detention or imprisonment is entitled to receive
promptly in a language which he understands the information [relating to any charges against
him].
2.3.1.3 Other

Recommendations
Paragraph 75 (d) [Governments should take measures to ensure] that migrants deprived of
their liberty are informed in a language they understand, if possible in writing, of the reasons
for the deprivation of liberty…

37
Working Group on Arbitrary Detention, Deliberation Number 5, E/CN.4/2000/4, Annex

II, 2000
Principle 8 Notification of the custodial measure must be given in writing, in a language
understood by the asylum-seeker or immigrant, stating the grounds for the measure…

Article 7(4) Anyone who is detained shall be informed of the reasons for his detention and
shall be promptly notified of the charge or charges against him.
Arab Charter on Human Rights (revised), adopted by the League of Arab States,
(2004)
Article 14 (3)_Anyone who is arrested shall be informed, at the time of arrest, in a language
that he understands, of the reasons for his arrest and shall be promptly informed of any
charges against him. He shall be entitled to contact his family members.

Article 5(2) Everyone who is arrested shall be informed promptly, in a language which he
understands, of the reasons for his arrest and of any charge against him.

Guideline 5(i) [If detained, asylum-seekers should be entitled] to receive prompt and full
communication of any order of detention, together with the reasons for the order, and their
rights in connection with the order, in a language and in terms which they understand;

38
2.4 Right to challenge the lawfulness of detention

before a judicial body
2.4.1.1 Treaties

Article 2(3) Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 9(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings before a court, in order that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful.
Members of their Families, 1990
Article 16(8) Migrant workers and members of their families who are deprived of their liberty
by arrest or detention shall be entitled to take proceedings before a court, in order that that
court may decide without delay on the lawfulness of their detention and order their release if
the detention is not lawful. When they attend such proceedings, they shall have the assistance,
if necessary without cost to them, of an interpreter, if they cannot understand or speak the
language used.
General Comment No. 8 (1982) of the Human Rights Committee, Right to Liberty and
Security of persons (Article 9 of the ICCPR)
Paragraph 1 Article 9 which deals with the right to liberty and security of persons has often
been somewhat narrowly understood in reports by States parties, and they have therefore
given incomplete information. The Committee points out that paragraph 1 is applicable to all
deprivations of liberty, whether in criminal cases or in other cases such as, for example,
mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. It is
true that some of the provisions of article 9 (part of paragraph 2 and the whole of paragraph 3)

39
are only applicable to persons against whom criminal charges are brought. But the rest, and in
particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court
of the legality of the detention, applies to all persons deprived of their liberty by arrest or
detention.
Furthermore, States parties have in accordance with article 2 (3) also to ensure that an
effective remedy is provided in other cases in which an individual claims to be deprived of his
liberty in violation of the Covenant.

13/11/2002. CCPR/C/76/D/900/1999,
‘C’, an Iranian asylum-seeker was detained after his arrival in Australia and subsequent
asylum claim, pending determination of his entitlement to asylum under Australian law. The
author claimed inter alia that his detention breached article 9(1) of the ICCPR.
Addressing the arbitrariness of the detention, the Human Rights Committee found inter alia
that Australia had “not demonstrated that, in the light of the author’s particular circumstances,
there were not less invasive means of achieving the same ends. . .” and that in order to
establish that detention is necessary and reasonable in all the circumstances, consideration of
this must be undertaken. The Committee concluded with regards to the case that “[i]n
accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an
obligation to provide the authors with an effective remedy.” (para 10)

30/04/97. CCPR/C/59/D/560/1993
‘A’, a Cambodian asylum-seeker, arrived in Australia and shortly thereafter applied for
refugee status. His asylum application was refused and later ‘A’ appealed this decision and
was detained for over four years whilst his refugee status was being determined. The author
argued inter alia that he had been detained arbitrarily within the meaning of article 9(1).
The Committee stated that “…every decision to keep a person in detention should be open to
review periodically so that the grounds justifying it can be assessed.” (para 9.4) “In the
Committee’s opinion, court review of the lawfulness of detention under article 9, paragraph 4,
which must include the possibility of ordering of release, is not limited to mere compliance of
the detention with domestic law. While domestic legal systems may institute differing
methods for ensuring court review of administrative detention, what is decisive for the
purposes of article 9, paragraph 4, requires that the court be empowered to order release, if the
detention is incompatible with the requirements in article 9, paragraph 1, or in other
provisions of the Covenant [ICCPR]… The Committee concluded that the author’s right to
have his detention reviewed by a court, was violated.” (para 9.5)
Torres v. Finland, Human Rights Committee Communication No 291/1988: Finland.

05/04/90. CCPR/C/38/D/291/1988

40
Torres, a Spanish citizen asylum-seeker, was detained in Finland whilst his asylum claim was
assessed and rejected and pending the execution of an extradition order to Spain. The author
made a complaint inter alia under Article 9(4) regarding the fact he was not provided an
opportunity to have recourse to a judicial body, and that the judicial proceedings were
unreasonably prolonged.
In its decision the Human Rights Committee found that “article 9, paragraph 4. . . envisages
that the legality of detention will be determined by a court so as to ensure a higher degree of
objectivity and independence in such control. The Committee further notes that while the
author was detained under orders of the police, he could not have the lawfulness of his
detention reviewed by a court. Review before a court of law was possible only when, after
seven days, the detention was confirmed by order of the Minister. As no challenge could have
been made until the second week of detention, the author's detention . . . violated the
requirement of article 9, paragraph 4; of the Covenant that a detained person be able "to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful" (emphasis
added).”
UN Body of Principles for the Protection of All Persons under any form of Detention or
Imprisonment, 1988
Principle 4 Any form of detention or imprisonment and all measures affecting the human
rights of a person under any form of detention or imprisonment shall be... subject to the
effective control of, a judicial or other authority.
Principle 9 The authorities which arrest a person, keep him under detention or investigate the
case shall exercise only the powers granted to them under the law and the exercise of these
powers shall be subject to recourse to a judicial or other authority.
Principle 11(1) A person shall not be kept in detention without being given an effective
opportunity to be heard promptly by a judicial or other authority…
Principle 11 (3) A judicial or other authority shall be empowered to review as appropriate the
continuance of detention.
Principle 32(1) A detained person or his counsel shall be entitled at any time to take
proceedings according to domestic law before a judicial or other authority to challenge the
lawfulness of his detention in order to obtain his release without delay, if it is unlawful.
(2) The proceedings referred to in paragraph 1 of the present principle shall be simple and
expeditious and at no cost for detained persons without adequate means. The detaining

41
authority shall produce without unreasonable delay the detained person before the reviewing
authority.
2.4.1.4 Others
Conclusions and Recommendations of the Working Group on Arbitrary Detention,

E/CN.4/2004/3, 2004
Paragraph 85 The Working Group considers that the right to challenge the legality of
detention or to petition for a writ of habeas corpus or remedy of amparo is a personal right,
which must in all circumstances be guaranteed by the jurisdiction of the ordinary courts.
Paragraph 86 The Working Group considers that, even where illegal immigrants and asylum-
seekers are concerned, any decision to place them in detention must be reviewed by a court or
a competent, independent and impartial body in order to ensure that it is necessary and in
conformity with the norms of international law and that, where people have been detained,
expelled or returned without being provided with legal guarantees, their continued detention
and subsequent expulsion are to be considered as arbitrary.
Report of the Working Group on Arbitrary Detention; Deliberation No. 5 (Situation

regarding immigrants and asylum-seekers), Annex II, E/CN.4/2000/4
Principle 8 Notification of the custodial measure must be given in writing, in a language
understood by the asylum-seeker or immigrant, stating the grounds for the measure; it shall
set out the conditions under which the asylum-seeker or immigrant must be able to apply for a
remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure
and, where appropriate, order the release of the person concerned.
Report of Working Group on Arbitrary Detention, E/CN.4/2004/3/Add.3, 2004

Recommendations
Paragraph 75 An effective judicial remedy should be provided for administrative orders for
the detention of foreigners with a view to their expulsion from the country. Any person
detained for reasons related to immigration should have an opportunity to request a court to
rule on the legality of his or her detention before the expulsion order is enforced…
Report of the Working Group on Arbitrary Detention, E/CN.4/1996/40

Recommendations
Paragraph 124(4) The Working Group suggests that the Commission should ask States to
incorporate the remedy of habeas corpus in their legislation, as an individual right, which has
been shown capable of ending arbitrary detention, or at least preventing its harmful
consequences.
Commission on Human Rights Resolution: 2004/39, ‘Arbitrary detention’, 2004

Paragraph 3(c) [The Commission on Human Rights encourages the Governments concerned]
[t]o respect and promote the right of anyone who is deprived of his/her liberty by arrest or

42
detention to be entitled to bring proceedings before a court, in order that the court may decide
without delay on the lawfulness of his/her detention and order his/her release if the detention
is not lawful, in accordance with their international obligations;
Commission on Human Rights, Report of the Special Rapporteur on Torture,

E/CN.4/2003/68
Paragraph 26 (i) Provisions should give all detained persons the ability to challenge the
lawfulness of the detention e.g. through habeas corpus or amparo. Such procedures should
function expeditiously;

Recommendations
migrants in the context of deprivation of liberty, including by:...
Paragraph 75 (c) …A decision to detain should only be taken under clear legal authority, and
all migrants deprived of their liberty, whether under administrative proceedings or in cases of
preventive detention for reasons of public security, should be entitled to bring proceedings
before a court, so that the court can decide on the lawfulness of the detention…
(g) Ensuring that the law sets a limit on detention pending deportation and that
under no circumstance is detention indefinite.…[t]he decision to detain should be
automatically reviewed periodically on the basis of clear legislative criteria.
(h) Avoiding the use of detention facilities and of legal mechanisms and methods of
interception and/or deportation that curtail judicial control of the lawfulness of the detention
and other rights, such as the right to seek asylum;

Article 7(1) Every individual shall have the right to have his cause heard. This comprises: (a)
the right to an appeal to competent national organs against acts of violating his fundamental
rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

Article 2(1) Everyone has the right to simple and prompt recourse, or any other effective
recourse, to a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state concerned or by this
41
See also e.g. Rencontre Africaine pour la defense de droits de l'homme v. Zambia, (71/92), 10th Annual Report
of the African Commission, 1996 -1997, ACHPR/RPT/10th where the African Commission decided that denying
detainees considered irregular aliens the opportunity to appeal to national courts violated Article 7(1)(a) of the
African Charter as it deprived them of the right to have their case heard.

43
Convention, even though such violation may have been committed by persons acting in the
course of their official duties.
(2) The States Parties undertake: (a) to ensure that any person claiming such remedy shall
have his rights determined by the competent authority provided for by the legal system of the
state; (b) to develop the possibilities of judicial remedy; and (c) to ensure that the competent
authorities shall enforce such remedies when granted.
Article 7(5) Any person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial within a reasonable
time or to be released without prejudice to the continuation of the proceedings. His release
may be subject to guarantees to assure his appearance for trial.
(6) Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in
order that the court may decide without delay on the lawfulness of his arrest or detention and
order his release if the arrest or detention is unlawful. In States Parties whose laws provide
that anyone who believes himself to be threatened with deprivation of his liberty is entitled to
recourse to a competent court in order that it may decide on the lawfulness of such threat, this
remedy may not be restricted or abolished. The interested party or another person in his behalf
is entitled to seek these remedies.

Article XXV No person may be deprived of his liberty except in the cases and according to
the procedures established by pre-existing law… Every individual who has been deprived of
his liberty has the right to have the legality of his detention ascertained without delay by a
court, and the right to be tried without undue delay or, otherwise, to be released.
Arab Charter on Human Rights (revised), adopted by the League of Arab States, (2004)
Article 14 (5) Anyone arrested or detained on a criminal charge shall be brought promptly
before a judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. His release may be subject to
guarantees to appear for trial. Pre-trial detention shall in no case be the general rule.
(6)Anyone who is deprived of his liberty by arrest or detention shall be entitled to petition a
competent court in order that it may decide without delay on the lawfulness of his arrest or
detention and order his release if the arrest or detention is unlawful.

Article 5(3) Everyone arrested or detained in accordance with the provisions of paragraph 1.c
of this article shall be brought promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.
42
See also e.g. Chahal v. United Kingdom, European Court of Human Rights, Judgment of 15 November 1996,
Appl. No. 22414/93; Dougaz v. Greece, European Court of Human Rights, Judgment of 6 March 2001, Appl. No.
40907/98,

44
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.
Article 13 Everyone whose rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority notwithstanding that the violation
has been committed by persons acting in an official capacity.

Guideline 5 If detained, asylum-seekers should be entitled to the following minimum
procedural guarantees … (iii) to have the decision subjected to an automatic review before a
judicial or administrative body independent of the detaining authorities. This should be
followed by regular periodic reviews of the necessity for the continuation of detention, which
the asylum-seeker or his representative would have the right to attend;

Asylum Seekers
Paragraph (e) [The Executive Committee] [r]ecommended that detention measures taken in
respect of refugees and asylum-seekers should be subject to judicial or administrative review;

45
2.5 Access to counsel and right to legal assistance

and interpretation
2.5.1.1 Treaties
International Convention on the Protection of Human Rights’ of All Migrant Workers

and Members of their Families, 1990
Article 16(7))When a migrant worker or a member of his or her family is arrested or
committed to prison or custody pending trial or is detained in any other manner: . . .
(c) The person concerned shall be informed without delay of this right and of rights deriving
from relevant treaties, if any, applicable between the States concerned, to correspond and to
meet with representatives of the said authorities and to make arrangements with them for his
or her legal representation.
Article 18(3)(d) [Migrant workers and members of their families shall have the right] [t]o be
tried in their presence and to defend themselves in person or through legal assistance of their
own choosing; to be informed, if they do not have legal assistance, of this right; and to have
legal assistance assigned to them, in any case where the interests of justice so require and
without payment by them in any such case if they do not have sufficient means to pay;
General Comment No. 20 (1992) of the Human Rights Committee, replaces general
comment 7 concerning prohibition of torture and cruel treatment or punishment,
(Article 7 of the ICCPR)
Paragraph 11 …The protection of the detainee also requires that prompt and regular access
be given to…lawyers…
Concluding Observations of the Human Rights Committee: United Kingdom of Great

Britain and Northern Ireland. 06/12/2001.CCPR/CO/73/UK
Paragraph 16 The Committee is concerned that … the practice of dispersing asylum-seekers
may have adverse effects on their ability to obtain legal advice and upon the quality of that
advice…
Imprisonment, 1988.

46
Principle 11(1) …A detained person shall have the right to defend himself or to be assisted by
counsel as prescribed by law.
Principle 14 A person who does not adequately understand or speak the language used by the
authorities responsible for his arrest, detention or imprisonment is entitled to … have the
assistance, free of charge, if necessary, of an interpreter in connection with legal proceedings
subsequent to his arrest.
Principle 17(1) A detained person shall be entitled to have the assistance of a legal counsel.
He shall be informed of his right by the competent authority promptly after arrest and shall be
provided with reasonable facilities for exercising it.
(2) If a detained person does not have a legal counsel of his own choice, he shall be entitled to
have a legal counsel assigned to him by a judicial or other authority in all cases where the
interests of justice so require and without payment by him if he does not have sufficient
means to pay.
Principle 18(1) A detained or imprisoned person shall be entitled to communicate and consult
with his legal counsel.
(2) A detained or imprisoned person shall be allowed adequate time and facilities for
consultation with his legal counsel.
(3) The right of a detained or imprisoned person to be visited by and to consult and
communicate, without delay or censorship and in full confidentiality, with his legal counsel
may not be suspended or restricted save in exceptional circumstances, to be specified by law
or lawful regulations, when it is considered indispensable by a judicial or other authority in
order to maintain security and good order.
(4) Interviews between a detained or imprisoned person and his legal counsel may be within
sight, but not within the hearing, of a law enforcement official.
(5) Communications between a detained or imprisoned person and his legal counsel
mentioned in the present principle shall be inadmissible as evidence against the detained or
imprisoned person unless they are connected with a continuing or contemplated crime.
2.5.1.4 Economic and Social Council Resolutions
UN Standard Minimum Rules for the Treatment of Prisoners, 197743

Rule 93 For the purposes of his defence, an untried prisoner shall be allowed to apply for free
legal aid where such aid is available, and to receive visits from his legal adviser with a view
to his defence and to prepare and hand to him confidential instructions. For these purposes, he
shall if he so desires be supplied with writing material. Interviews between the prisoner and
his legal adviser may be within sight but not within the hearing of a police or institution
official.
43
Please note that while these standards are relevant to prisoners, not migrants, refugees or asylum-seekers they
are included to highlight the basic minimum standard relevant to prisoners that migration-related detention must
not fall below.

47
2.5.1.5 Other
Basic Principles on the Role of Lawyers, 1990

Principle 5 Governments shall ensure that all persons are immediately informed by the
competent authority of their right to be assisted by a lawyer of their own choice upon arrest or
detention or when charged with a criminal offence.
Report of the Working Group on Arbitrary Detention, E/CN.4/1998/44

Paragraph 33 With reference to [asylum seekers whose detention is considered necessary by
the authorities] the following issues require to be addressed: …
(e) Access to legal counseling and representation… is of exceptional importance. Aliens
seeking immigration or asylum are ill equipped to pursue effectively their legal rights or
remedies that they might have under the applicable legislation. They would invariably suffer
from material constraints or constraints of language disabling them from representing their
cause effectively. Many might not be informed of the legal remedies available.
Report of Working Group on Arbitrary Detention (Visit to Argentina),

E/CN.4/2004/3/Add.3, 2004.
Recommendations
Paragraph 70 The right of detainees to communicate freely with their defense lawyer should
be guaranteed. The shortage of telephones in detention centers, the lack of telephone cards or
money to buy them and detainees’ financial problems should not prevent them from
communicating freely and easily with their lawyer. Access to a free or court-appointed
defense lawyer or to one provided free of charge by a bar association or law faculty should be
facilitated. Ownership of a property should not be an obstacle to the use of these services.

Recommendations
migrants in the context of deprivation of liberty, including by:
(c) [Ensuring that]…Migrants in detention shall be assisted, free of charge, by legal counsel
and by an interpreter during administrative proceedings;
(d) Ensuring that migrants deprived of their liberty are informed in a language they
understand, if possible in writing, of the reasons for the deprivation of liberty, of the available
appeal mechanisms and of the regulations of the facility. Detained migrants shall also be
accurately informed of the status of their case and of their right to contact a consular or
embassy representative and members of their families. A briefing on the facility and
information on the immigration law should also be provided. Migrants and their lawyers
should have full and complete access to the migrants’ files;

48
(e) Facilitating migrants’ exercise of their rights, including by providing them with lists of
lawyers offering pro bono services, telephone numbers of all consulates and organizations
providing assistance to detainees and by creating mechanisms, such as toll-free numbers, to
inform them of the status of their case. Efforts should be made to conclude agreements with
NGOs, universities, volunteers, national human rights institution and humanitarian and other
organizations to provide basic services, such as translation and legal assistance, when they
cannot otherwise be guaranteed;
Report of Special Rapporteur on Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment, Theo van Boven, E/CN.4/2003/68, 2003
Paragraph 26(g) …Legal provisions should ensure that detainees are given access to legal
counsel within 24 hours of detention. In accordance with the Basic Principles on the Role of
Lawyers, all persons arrested or detained should be informed of their right to be assisted by a
lawyer of their choice or a State-appointed lawyer able to provide effective legal assistance…
In exceptional circumstances, under which it is contended that prompt contact with a
detainee’s lawyer might raise genuine security concerns and where restriction of such contact
is judicially approved, it should at least be possible to allow a meeting with an independent
lawyer, such as one recommended by a bar association.
Commission on Human Rights, Resolution 1994/37, 1994

That the right to have access to a lawyer is one of the basic rights of a person who is deprived
of his liberty and that restrictions on this rights should therefore be exceptional and always
subject to judicial control…Legal provisions should ensure that detainees are given access to
legal counsel within 24 hours of detention.

Article 7(1)(c) [Every individual shall have] the right to defense, including the right to be
defended by counsel of his choice.

procedural guarantees:...
(ii) to be informed of the right to legal counsel. Where possible, they should receive free legal
assistance;

49
2.6 Right to compensation
2.6.1.1 Treaties

Article 2(3) Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
Article 9(5) Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.
Article 16(9) Migrant workers and members of their families who have been victims of
unlawful arrest or detention shall have an enforceable right to compensation.
General Comment No 3 (1981) of the Human Rights Committee on Implementation at

the national level (Article 2 of the ICCPR)
The Committee considers it necessary to draw the attention of States parties to the fact that
the obligation under the Covenant is not confined to the respect of human rights, but that
States parties have also undertaken to ensure the enjoyment of these rights to all individuals
under their jurisdiction. This aspect calls for specific activities by the States parties to enable
individuals to enjoy their rights. This is obvious in a number of articles (e.g. art. 3 which is
dealt with in General Comment 4 below), but in principle this undertaking relates to all rights
set forth in the Covenant.

13/11/2002. CCPR/C/76/D/900/1999
44
Note the French and Spanish texts of the ICCPR use the broader term reparation; the term compensation used in
the English text is an element of reparation.

50
‘C’, an Iranian asylum-seeker, was detained after his arrival in Australia and subsequent
asylum claim pending determination of his entitlement to asylum under Australian law. In
relation to the author’s complaints, the Committee concluded that “[a]s to the violations of
articles 7 and 9 [of the ICCPR] suffered by the author during the first period of detention, the
State party should pay the author appropriate compensation.” (para. 10)

30/04/97. CCPR/C/59/D/560/1993
“A”, a Cambodian asylum-seeker, arrived in Australia and shortly thereafter applied for
was detained for over four years whilst his refugee status was being determined. In relation to
the author’s complaint the Committee concluded that “[u]nder article 2, paragraph 3, of the
Covenant, the author is entitled to an effective remedy. In the Committee’s opinion, this
should include adequate compensation for the length of the detention to which A was
subjected.” (para. 11)

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the constitution or by law.
Imprisonment, 1988
Principle 35(1) Damage incurred because of acts or omissions by a public official contrary to
the rights contained in these principles shall be compensated according to the applicable rules
or liability provided by domestic law.
(2) Information required to be recorded under these principles shall be available in accordance
with procedures provided by domestic law for use in claiming compensation under the present
principle.
Article 14 (7) Anyone who has been the victim of arbitrary or unlawful arrest or detention
shall be entitled to compensation.

Article 63(1) If the Court finds that there has been a violation of a right or freedom protected
by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his

51
right or freedom that was violated. It shall also rule, if appropriate, that the consequences of
the measure or situation that constituted the breach of such right or freedom be remedied and
that fair compensation be paid to the injured party.
(2) In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage
to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it
has under consideration. With respect to a case not yet submitted to the Court, it may act at
the request of the Commission.

Article 5(5) Everyone who has been the victim of arrest or detention in contravention of the
provisions of this article shall have an enforceable right to compensation.

52
3. Human Rights Standards – Conditions of

detention
3.1 Protection against torture, cruel, inhuman or

degrading treatment
3.1.1.1 Treaties

Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment…
Article 10(1) All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, 1984
Article 2 (1) Each State Party shall take effective legislative, administrative, judicial or other
measures to prevent acts of torture in any territory under its jurisdiction.
(2) No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a justification
of torture.
(3) An order from a superior officer or a public authority may not be invoked as a justification
of torture.
Article 11
Each State Party shall keep under systematic review interrogation rules, instructions, methods
and practices as well as arrangements for the custody and treatment of persons subjected to
any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a
view to preventing any cases of torture.
Article 16 (1) Each State Party shall undertake to prevent in any territory under its jurisdiction
other acts of cruel, inhuman or degrading treatment or punishment which do not amount to
torture as defined in article I, when such acts are committed by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official capacity.
In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the

53
substitution for references to torture of references to other forms of cruel, inhuman or

degrading treatment or punishment.
comment 7 concerning prohibition of torture and cruel treatment or punishment
Paragraph 2 The aim of the provisions of article 7 of the International Covenant on Civil and
Political Rights is to protect both the dignity and the physical and mental integrity of the
individual. It is the duty of the State party to afford everyone protection through legislative
and other measures as may be necessary against the acts prohibited by article 7, whether
inflicted by people acting in their official capacity, outside their official capacity or in a
private capacity. The prohibition in article 7 is complemented by the positive requirements of
article 10, paragraph 1, of the Covenant, which stipulates that "All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent dignity of the human
person".
Paragraph 3 The text of article 7 allows of no limitation. The Committee also reaffirms that,
even in situations of public emergency such as those referred to in article 4 of the Covenant,
no derogation from the provision of article 7 is allowed and its provisions must remain in
force. The Committee likewise observes that no justification or extenuating circumstances
may be invoked to excuse a violation of article 7 for any reasons, including those based on an
order from a superior officer or public authority.
Paragraph 6 The Committee notes that prolonged solitary confinement of the detained or
imprisoned person may amount to acts prohibited by article 7. . .
Paragraph 7 Article 7 expressly prohibits medical or scientific experimentation without the

free consent of the person concerned. The Committee notes that the reports of States parties
generally contain little information on this point. More attention should be given to the need
and means to ensure observance of this provision. The Committee also observes that special
protection in regard to such experiments is necessary in the case of persons not capable of
giving valid consent, and in particular those under any form of detention or imprisonment.
Such persons should not be subjected to any medical or scientific experimentation that may be
detrimental to their health.

Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.

54
Imprisonment, 1988
Principle 6 No person under any form of detention or imprisonment shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.* No circumstance
whatever may be invoked as a justification for torture or other cruel, inhuman or degrading
treatment or punishment.

Article 5 Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation and
degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited.

Article 5 Right to Humane Treatment
(1) Every person has the right to have his physical, mental, and moral integrity respected.
(2) No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or
treatment. All persons deprived of their liberty shall be treated with respect for the inherent
dignity of the human person.

Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
*
The term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to extend the widest
possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned
person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such
as sight or hearing, or of his awareness of place and the passing of time.
45
See also e.g. Soering v. UK, European Court of Human Rights Case No 1/1989/161/217; Cruz Varas v. Sweden,
App. No. 15576/89, Judgment of 20 March 1991 (para. 70); Vilvarajah and Others v. UK, App. No.
13163/87;13164/87;13165/87, Judgment of 30 October 1991, p. 32, (para. 103) and Chahal v. the United Kingdom,
App. No. 22414/93, Report of 27 June 1995.

55
3.2 Humane conditions in detention
3.2.1.1 Treaties

International Convention on the Protection of Human Rights of All Migrants and Their
Families, 1990
Article 17(1) Migrant workers and members of their families who are deprived of their liberty
shall be treated with humanity and with respect for the inherent dignity of the human person
and for their cultural identity.
(3) Any migrant worker or member of his or her family who is detained in a State of transit
or in a State of employment for violation of provisions relating to migration shall be held, in
so far as practicable, separately from convicted persons or persons detained pending trial.
(7) Migrant workers and members of their families who are subjected to any form of
detention or imprisonment in accordance with the law in force in the State of employment or
in the State of transit shall enjoy the same rights as nationals of those States who are in the
same situation.
General Comment No. 21 (1992) of the Human Rights Committee, Replaces general
comment 9 concerning humane treatment
of persons deprived of liberty
Paragraph 3 . . .Persons deprived of their liberty enjoy all the rights set forth in the Covenant,
subject to the restrictions that are unavoidable in a closed environment.
General Comment No. 15 (1986) of the Human Rights Committee, The position of aliens
under the ICCPR
Paragraph 7 If lawfully deprived of their liberty, [aliens] shall be treated with humanity and
with respect for the inherent dignity of their person.
General Comment No. 9 (1982) of the Human Rights Committee: Humane treatment of
persons deprived of liberty, (Article 10 of the ICCPR)
Paragraph 1 The humane treatment and the respect for the dignity of all persons deprived of
their liberty is a basic standard of universal application which cannot depend entirely on
material resources. While the Committee is aware that in other respects the modalities and

56
conditions of detention may vary with the available resources, they must always be applied
without discrimination, as required by article 2 (1).
Ultimate responsibility for the observance of this principle rests with the State as regards all
institutions where persons are lawfully held against their will, not only in prisons but also, for
example, hospitals, detention camps or correctional institutions.
General Recommendation No.30: Discrimination Against Non Citizens: The Committee

on the Elimination of Racial Discrimination, 01/10/2004.
Paragraph (19) Ensure the security of non-citizens, in particular with regard to arbitrary
detention, as well as ensure that conditions in centres for refugees and asylum-seekers meet
international standards;
C. v. Australia, Human Rights Committee, Communication No 900/1999: Australia.

13/11/2002. CCPR/C/76/D/900/1999,
asylum claim pending determination of his entitlement to asylum under Australian law. The
author complained inter alia of a breach of article 7 of the ICCPR.
The Committee concluded that the author’s psychiatric illness developed as a result of the
protracted period of immigration detention. In the Committee’s view, the continued detention
of the author when the State party was aware of the author’s mental condition and failed to
take the steps necessary to ameliorate the author’s mental deterioration constituted a violation
of his rights under article 7 of the Covenant [ICCPR].
Imprisonment, 1988
Principle 1 All persons under any form of detention or imprisonment shall be treated in a
humane manner and with respect for the inherent dignity of the human person.
Principle 3 There shall be no restriction upon or derogation from any of the human rights of
persons under any form of detention or imprisonment recognized or existing in any State
pursuant to law, conventions, regulations or custom on the pretext that this Body of Principles
does not recognize such rights or that it recognizes them to a lesser extent.
Principle 6 No person under any form of detention or imprisonment shall be subjected to

torture or to cruel, inhuman or degrading treatment or punishment.* No circumstance
*
The term “cruel, inhuman or degrading treatment or punishment” should be interpreted so as to extend the widest
possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned
person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such
as sight or hearing, or of his awareness of place and the passing of time.

57
whatever may be invoked as a justification for torture or other cruel, inhuman or degrading
treatment or punishment.
Principle 28 A detained or imprisoned person shall have the right to obtain within the limits
of available resources, if from public sources, reasonable quantities of educational, cultural
and informational material, subject to reasonable conditions to ensure security and good order
in the place of detention or imprisonment.
3.2.1.4 Other
Report of the Working Group on Arbitrary Detention on Visit to Mexico,

E/CN.4/2003/8/Add.3
Recommendation 72(d) …[The Working Group recommends that the Government should
consider] providing gaurantees to ensure that detainees are treated with respect for their
dignity…

Paragraph 54 Administrative detention should never be of a punitive nature. Furthermore, as
enshrined in article 10 of ICCPR, all persons deprived of their liberty shall be treated with
humanity and with respect for the inherent dignity of the human person. This implies not only
the right not to be subjected to torture or to cruel, inhuman or degrading treatment or
punishment, but also that migrants deprived of their liberty should be subjected to conditions
of detention that take into account their status and needs…
Recommendations
Paragraph 75 Governments should take measures to ensure respect for the human rights of
migrants in the context of deprivation of liberty, including by…
(i) Ensuring that migrants under administrative detention are placed in a public establishment
specifically intended for that purpose or, when this is not possible, in premises other than
those intended for persons imprisoned under criminal law…;
(j) Providing training to authorities with the power to detain on psychological aspects relating
to detention, cultural sensitivity and human rights procedures, and ensuring that centres for
the administrative detention of migrants are not run by private companies or staffed by private
personnel unless they are adequately trained and the centres are subject to regular public
supervision to ensure the application of international and national human rights law;
UN Sub-Commission on the Promotion and Protection of Minorities, ‘The rights of non-

citizens’, Final report of the Special Rapporteur David Weissbrodt,
E/CN.4/Sub.2/2003/23, 2003

58
Paragraph 27 … [C]onditions of detention faced by undocumented migrants and asylum-

seekers should meet international standards.46
Report of the World Conference against Racism, Racial Discrimination, Xenophobia

and Related Intolerance, Durban Programme of Action, A/CONF.189/12, 2001
Article 30 (d) Urges States: . .
To ensure that migrants, regardless of their immigration status, detained by public authorities
are treated with humanity and in a fair manner, and receive effective legal protection and,
where appropriate, the assistance of a competent interpreter in accordance with the relevant
norms of international law and human rights standards, particularly during interrogation;

Article 5 Every individual shall have the right to the respect of the dignity inherent in a
human being and to the recognition of his legal status. All forms of exploitation and
degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading
punishment and treatment shall be prohibited.

Article 5 Right to Humane Treatment
(1) Every person has the right to have his physical, mental, and moral integrity respected.
(2) No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or
treatment. All persons deprived of their liberty shall be treated with respect for the inherent
dignity of the human person.

Article XXV [Every individual] has the right to humane treatment during the time he is in
custody.
46
E/CN.4/Sub.2/2003/23/Add.1 (2003) para. 9.
47
Organisation mondiale contre la torture, Association internationale des juristes democrates, Commission
internationale des juristes, Union interafricaine des droits de l'homme v. Rwanda, (27/89, 46/91, 49/91, 99/93
respectively),10th Annual Report of the African Commission, 1996 -1997, ACHPR/RPT/10th where the African
Commission found that refugee women, children and elderly people were held in deplorable conditions in Rwanda,
in violation of Article 5 of the African Charter.

59
Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.

Guideline 10 Conditions of detention for asylum-seekers should be humane with respect for
the inherent dignity of the person. They should be prescribed by law. The following points in
particular should be emphasised:
(i) the initial screening of all asylum-seekers at the outset of detention to identify trauma or
torture victims, for treatment in accordance with Guideline 7.
(ii) the segregation within facilities of men and women; children from adults(unless these are
relatives);
(iii) the use of separate detention facilities to accommodate asylum-seekers. The use of
prisons should be avoided. If separate detention facilities are not used, asylum-seekers should
be accommodated separately from convicted criminals or prisoners on remand. There should
be no co-mingling of the two groups;
(iv) the opportunity to make regular contact and receive visits from friends, relatives, religious,
social and legal counsel. Facilities should be made available to enable such visits. Where
possible such visits should take place in private unless there are compelling reasons to warrant
the contrary;
(v) the opportunity to receive appropriate medical treatment, and psychological counselling
where appropriate;
(vi) the opportunity to conduct some form of physical exercise through daily indoor and
outdoor recreational activities;
(vii) the opportunity to continue further education or vocational training;
(viii) the opportunity to exercise their religion and to receive a diet in keeping with their
religion;
(ix) the opportunity to have access to basic necessities i.e. beds, shower facilities, basic
toiletries etc.;
(x) access to a complaints mechanism, (grievance procedures) where complaints may be
submitted either directly or confidentially to the detaining authority. Procedures for lodging
complaints, including time limits and appeal procedures, should be displayed and made
available to detainees in different languages.
48
See also e.g. Peers v Greece, European Court of Human Rights No. 28524/95 Judgment of 19th April 2001;
Dougoz v Greece, European Court of Human Rights No. 40907/98 Judgment of 6th March 2001 App. No.
40907/98, Judgment of 6 March 2001; Kalashnikov v. the Russian Federation App. No. 47095/99, Judgment of 15
July 2002; and Van der Ven v. the Netherlands, App. No. 50901/99, Judgment of 4 February 2003.

60

Asylum Seekers49
Paragraph (f) [It is] stressed that conditions of detention of refugees and asylum seekers must
be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be
accommodated with persons detained as common criminals, and shall not be located in areas
where their physical safety is endangered;
UNHCR ExCom Conclusion on International Protection No. 85 (XLIX) – 1998

(ee) Notes with concern that asylum-seekers detained only because of their illegal entry or
presence are often held together with persons detained as common criminals, and reiterates
that this is undesirable and must be avoided whenever possible, and that asylum-seekers shall
not be located in areas where their physical safety is in danger;
UNHCR ExCom Conclusion No. 22 (XXXII) – 1981, Protection of Asylum Seekers in

Paragraph 2 It is therefore essential that asylum-seekers who have been temporarily admitted
pending arrangements for a durable solution should be treated in accordance with the
following minimum basic human standards: . . . (d) they should be treated as persons whose
tragic plight requires special understanding and sympathy. They should not be subjected to
cruel, inhuman or degrading treatment;
49
See also ExCom Conclusion No. 68 (XLIII) – 1992, paragraph (e); ExCom Conclusion No. 71 (XLIV) – 1993,
paragraph (ee).

61
3.3 Communication with the outside world (family and

organizations)
3.3.1.1 Treaties
Article 17(5) During detention or imprisonment, migrant workers and members of their
families shall enjoy the same rights as nationals to visits by members of their families.
Paragraph 11 … The protection of the detainee also requires that prompt and regular access
be given to doctors and lawyers and, under appropriate supervision when the investigation so
requires, to family members.
Imprisonment, 1988
Principle 15 Notwithstanding the exceptions contained in principle 16, paragraph 4, and
principle 18, paragraph 3, communication of the detained or imprisoned person with the
outside world, and in particular his family or counsel, shall not be denied for more than a
matter of days.
Principle 16(1) Promptly after arrest and after each transfer from one place of detention or
imprisonment to another, a detained or imprisoned person shall be entitled to notify or to
require the competent authority to notify members of his family or other appropriate persons
of his choice of his arrest, detention or imprisonment or of the transfer and of the place where
he is kept in custody.
(2) If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his
right to communicate by appropriate means with a consular post or the diplomatic mission50
50
Please note contact with consular or diplomatic officials is not appropriate for asylum-seekers or refugees due to
the principle that refugee protection provides for people whose state is either unwilling or unable to provide
protection to them. Any contact with such officials could put an asylum-seeker or refugee at risk.

62
of the State of which he is a national or which is otherwise entitled to receive such

communication in accordance with international law or with the representative of the
competent international organization, if he is a refugee or is otherwise under the protection of
an intergovernmental organization.
(4) Any notification referred to in the present principle shall be made or permitted to be made
without delay. The competent authority may however delay a notification for a reasonable
period where exceptional needs of the investigation so require.
Principle 19 A detained or imprisoned person shall have the right to be visited by and to
correspond with, in particular, members of his family and shall be given adequate opportunity
to communicate with the outside world, subject to reasonable conditions and restrictions as
specified by law or lawful regulations.
Principle 20 If a detained or imprisoned person so requests, he shall if possible be kept in a

place of detention or imprisonment reasonably near his usual place of residence.
Principle 29(2) A detained or imprisoned person shall have the right to communicate freely
and in full confidentiality with the persons who visit the places of detention or imprisonment
[to supervise the strict observance of relevant laws and regulations therein]… subject to
reasonable conditions to ensure security and good order in such places.

Rule 37 Prisoners shall be allowed under necessary supervision to communicate with
their family and reputable friends at regular intervals, both by correspondence and by
receiving visits.
Rule 38(1) Prisoners who are foreign nationals shall be allowed reasonable facilities
to communicate with the diplomatic and consular representatives of the State to
which they belong51.
(2) Prisoners who are nationals of States without diplomatic or consular
representation in the country and refugees or stateless persons shall be allowed
similar facilities to communicate with the diplomatic representative of the State
which takes charge of their interests or any national or international authority whose
task it is to protect such persons.
Rule 39 Prisoners shall be kept informed regularly of the more important items of news by the
reading of newspapers, periodicals or special institutional publications, by hearing wireless
51
Please note contact with consular or diplomatic officials is not appropriate for asylum-seekers or refugees due to
the principle that refugee protection provides for people whose state is either unwilling or unable to provide
protection to them. Any contact with such officials could put an asylum-seeker or refugee at risk.

63
transmissions, by lectures or by any similar means as authorized or controlled by the

administration.
3.3.1.5 Other
Report of Working Group on Arbitrary Detention, Deliberation Number 5: Situation

regarding immigrants and asylum-seekers, E/CN.4/2000/4, Annex II, 2000
Principle 10 The Office of the United Nations High Commissioner for Refugees (UNHCR),
the International Committee of the Red Cross (ICRC) and, where appropriate, duly authorized
non-governmental organizations must be allowed access to the places of custody.
Report of Working Group on Arbitrary Detention on its visit to the UK on the issue of
immigrants and asylum seekers, E/CN.4/1999/63/Add.3 1999
Paragraph 31 Detainees should be given adequate access to their legal representatives,
relatives and officials of the Office of the United Nations High Commissioner for Refugees.
Paragraph 38 Specialized non-governmental organizations, the Office of the United Nations

High Commissioner for Refugees and legal representatives should have access to all places of
detention, including transit zones at international ports and airports.52

Paragraph 43 With regard to access to the outside world, the Special Rapporteur reiterates
that persons deprived of their liberty shall be permitted to have contact with, and receive
regular visits from, their relatives, lawyers and doctors and, when security requirements so
permit, third parties such as human rights organizations or other persons of their choice.

Recommendations
Paragraph 75 (i) ...Representatives of UNHCR, ICRC, NGOs and churches should be
allowed access to the place of custody.

procedural guarantees [such as] (v) to contact and be contacted by the local UNHCR Office,
52
For similar standards see Report of Working Group on Arbitrary Detention, E/CN.4/1999/63/Add.4., paras. 52,
53.

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available national refugee bodies or other agencies and an advocate. The right to
communicate with these representatives in private, and the means to make such contact
should be made available;
Guideline 10 The following points in particular should be emphasised [regarding conditions

of detention for asylum-seekers]:... (iv) The opportunity to make regular contact and receive
visits from friends, relatives, religious, social and legal counsel. Facilities should be made
available to enable such visits. Where possible such visits should take place in private unless
there are compelling reasons to warrant the contrary;

Asylum Seekers
Paragraph (g) Recommended that refugees and asylum-seekers who are detained be provided
with the opportunity to contact the Office of the United Nations High Commissioner for
Refugees or, in the absence of such office, available national refugee assistance agencies;

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3.4 Communication with consular officials – relevant

to migrants only
3.4.1.1 Treaties
Article 16(7) When a migrant worker or a member of his or her family is arrested or
committed to prison or custody pending trial or is detained in any other manner:
(a) The consular or diplomatic authorities of his or her State of origin or of a State
representing the interests of that State shall, if he or she so requests, be informed without
delay of his or her arrest or detention and of the reasons therefore;
(b) The person concerned shall have the right to communicate with the said authorities. Any
communication by the person concerned to the said authorities shall be forwarded without
delay, and he or she shall also have the right to receive communications sent by the said
authorities without delay;
(c) The person concerned shall be informed without delay of this right and of rights deriving
from relevant treaties, if any, applicable between the States concerned, to correspond and to
meet with representatives of the said authorities and to make arrangements with them for his
or her legal representation.
Article 23 Migrant workers and members of their families shall have the right to have
recourse to the protection and assistance of the consular or diplomatic authorities of their
State of origin or of a State representing the interests of that State whenever the rights
recognized in the present Convention are impaired…
Vienna Convention on Consular Relations, 196353

Article 36 (1) With a view to facilitating the exercise of consular functions relating to
nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to
have access to them. Nationals of the sending State shall have the same freedom with respect
to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay,
inform the consular post of the sending State if, within its consular district, a national of that
State is arrested or committed to prison or to custody pending trial or is detained in any other
manner. Any communication addressed to the consular post by the person arrested, in prison,
53
Please note that the Vienna Convention on Consular Relations is only relevant to migrants who do not have any
protection concerns (i.e. not refugees or asylum-seekers) as implicit in refugee status is the fact that state
protection is not available, and any contact with a state official can place a person at risk of persecution.

66
custody or detention shall also be forwarded by the said authorities without delay. The said
authorities shall inform the person concerned without delay of his rights under this sub-
paragraph;
(c) consular officers shall have the right to visit a national of the sending State who is in
prison, custody or detention, to converse and correspond with him and to arrange for his legal
representation… Nevertheless, consular officers shall refrain from taking action on behalf of a
national who is in prison, custody or detention if he expressly opposes such action.
General Assembly Resolution 59/194 on Protection of migrants (A/59/503/Add.2) of 18

March 2005
Paragraph (6) Reaffirms emphatically the duty of States parties to ensure full respect for and
observance of the Vienna Convention on Consular Relations of 1963, in particular with regard
to the right of all foreign nationals to communicate with a consular official of the sending
State in the case of arrest, imprisonment, custody or detention, and the obligation of the
receiving State to inform without delay the foreign national of his or her rights under the
Convention;
Imprisonment, 1988
Principle 15 Notwithstanding the exceptions contained in principle 16, paragraph 4, and
principle 18, paragraph 3, communication of the detained or imprisoned person with the
outside world, and in particular his family or counsel, shall not be denied for more than a
matter of days.
Principle 16(1) Promptly after arrest and after each transfer from one place of detention or
imprisonment to another, a detained or imprisoned person shall be entitled to notify or to
require the competent authority to notify members of his family or other appropriate persons
of his choice of his arrest, detention or imprisonment or of the transfer and of the place where
he is kept in custody.
(2) If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his
right to communicate by appropriate means with a consular post or the diplomatic mission54
of the State of which he is a national or which is otherwise entitled to receive such
communication in accordance with international law or with the representative of the
competent international organization, if he is a refugee or is otherwise under the protection of
an intergovernmental organization.
(4) Any notification referred to in the present principle shall be made or permitted to be made
without delay. The competent authority may however delay a notification for a reasonable
period where exceptional needs of the investigation so require.
54
See above at footnotes 50,51 & 53, contact with consular or diplomatic officials is not appropriate for asylum-
seekers or refugees.

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Rule 38(1) Prisoners who are foreign nationals shall be allowed reasonable facilities
to communicate with the diplomatic and consular representatives of the State to
which they belong. (2) Prisoners who are nationals of States without diplomatic or
consular representation in the country and refugees or stateless persons shall be
allowed similar facilities to communicate with the diplomatic representative of the
State which takes charge of their interests or any national or international authority
whose task it is to protect such persons.
3.4.1.4 Other

Paragraph 26(g)…Incommunicado detention should be made illegal, and persons held
incommunicado should be released without delay… The right of foreign nationals to have
their consular or other diplomatic representatives notified must be respected… In all
circumstances, a relative of the detainee should be informed of the arrest and place of
detention within 18 hours.

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3.5 Access to medical care
3.5.1.1 Treaties
International Covenant on Economic, Social and Cultural Rights, 1966

Article 12 (1) The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of the highest attainable standard of physical and mental health.
(2) The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for: . . .
(d) The creation of conditions which would assure to all medical service and medical attention
in the event of sickness.
Article 28
Migrant workers and members of their families shall have the right to receive any medical
care that is urgently required for the preservation of their life or the avoidance of irreparable
harm to their health on the basis of equality of treatment with nationals of the State concerned.
Such emergency medical care shall not be refused them by reason of any irregularity with
regard to stay or employment.
Paragraph 11 …The protection of the detainee also requires that prompt and regular access
be given to…doctors…
General Comment No. 14 (2000) of the Committee on Economic, Social and Cultural
Rights on the right to the highest attainable standard of health, (Article 12 of the
ICESCR)
Paragraph 34. In particular, States are under the obligation to respect the right to health by,
inter alia, refraining from denying or limiting equal access for all persons, including prisoners
or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and
palliative health services; abstaining from enforcing discriminatory practices as a State policy;
and abstaining from imposing discriminatory practices relating to women's health status and
needs.

69
C. v. Australia, Human Rights Committee, Communication No 900/1999: Australia.

13/11/2002. CCPR/C/76/D/900/1999,
asylum claim pending determination of his entitlement to asylum under Australian law. The
author complained that he had suffered a violation of article 7 of the ICCPR. He was detained
in such a way and for such a prolonged period (from his arrival on 22 July 1992 until 10
August 1994) as to cause him mental illness, from which he did not earlier suffer. The
medical evidence was unanimous in concluding that his sever psychiatric illness was brought
about by his prolonged incarceration. The Committee concluded that:
“Despite increasingly serious assessments of the author’s condition in February and June
1994 (and a suicide attempt), it was only in August 1994 that the Minister exercised his
exceptional power to release him from immigration detention on medical grounds (while
legally he remained in detention). As subsequent events showed, by that point the author’s
illness had reached such a level of severity that irreversible consequences were to follow. In
the Committee’s view, the continued detention of the author when the State party was aware
of the author’s mental condition and failed to take the steps necessary to ameliorate the
author’s mental deterioration constituted a violation of his rights under article 7 of the
Covenant.” (para 8.4)
Imprisonment, 1988
Principle 24 A proper medical examination shall be offered to a detained or imprisoned
person as promptly as possible after his admission to the place of detention or imprisonment,
and thereafter medical care and treatment shall be provided whenever necessary. This care
and treatment shall be provided free of charge.
Principle 25 A detained or imprisoned person or his counsel shall, subject only to reasonable
conditions to ensure security and good order in the place of detention or imprisonment, have
the right to request or petition a judicial or other authority for a second medical examination
or opinion.
Principle 26 The fact that a detained or imprisoned person underwent a medical examination,
the name of the physician and the results of such an examination shall be duly recorded.
Access to such records shall be ensured. Modalities therefore shall be in accordance with
relevant rules of domestic law.
Principles of Medical Ethics relevant to the Role of Health Personnel, particularly

Physicians, in the Protection of Prisoners and Detainees against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, 1982
Principle 1

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Health personnel, particularly physicians, charged with the medical care of prisoners and
detainees have a duty to provide them with protection of their physical and mental health and
treatment of disease of the same quality and standard as is afforded to those who are not
imprisoned or detained.
Principle 2
It is a gross contravention of medical ethics, as well as an offence under applicable
international instruments, for health personnel, particularly physicians, to engage, actively or
passively, in acts which constitute participation in, complicity in, incitement to or attempts to
commit torture or other cruel, inhuman or degrading treatment or punishment.
Principle 3
It is a contravention of medical ethics for health personnel, particularly physicians, to be
involved in any professional relationship with prisoners or detainees the purpose of which is
not solely to evaluate, protect or improve their physical and mental health.
Principle 4
It is a contravention of medical ethics for health personnel, particularly physicians:
(a) To apply their knowledge and skills in order to assist in the interrogation of prisoners and
detainees in a manner that may adversely affect the physical or mental health or condition of
such prisoners or detainees and which is not in accordance with the relevant international
instruments;
(b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for
any form of treatment or punishment that may adversely affect their physical or mental health
and which is not in accordance with the relevant international instruments, or to participate in
any way in the infliction of any such treatment or punishment which is not in accordance with
the relevant international instruments.
Principle 5
It is a contravention of medical ethics for health personnel, particularly physicians, to
participate in any procedure for restraining a prisoner or detainee unless such a procedure is
determined in accordance with purely medical criteria as being necessary for the protection of
the physical or mental health or the safety of the prisoner or detainee himself, of his fellow
prisoners or detainees, or of his guardians, and presents no hazard to his physical or mental
health.

Rule 22 (1) At every institution there shall be available the services of at least one qualified
medical officer who should have some knowledge of psychiatry. The medical services should
be organized in close relationship to the general health administration of the community or

71
nation. They shall include a psychiatric service for the diagnosis and, in proper cases, the
treatment of states of mental abnormality.
(2) Sick prisoners who require specialist treatment shall be transferred to specialized
institutions or to civil hospitals. Where hospital facilities are provided in an institution, their
equipment, furnishings and pharmaceutical supplies shall be proper for the medical care and
treatment of sick prisoners, and there shall be a staff of suitable trained officers.
(3) The services of a qualified dental officer shall be available to every prisoner.
Rule 23(1) In women's institutions there shall be special accommodation for all necessary
pre-natal and post-natal care and treatment. Arrangements shall be made wherever practicable
for children to be torn in a hospital outside the institution. If a child is born in prison, this fact
shall not be mentioned in the birth certificate.
(2) Where nursing infants are allowed to remain in the institution with their mothers,
provision shall be made for a nursery staffed by qualified persons, where the infants shall be
placed when they are not in the care of their mothers.
Rule 24 The medical officer shall see and examine every prisoner as soon as possible after his
admission and thereafter as necessary, with a view particularly to the discovery of physical or
mental illness and the taking of all necessary measures; the segregation of prisoners suspected
of infectious or contagious conditions; the noting of physical or mental defects which might
hamper rehabilitation, and the determination of the physical capacity of every prisoner for
work.
Rule 25 (1) The medical officer shall have the care of the physical and mental health of the
prisoners and should daily see all sick prisoners, all who complain of illness, and any prisoner
to whom his attention is specially directed.
(2) The medical officer shall report to the director whenever he considers that a prisoner's
physical or mental health has been or will be injuriously affected by continued imprisonment
or by any condition of imprisonment.
Rule 26 ( 1 ) The medical officer shall regularly inspect and advise the director upon:
(a) The quantity, quality, preparation and service of food;
(b) The hygiene and cleanliness of the institution and the prisoners;
(c) The sanitation, heating, lighting and ventilation of the institution;
(d) The suitability and cleanliness of the prisoners' clothing and bedding;
(e) The observance of the rules concerning physical education and sports, in cases where there
is no technical personnel in charge of these activities.
(2) The director shall take into consideration the reports and advice that the medical officer
submits according to rules 25 (2) and 26 and, in case he concurs with the recommendations
made, shall take immediate steps to give effect to those recommendations; if they are not
within his competence or if he does not concur with them, he shall immediately submit his
own report and the advice of the medical officer to higher authority.

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3.5.1.5 Other

Recommendations
Paragraph 75 (k) Ensuring that the Body of Principles for the Protection of All Persons under
any Form of Detention and Imprisonment are applied to all migrants under administrative
detention. The Principles include the provision of a proper medical examination as promptly
as possible and of medical treatment and care whenever necessary and free of charge; the
right to obtain, within the limits of available public resources, educational, cultural and
informational material;
the provision for regular visits of places of detention by qualified and experienced persons
appointed by, and responsible to, a competent authority distinct from the authority directly in
charge of the administration of the place of detention or imprisonment, in order to supervise
the strict observance of relevant laws and regulations;
(m) [Governments should take measures to ensure] the presence in holding centers of a doctor
with appropriate training in psychological treatments. Migrants should have the possibility of
being assisted by interpreters in their contacts with doctors or when requesting medical
attention. Detention of migrants with psychological problems, as well as those belonging to
vulnerable categories and in need of special assistance, should be only allowed as a measure
of last resort, and they should be provided with adequate medical and psychological
assistance;

Article 16(1) Every individual shall have the right to enjoy the best attainable state of physical
and mental health.
Article 14 (4). Anyone who is deprived of his liberty by arrest or detention shall have the
right to request a medical examination and must be informed of that right.

Article 23 The Contracting States shall accord to refugees lawfully staying in their territory
the same treatment with respect to public relief and assistance as is accorded to their nationals.

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Guideline 10(v) [Those detained should have] the opportunity to receive appropriate medical
treatment, and psychological counseling where appropriate;

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3.6 Place of detention
Paragraph 11 In addition to describing steps to provide the general protection against acts
prohibited under article 7 to which anyone is entitled, the State party should provide detailed
information on safeguards for the special protection of particularly vulnerable persons. It
should be noted that keeping under systematic review interrogation rules, instructions,
methods and practices as well as arrangements for the custody and treatment of persons
subjected to any form of arrest, detention or imprisonment is an effective means of preventing
cases of torture and ill-treatment. To guarantee the effective protection of detained persons,
provisions should be made for detainees to be held in places officially recognized as places of
detention and for their names and places of detention, as well as for the names of persons
responsible for their detention, to be kept in registers readily available and accessible to those
concerned, including relatives and friends. To the same effect, the time and place of all
interrogations should be recorded, together with the names of all those present and this
information should also be available for purposes of judicial or administrative proceedings.
Provisions should also be made against incommunicado detention. In that connection, States
parties should ensure that any places of detention be free from any equipment liable to be
used for inflicting torture or ill-treatment. The protection of the detainee also requires that
prompt and regular access be given to doctors and lawyers and, under appropriate supervision
when the investigation so requires, to family members.
Imprisonment, 1988
Principle 12(1)(d) There shall be duly recorded: . . .
Precise information concerning the place of custody.
Principle 20
If a detained or imprisoned person so requests, he shall if possible be kept in a place of
detention or imprisonment reasonably near his usual place of residence.

75

Rule 8 The different categories of prisoners shall be kept in separate institutions or parts of
institutions taking account of their sex, age, criminal record, the legal reason for their
detention and the necessities of their treatment. Thus,
(a) Men and women shall so far as possible be detained in separate institutions; in an
institution which receives both men and women the whole of the premises allocated to women
shall be entirely separate;
(b) Untried prisoners shall be kept separate from convicted prisoners;
(c) Persons imprisoned for debt and other civil prisoners shall be kept separate from persons
imprisoned by reason of a criminal offence;
(d) Young prisoners shall be kept separate from adults.
3.6.1.4 Other
Report of the Working Group on Arbitrary Detention, Deliberation No. 5, Annex II,
E/CN.4/2000/4
Principle 9 Custody must be affected in a public establishment specifically intended for this
purpose; when, for practical reasons, this is not the case, the asylum-seeker or immigrant must
be placed in premises separate from those for persons imprisoned under criminal law.
Report of the Working Group on Arbitrary Detention (on its visit to the UK on the issue
of immigrants and asylum seekers), E/CN.4/1999/63/Add.3
Recommendation 30 Detainees should be held in special immigration detention centres in
conditions appropriate to their status and not with persons charged with or convicted of
criminal offences (unless so charged or convicted themselves).
Report of Working Group on Arbitrary Detention, (Visit to Argentina)

E/CN.4/2004/3/Add.3, 2004
Recommendation 75 ...The…practice of detaining foreigners for reasons related to
immigration together with individuals charged with ordinary offences should be halted.

Paragraph 75(i) Ensuring that migrants under administrative detention are placed in a public
establishment specifically intended for that purpose or, when this is not possible, in premises
other than those intended for persons imprisoned under criminal law.

Paragraph 119 All Governments are urged to increase human rights training for immigration
officials, the police and bodies that prevent violations of human rights. Officials dealing with

76
migrants who are in detention or who have been subjected to trafficking or degrading work
because they have no documentation must receive special training relating to the situation of
these persons. Codes of conduct must be drafted so that professional attention may be given to
this problem.
Paragraph 122 The Special Rapporteur urges States to work together with organs of civil
society on the human rights situation in detention centres. Links between States and NGOs
must be strengthened with a view to assistance for migrants in detention centres…

Guideline 1 For the purpose of these guidelines, UNHCR considers detention as: confinement
within a narrowly bounded or restricted location, including prisons, closed camps, detention
facilities or airport transit zones, where freedom of movement is substantially curtailed, and
where the only opportunity to leave this limited area is to leave the territory. There is a
qualitative difference between detention and other restrictions on freedom of movement.
Persons who are subject to limitations on domicile and residency are not generally considered
to be in detention. When considering whether an asylum-seeker is in detention, the
cumulative impact of the restrictions as well as the degree and intensity of each of them
should also be assessed.
Guideline 8 Where women asylum-seekers are detained they should be accommodated

separately from male asylum-seekers, unless these are close family relatives. In order to
respect cultural values and improve the physical protection of women in detention centres, the
use of female staff is recommended.
Guideline 10 Conditions of detention for asylum-seekers should be humane with respect for
the inherent dignity of the person. They should be prescribed by law. . .
The following points in particular should be emphasised [regarding conditions of detention
for asylum-seekers]:...
(ii) the segregation within facilities of men and women; children from adults(unless these are
relatives);
(iii) the use of separate detention facilities to accommodate asylum-seekers. The use of
prisons should be avoided. If separate detention facilities are not used, asylum-seekers should
be accommodated separately from convicted criminals or prisoners on remand. There should
be no co-mingling of the two groups;

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Asylum Seekers55
Paragraph (f) [It is] stressed that conditions of detention of refugees and asylum seekers must
be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be
accommodated with persons detained as common criminals, and shall not be located in areas
where their physical safety is endangered;
55
See also ExCom Conclusion No. 68 (XLIII) – 1992, paragraph (e); ExCom Conclusion No. 71 (XLIV) – 1993,
paragraph (ee).

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3.7 Record keeping and inspection
Paragraph 11 . . . To guarantee the effective protection of detained persons, provisions
should be made for detainees to be held in places officially recognized as places of detention
and for their names and places of detention, as well as for the names of persons responsible
for their detention, to be kept in registers readily available and accessible to those concerned,
including relatives and friends.
Imprisonment, 1988
Principle 12(1) There shall be duly recorded:
(a) The reasons for the arrest;
(b) The time of the arrest and the taking of the arrested person to a place of custody as well as
that of his first appearance before a judicial or other authority;
(c) The identity of the law enforcement officials concerned;
(d) Precise information concerning the place of custody.
(2) Such records shall be communicated to the detained person, or his counsel, if any, in the
form prescribed by law.
Principle 23 (1) The duration of any interrogation of a detained or imprisoned person and of
the intervals between interrogations as well as the identity of the officials who conducted the
interrogations and other persons present shall be recorded and certified in such form as may
be prescribed by law.
(2) A detained or imprisoned person, or his counsel when provided by law, shall have access
to the information described in paragraph 1 of the present principle.

79
Principle 26The fact that a detained or imprisoned person underwent a medical examination,
the name of the physician and the results of such an examination shall be duly recorded.
Access to such records shall be ensured. Modalities therefore shall be in accordance with
relevant rules of domestic law.
Principle 29(1) In order to supervise the strict observance of relevant laws and regulations,
places of detention shall be visited regularly by qualified and experienced persons appointed
by, and responsible to, a competent authority distinct from the authority directly in charge of
the administration of the place of detention or imprisonment.
(2) A detained or imprisoned person shall have the right to communicate freely and in full
confidentiality with the persons who visit the places of detention or imprisonment in
accordance with paragraph 1 of the present principle, subject to reasonable conditions to
ensure security and good order in such places.
Principle 33(1) A detained or imprisoned person or his counsel shall have the right to make a
request or complaint regarding his treatment, in particular in case of torture or other cruel,
inhuman or degrading treatment, to the authorities responsible for the administration of the
place of detention and to higher authorities and, when necessary, to appropriate authorities
vested with reviewing or remedial powers.
(2) In those cases where neither the detained or imprisoned person nor his counsel has the
possibility to exercise his rights under paragraph 1 of the present principle, a member of the
family of the detained or imprisoned person or any other person who has knowledge of the
case may exercise such rights.
(3) Confidentiality concerning the request or complaint shall be maintained if so requested by
the complainant.
(4) Every request or complaint shall be promptly dealt with and replied to without undue
delay. If the request or complaint is rejected or, in case of inordinate delay, the complainant
shall be entitled to bring it before a judicial or other authority. Neither the detained or
imprisoned person nor any complainant under paragraph 1 of the present principle shall suffer
prejudice for making a request or complaint.
Principle 34 Whenever the death or disappearance of a detained or imprisoned person occurs

during his detention or imprisonment, an inquiry into the cause of death or disappearance
shall be held by a judicial or other authority, either on its own motion or at the instance of a
member of the family of such a person or any person who has knowledge of the case. When
circumstances so warrant, such an inquiry shall be held on the same procedural basis
whenever the death or disappearance occurs shortly after the termination of the detention or
imprisonment. The findings of such inquiry or a report thereon shall be made available upon
request, unless doing so would jeopardize an ongoing criminal investigation.
Principle 35 (2) Information required to be recorded under these principles shall be available
in accordance with procedures provided by domestic law for use in claiming compensation
under the present principle.

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Rule 7 (1) In every place where persons are imprisoned there shall be kept a bound
registration book with numbered pages in which shall be entered in respect of each prisoner
received:
(a) Information concerning his identity;
(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.
(2) No person shall be received in an institution without a valid commitment order of which
the details shall have been previously entered in the register. Separation of categories
3.7.1.4 Other

Paragraph 26(f) Regular inspection of places of detention, especially when carried out as part
of a system of periodic visits, constitutes one of the most effective preventive measures
against torture. Independent non-governmental organizations should be authorized to have
full access to all places of detention, including police lock-ups, pre-trial detention centres,
security service premises, administrative detention areas, detention units of medical and
psychiatric institutions and prisons, with a view to monitoring the treatment of persons and
their conditions of detention. When inspection occurs, members of the inspection team should
be afforded an opportunity to speak privately with detainees. The team should also report
publicly on its findings. In addition, official bodies should be set up to carry out inspections,
such teams being composed of members of the judiciary, law enforcement officials, defence
lawyers and physicians, as well as independent experts and other representatives of civil
society. Ombudsmen and national or human rights institutions should be granted access to all
places of detention with a view to monitoring the conditions of detention. When it so requests,
the International Committee of the Red Cross should be granted access to places of detention.
Non-governmental organizations and other monitoring bodies should also be granted access
to non-penal State-owned institutions caring for the elderly, the mentally disabled and
orphans as well as to holding centres for aliens, including asylum-seekers and migrants.
(g) Information regarding the time and place of arrest as well as the identity of the law
enforcement officials having carried out the arrest should be scrupulously recorded; similar
information should also be recorded regarding the actual detention, the state of health upon
arrival at the detention centre, as well as the time the next of kin and lawyer were contacted
and visited the detainee… Security personnel who do not honour such provisions [regarding
access to legal counsel and foreign nationals’ right to have their consular or other diplomatic
representatives notified] should be disciplined…
(k) When a detainee or relative or lawyer lodges a torture complaint, an inquiry should always
take place and, unless the allegation is manifestly ill-founded, the public officials involved

81
should be suspended from their duties pending the outcome of the investigation and any
subsequent legal or disciplinary proceedings.

Recommendations
Paragraph 75 Governments should take measures to ensure respect for the human rights of
migrants in the context of deprivation of liberty, including by…
(l) Ensuring the existence of mechanisms allowing detained migrants to make a request or
complaint regarding their treatment, in particular in case of physical and psychological abuse,
to the authorities responsible for the administration of the place of detention and to higher
authorities and, when necessary, to judicial authorities;
Report of Working Group on Arbitrary Detention, E/CN.4/1999/63/Add.3, 1999

Paragraph 40 National authorities should provide detailed information on relevant policy,
practice and statistics in order to ensure transparency [regarding detention].
Commission on Human Rights, Resolution 1994/37, 1994

Security personnel who do not honor such provisions [regarding access to a lawyer] should be
disciplined.

Guideline 10(x) [Everyone shall have] access to a complaints mechanism, (grievance
procedures) where complaints may be submitted either directly or confidentially to the
detaining authority. Procedures for lodging complaints, including time limits and appeal
procedures, should be displayed and made available to detainees in different languages.

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4. Human Rights Standards – General:

Non-Discrimination and Proportionality
4.1 International human rights standards
4.1.1 Treaties

Article 2(1) Each State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant, without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Article 12 (3) The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others, and are consistent with
the other rights recognized in the present Covenant.
Article 26 All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.
Article 7 States Parties undertake, in accordance with the international instruments concerning
human rights, to respect and to ensure to all migrant workers and members of their families
within their territory or subject to their jurisdiction the rights provided for in the present
Convention without distinction of any kind such as to sex, race, colour, language, religion or
conviction, political or other opinion, national, ethnic or social origin, nationality, age,
economic position, property, marital status, birth or other status.
Article 39 (1) Migrant workers and members of their families shall have the right to liberty of
movement in the territory of the State of employment and freedom to choose their residence
there.
(2) The rights mentioned in paragraph 1 of the present article shall not be subject to any
restrictions except those that are provided by law, are necessary to protect national security,

83
public order (ordre public), public health or morals, or the rights and freedoms of others and
are consistent with the other rights recognized in the present Convention.
4.1.2 Treaty Monitoring Bodies
General Comment No. 31 (2004) of the Human Rights Committee on the Nature of the
General Legal Obligation Imposed on State Parties to the Covenant (ICCPR)
Paragraph 10 . . . the enjoyment of Covenant rights is not limited to citizens of States Parties
but must also be available to all individuals, regardless of nationality or statelessness, such as
asylum seekers, refugees, migrant workers and other persons, who may find themselves in the
territory or subject to the jurisdiction of the State Party.
General Comment No. 27 (1999) of the Human Rights Committee, Freedom of

movement (Art.12 of the ICCPR)
Para 2 The permissible limitations which may be imposed on the rights protected under
article 12 must not nullify the principle of liberty of movement, and are governed by the
requirement of necessity provided for in article 12, paragraph 3, and by the need for
consistency with the other rights recognized in the Covenant.
Para 4. Everyone lawfully within the territory of a State enjoys, within that territory, the right
to move freely and to choose his or her place of residence. . .The question whether an alien is
"lawfully" within the territory of a State is a matter governed by domestic law, which may
subject the entry of an alien to the territory of a State to restrictions, provided they are in
compliance with the State's international obligations. In that connection, the Committee has
held that an alien who entered the State illegally, but whose status has been regularized, must
be considered to be lawfully within the territory for the purposes of article 12.56 Once a person
is lawfully within a State, any restrictions on his or her rights guaranteed by article 12,
paragraphs 1 and 2, as well as any treatment different from that accorded to nationals, have to
be justified under the rules provided for by article 12, paragraph 3.57 It is, therefore, important
that States parties indicate in their reports the circumstances in which they treat aliens
differently from their nationals in this regard and how they justify this difference in treatment.
Para 14. Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions
serve the permissible purposes; they must also be necessary to protect them. Restrictive
measures must conform to the principle of proportionality; they must be appropriate to
achieve their protective function; they must be the least intrusive instrument amongst those
which might achieve the desired result; and they must be proportionate to the interest to be
protected.
Para 15 The principle of proportionality has to be respected not only in the law that frames
the restrictions, but also by the administrative and judicial authorities in applying the law.
56
Communication No. 456/1991, Celepli v. Sweden, para. 9.2.
57
General comment No. 15, para. 8, in HRI/GEN/1/Rev.3, 15 August 1997, p. 20.

84
States should ensure that any proceedings relating to the exercise or restriction of these rights
are expeditious and that reasons for the application of restrictive measures are provided.
General Comment No. 18 (1989) of the Human Rights Committee on Non discrimination
(ICCPR)
Paragraph 1 Non-discrimination, together with equality before the law and equal protection
of the law without any discrimination, constitute a basic and general principle relating to the
protection of human rights. Thus, article 2, paragraph 1, of the International Covenant on
Civil and Political Rights obligates each State party to respect and ensure to all persons within
its territory and subject to its jurisdiction the rights recognized in the Covenant without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. Article 26 not only entitles all persons
to equality before the law as well as equal protection of the law but also prohibits any
discrimination under the law and guarantees to all persons equal and effective protection
against discrimination on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status.
General Comment No. 15 (1986) of the Human Rights Committee on the Position of
Aliens under the Covenant (ICCPR)
Paragraph 1 Reports from States parties have often failed to take into account that each State
party must ensure the rights in the Covenant to "all individuals within its territory and subject
to its jurisdiction" (art. 2, para. 1). In general, the rights set forth in the Covenant apply to
everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.
Paragraph 2 Thus, the general rule is that each one of the rights of the Covenant must be
guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of
the general requirement of non-discrimination in respect of the rights guaranteed in the
Covenant, as provided for in article 2 thereof. This guarantee applies to aliens and citizens
alike. Exceptionally, some of the rights recognized in the Covenant are expressly applicable
only to citizens (art. 25), while article 13 applies only to aliens. However, the Committee's
experience in examining reports shows that in a number of countries other rights that aliens
should enjoy under the Covenant are denied to them or are subject to limitations that cannot
always be justified under the Covenant.

30/04/97. CCPR/C/59/D/560/1993
The author, a Cambodian asylum-seeker arrived in Australia and shortly thereafter applied for
was detained for over four years during his refugee status was being determined. The author
argued inter alia that he had been detained arbitrarily within the meaning of article 9(1).
The Committee concluded that:

“…the notion of “arbitrariness” must not be equated with “against the law” but be interpreted
more broadly to include such elements as inappropriateness and injustice. Furthermore,

85
remand in custody could be considered arbitrary if it is not necessary in all circumstances of

the case, for example to prevent flight or interference with evidence: the element of
proportionality becomes relevant in this context.” (para. 9.2)
4.1.3 General Assembly Resolutions

Article 1 All human beings are born free and equal in dignity and rights. They are endowed
with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2 Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status. Furthermore, no distinction
shall be made on the basis of the political, jurisdictional or international status of the country
or territory to which a person belongs, whether it be independent, trust, non-self-governing or
under any other limitation of sovereignty.
Imprisonment, 1988
Principle 5(1) These principles shall be applied to all persons within the territory of
any given State, without distinction of any kind, such as race, colour, sex, language,
religion or religious belief, political or other opinion, national, ethnic or social origin,
property, birth or other status.
4.1.4 Economic and Social Council Resolutions

Rule 6(1) The following rules shall be applied impartially. There shall be no discrimination
on grounds of race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
(2) On the other hand, it is necessary to respect the religious beliefs and moral
precepts of the group to which a prisoner belongs.
4.1.5 Other

Recommendations
Paragraph 75 The Special Rapporteur has strenuously promoted the idea that the only way to
halt the continuing deterioration in immigrants’ situation, particularly that of illegal
immigrants, is to recognize the human rights of this group and apply the principle of non-
discrimination.

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4.2 Regional human rights standards

Article 2 Every individual shall be entitled to the enjoyment of the rights and freedoms
recognized and guaranteed in the present Charter without distinction of any kind such as race,
ethnic group, color, sex, language, religion, political or any other opinion, national and social
origin, fortune, birth or other status.

Article 1(1) The States Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for reasons of race, color,
sex, language, religion, political or other opinion, national or social origin, economic status,
birth, or any other social condition.

Article II All persons are equal before the law and have the rights and duties established in
this Declaration, without distinction as to race, sex, language, creed or any other factor.
Article 3 (1) Each State party to the present Charter undertakes to ensure to all individuals
subject to its jurisdiction the right to enjoy the rights and freedoms set forth herein, without
distinction on grounds of race, colour, sex, language, religious belief, opinion, thought,
national or social origin, wealth, birth or physical or mental disability.

Article 14 The enjoyment of the rights and freedoms set forth in this Convention shall be
secured without discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority,
property, birth or other status.
58
See also I-A Court HR, Gangaram Panday Case v. Suriname, judgment of January 21, 1994, in OAS doc.
OAS/Ser.L/V/III.31, doc. 9, Annual Report of the Inter-American Court of Human Rights 1994, p. 32, para. 47.
59
The principle of proportionality is incorporated into European Community law by way of Article 3 of the EU
Amsterdam Treaty, which states: “Any action by the Community shall not go beyond what is necessary to achieve
the objectives of this Treaty”, and Protocol (30) on the application of the principles of subsidiarity and
proportionality annexed to the Treaty on the European Union and to the Treaty establishing the European
Community explicitly refers to this: “(Each EU institution) shall also ensure compliance with the principle of
proportionality, according to which any action by the Community shall not go beyond what is necessary to achieve
the objectives of the Treaty.” It also runs through the caselaw of the European Court of Human Rights. For more
see e.g. Nicholas Emiliou, The Principle of Proportionality in European Law, A Comparative Study (Kluwer Law
International, 1996)

87
4.3 International refugee and asylum-seeker standards

Article 31 (2) The Contracting States shall not apply to the movements of such
refugees restrictions other than those which are necessary and such restrictions shall
only be applied until their status in the country is regularized or they obtain admission
into another country. The Contracting States shall allow such refugees a reasonable
period and all the necessary facilities to obtain admission into another country.

Guideline 3 . . .In assessing whether detention of asylum-seekers is necessary, account should
be taken of whether it is reasonable to do so and whether it is proportional to the objectives to
be achieved. If judged necessary it should only be imposed in a non discriminatory manner
for a minimal period.
UNHCR ExCom Conclusion No. 22 (XXXII) – 1977, Treatment of Asylum Seekers in

Paragraph II(B)(2) …[A]sylum seekers who have been temporarily admitted pending
arrangements for a durable solution should be treated in accordance with the following
minimum basic human standards: … (e) There should be no discrimination on the grounds of
race, religion, political opinion, nationality, country of origin or physical incapacity

88
5. Human Rights Standards – Standards

relating to particular groups
5.1 Children
5.1.1.1 Treaties
UN Convention on the Rights of Child, 1990

Article 2(1) States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of any kind,
irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin, property, disability, birth
or other status.
(2) States Parties shall take all appropriate measures to ensure that the child is protected
against all forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child's parents, legal guardians, or family members.
Article 3(1) In all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
Article 9 (1) States Parties shall ensure that a child shall not be separated from his or her
parents against their will, except when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures, that such separation is
necessary for the best interests of the child. Such determination may be necessary in a
particular case such as one involving abuse or neglect of the child by the parents, or one
where the parents are living separately and a decision must be made as to the child's place of
residence.
(2)In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall
be given an opportunity to participate in the proceedings and make their views known.
(3) States Parties shall respect the right of the child who is separated from one or both parents
to maintain personal relations and direct contact with both parents on a regular basis, except if
it is contrary to the child's best interests.
(4) Where such separation results from any action initiated by a State Party, such as the
detention, imprisonment, exile, deportation or death (including death arising from any cause
while the person is in the custody of the State) of one or both parents or of the child, that State

89
Party shall, upon request, provide the parents, the child or, if appropriate, another member of
the family with the essential information concerning the whereabouts of the absent member(s)
of the family unless the provision of the information would be detrimental to the well-being
of the child. States Parties shall further ensure that the submission of such a request shall of
itself entail no adverse consequences for the person(s) concerned.
Article 20 (1) A child temporarily or permanently deprived of his or her family environment,
or in whose own best interests cannot be allowed to remain in that environment, shall be
entitled to special protection and assistance provided by the State.
(2) States Parties shall in accordance with their national laws ensure alternative care for such
a child.
(3) Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if
necessary placement in suitable institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and
to the child's ethnic, religious, cultural and linguistic background.
Article 22(1) States Parties shall take appropriate measures to ensure that a child who is
seeking refugee status or who is considered a refugee in accordance with applicable
international or domestic law and procedures shall, whether unaccompanied or accompanied
by his or her parents or by any other person, receive appropriate protection and humanitarian
assistance in the enjoyment of applicable rights set forth in the present Convention and in
other international human rights or humanitarian instruments to which the said States are
Parties.
Article 37 States Parties shall ensure that:...

(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent
dignity of the human person, and in a manner which takes into account the needs of persons
of his or her age. In particular, every child deprived of liberty shall be separated from adults
unless it is considered in the child’s best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and visits, save in exceptional
circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and
other appropriate assistance, as well as the right to challenge the legality of the deprivation of
his or her liberty before a court or other competent, independent and impartial authority, and
to a prompt decision on any such action.
Imprisonment, 1988

90
Principle 15(3) If a detained or imprisoned person is a juvenile or is incapable of

understanding his entitlement, the competent authority shall on its own initiative undertake
the notification referred to in the present principle. Special attention shall be given to
notifying parents or guardians.
UN Rules for the Protection of Juveniles Deprived of their Liberty, 1990

Rule 2 Juveniles should only be deprived of their liberty in accordance with the principles and
procedures set forth in these Rules and in the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice (The Beijing Rules). 60 Deprivation of the liberty of a
juvenile should be a disposition of last resort and for the minimum necessary period and
should be limited to exceptional cases. The length of the sanction should be determined by the
judicial authority, without precluding the possibility of his or her early release.
Rule 4 The Rules should be applied impartially, without discrimination of any kind as to race,
colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or
practices, property, birth or family status, ethnic or social origin, and disability. The religious
and cultural beliefs, practices and moral concepts of the juvenile should be respected.
Rule 13 Juveniles deprived of their liberty shall not for any reason related to their status be
denied the civil, economic, political, social or cultural rights to which they are entitled under
national or international law, and which are compatible with the deprivation of liberty.
Rule 14 The protection of the individual rights of juveniles with special regard to the legality
of the execution of the detention measures shall be ensured by the competent authority, while
the objectives of social integration should be secured by regular inspections and other means
of control carried out, according to international standards, national laws and regulations, by a
duly constituted body authorized to visit the juveniles and not belonging to the detention
facility.61
Rule 18 The conditions under which an untried juvenile is detained should be consistent with
the rules set out below, with additional specific provisions as are necessary and appropriate,
given the requirements of the presumption of innocence, the duration of the detention and the
legal status and circumstances of the juvenile. These provisions would include, but not
necessarily be restricted to, the following:
(a) Juveniles should have the right of legal counsel and be enabled to apply for free legal aid,
where such aid is available, and to communicate regularly with their legal advisers. Privacy
and confidentiality shall be ensured for such communications;
(b) Juveniles should be provided, where possible, with opportunities to pursue work, with
remuneration, and continue education or training, but should not be required to do so. Work,
education or training should not cause the continuation of the detention;
60
Adopted by General Assembly resolution 40/33 of 29 November 1985. Full text and commentary to the Rules
can be found at: http://www.unhchr.ch/html/menu3/b/h_comp48.htm
61
See also Rule 87 regarding respect for human dignity and fundamental human rights.

91
(c) Juveniles should receive and retain materials for their leisure and recreation as are
compatible with the interests of the administration of justice.62
United Nations Standard Minimum Rules for the Administration of Juvenile Justice
(The Beijing Rules), 1985
Rule 13.1 Detention pending trial shall be used only as a measure of last resort and for the
shortest possible period of time.
13.3 Juveniles under detention pending trial shall be entitled to all rights and guarantees of the
Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations.
13.4 Juveniles under detention pending trial shall be kept separate from adults and shall be
detained in a separate institution or in a separate part of an institution also holding adults.
13.5 While in custody, juveniles shall receive care, protection and all necessary individual
assistance - social, educational, vocational, psychological, medical and physical - that they
may require in view of their age, sex and personality.
15.1 Throughout the proceedings the juvenile shall have the right to be represented by a legal
adviser or to apply for free legal aid where there is provision for such aid in the country.
15.2 The parents or the guardian shall be entitled to participate in the proceedings and may be
required by the competent authority to attend them in the interest of the juvenile. They may,
however, be denied participation by the competent authority if there are reasons to assume
that such exclusion is necessary in the interest of the juvenile.
17.1 The disposition of the competent [adjudication] authority shall be guided by the
following principles:
(a) The reaction taken shall always be in proportion not only to the circumstances and the
gravity of the offence but also to the circumstances and the needs of the juvenile as well as to
the needs of the society;
(b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful
consideration and shall be limited to the possible minimum;
62
Adopted by General Assembly resolution 45/113 of 14 Dec 1990.
http://www.unhchr.ch/html/menu3/b/h_comp37.htm
See also Rule 6 (right to interpreter); Rule 11 (definition of ‘juvenile’ and ‘deprivation of liberty’); Rule 19
(maintaining confidentiality of individual legal and medical records and those of disciplinary proceedings); Rule
20 (prohibition against receiving juvenile at detention facility without valid commitment order); Rule 21-23
(Complete and secure information on each juvenile received, reason for commitment, known health problems,
provision of information on admission, transfer and release to parents and guardians); Rule 24, 75-78 (provision to
juveniles of rules governing the detention facility, their rights and obligations, and address of the authorities
competent to receive complaints); Rule 25 (understanding of organisation of the facility, goals and methodology of
the care provided, disciplinary requirements, authorised methods of seeking information and of making
complaints); Rule 28 (conditions must take account of juveniles’ needs according to age, personality, sex, type of
offence and mental and physical health). Rule 29 (separation from adults); Rule 31 (meeting requirements of
health and human dignity); Rule 38 (right to education); Rule 44 (application of national and international
standards on child labour and young workers); Rule 48 (religious rights); Rule 49-50 (preventive and remedial
medical care, examination by a physician upon admission to record any prior ill-treatment); Rule 59-61
(communication with the outside world, right to receive visitors); Rule 62 (opportunity to keep themselves
informed of the news); Rule 66 (extent and objectives of disciplinary measures); Rule 72-74 (regular inspection
and reports on facility and records by independent and qualified personnel, including medical officers); and Rule
81, 85 (qualified personnel and training to carry out their responsibilities effectively).

92
(c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a
serious act involving violence against another person or of persistence in committing other
serious offences and unless there is no other appropriate response;
(d) The well-being of the juvenile shall be the guiding factor in the consideration of her or his
case.
5.1.1.3 Other
Report of the Working Group on Arbitrary Detention on its visit to the UK on the issue
of immigrants and asylum seekers), E/CN.4/1999/63/Add.3
Paragraph 37 Unaccompanied minors should never be detained.
Sub-Commission on the Promotion and Protction of Human Rights Resolution 2002/23,

‘International Protection of Refugees’, 2002
Paragraph 4 [The Sub-Commission] encourages states to explore alternatives to detention
and to ensure that children under 18 are not detained.

Paragraph 54 …In particular, every child deprived of liberty shall be separated from adults
unless it is considered in the child’s best interest not to do so and shall have the right to
maintain contact with his or her family through correspondence and visits, save in exceptional
circumstances.
Recommendations
migrants in the context of deprivation of liberty, including by:
(a) Ensuring that the legislation does not allow for the detention of unaccompanied children
and that detention of children is permitted only as a measure of last resort and only when it is
in the best interest of the child, for the shortest appropriate period of time and in conditions
that ensure the realization of the rights enshrined in the Convention on the Rights of the Child,
including access to education and health. Children under administrative custodial measures
should be separated from adults, unless they can be housed with relatives in separate settings.
Children should be provided with adequate food, bedding and medical assistance and granted
access to education and to open-air recreational activities. When migrant children are detained,
the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and the
United Nations Standard Minimum Rules for the Administration of Juvenile Justice should be
strictly adhered to. Should the age of the migrant be in dispute, the most favourable treatment
should be accorded until it is determined whether he/she is a minor;

93

Guideline 6 In accordance with the general principle stated at Guideline 2 and the UNHCR
Guidelines on Refugee Children, minors who are asylum-seekers should not be detained.
In this respect particular reference is made to the Convention on the Rights of the Child in
particular:
- Article 2 which requires that States take all measures appropriate to ensure that children are
protected from all forms of discrimination or punishment on the basis of the status, activities,
expressed opinions, or beliefs of the child’s parents, legal guardians or family members;
- Article 3 which provides that in any action taken by States Parties concerning children, the
best interests of the child shall be a primary consideration;
- Article 9 which grants children the right not to be separated from their parents against their
will;
- Article 22 which requires that States Parties take appropriate measures to ensure that minors
who are seeking refugee status or who are recognised refugees, whether accompanied or not,
receive appropriate protection and assistance;
- Article 37 by which States Parties are required to ensure that the detention of minors be used
only as a measure of last resort and for the shortest appropriate period of time.
Unaccompanied minors should not, as a general rule, be detained. Where possible they should
be released into the care of family members who already have residency within the asylum
country. Where this is not possible, alternative care arrangements should be made by the
competent child care authorities for unaccompanied minors to receive adequate
accommodation and appropriate supervision. Residential homes or foster care placements
may provide the necessary facilities to ensure their proper development, (both physical and
mental), is catered for while longer term solutions are being considered.
All appropriate alternatives to detention should be considered in the case of children
accompanying their parents. Children and their primary caregivers should not be detained
unless this is the only means of maintaining family unity.
If none of the alternatives can be applied and States do detain children, this should, in
accordance with Article 37 of the Convention on the Rights of the Child, be as a measure of
last resort, and for the shortest period of time.

94
If children who are asylum-seekers are detained at airports, immigration-holding centres or

prisons, they must not be held under prison- like conditions. All efforts must be made to have
them released from detention and placed in other accommodation. If this proves impossible,
special arrangements must be made for living quarters which are suitable for children and
their families.
During detention, children have a right to education which should optimally take place
outside the detention premises in order to facilitate the continuation of their education upon
release. Provision should be made for their recreation and play which is essential to a child’s
mental development and will alleviate stress and trauma.
Children who are detained, benefit from the same minimum procedural guarantees (listed at
Guideline 5) as adults. A legal guardian or adviser should be appointed for unaccompanied
minors.63
UNHCR ExCom Conclusion No. 47 (XXXVIII) – 1987, Refugee Children

Paragraph (d) [The Executive Committee] stressed that all action taken on behalf of refugee
children must be guided by the principle of the best interests of the child as well as by the
principle of family unity;
Paragraph (e) Condemned the exposure of refugee children to physical violence and other
violations of their basic rights, including through sexual abuse, trade in children, acts of
piracy, military or armed attacks, forced recruitment, political exploitation or arbitrary
detention, and called for national and international action to prevent such violations and assist
the victims;
UNHCR ExCom Conclusion No. 85 (XLIX) – Conclusion on International Protection

Paragraph (dd) Deplores that many countries continue routinely to detain asylum-seekers
(including minors) on an arbitrary basis, for unduly prolonged periods, and without giving
them adequate access to UNHCR and to fair procedures for timely review of their detention
status; notes that such detention practices are inconsistent with established human rights
standards and urges States to explore more actively all feasible alternatives to detention;
UNHCR Agenda for Protection, 2002

States more concertedly to explore appropriate alternatives to the detention of asylum-seekers
and refugees, and to abstain, in principle, from detaining children.
63
An adult who is familiar with the child’s language and culture may also alleviate the stress and trauma of being
alone in unfamiliar surroundings.

95
5.2 Women

Rule 8. The different categories of prisoners shall be kept in separate institutions or parts of
institutions taking account of their sex, age, criminal record, the legal reason for their
detention and the necessities of their treatment. Thus,
(a) Men and women shall so far as possible be detained in separate institutions; in an
institution which receives both men and women the whole of the premises
allocated to women shall be entirely separate;
Rule 53(1) In an institution for both men and women, the part of the institution set aside for
women shall be under the authority of a responsible woman officer who shall have the
custody of the keys of all that part of the institution.
(2) No male member of the staff shall enter the part of the institution set aside for women
unless accompanied by a woman officer.
(3) Women prisoners shall be attended and supervised only by women officers. This does not,
however, preclude male members of the staff, particularly doctors and teachers, from carrying
out their professional duties in institutions or parts of institutions set aside for women.

Guideline 8: Detention of Women
Women asylum-seekers and adolescent girls, especially those who arrive unaccompanied, are
particularly at risk when compelled to remain in detention centres. As a general rule the
detention of pregnant women in their final months and nursing mothers, both of whom may
have special needs, should be avoided.
Where women asylum-seekers are detained they should be accommodated separately from
male asylum-seekers, unless these are close family relatives. In order to respect cultural
values and improve the physical protection of women in detention centres, the use of female
staff is recommended.
Women asylum-seekers should be granted access to legal and other services without
discrimination as to their gender, and specific services in response to their special needs. In
particular they should have access to gynaecological and obstetrical services.

96
5.3 Other vulnerable categories
5.3.1.1 Other

Paragraph 50 Often elderly people, persons with disabilities, pregnant women and ill people,
including the mentally ill, are detained without any particular regard for their conditions and
specific needs. It was reported that detention has a heavy impact on pregnant women and their
children, as well as the elderly, disabled and mentally ill. Pregnant women, for example, need
to have access to proper nutrition for the well-being of the baby and to medical and support
service that are not available in detention facilities.
Office of the High Commissioner for Human Rights Recommended Principles and
Guidelines on Human Rights and Human Trafficking, E/2002/68/Add.1
20 May 2002
Guideline 2, paragraph 6 Ensuring that trafficked persons are not, in any circumstances, held
in immigration detention or other forms of custody.
Guideline 4, paragraph 5 Ensuring that legislation prevents trafficked persons from being
prosecuted, detained or punished for the illegality of their entry or residence or for the
activities they are involved in as a direct consequence of their situation as trafficked persons.
Guideline 6, paragraph 1 States and, where applicable, intergovernmental and non-

governmental organizations, should consider: 1. Ensuring, in cooperation with non-
governmental organizations, that safe and adequate shelter that meets the needs of trafficked
persons is made available. The provision of such shelter should not be made contingent on the
willingness of the victims to give evidence in criminal proceedings. Trafficked persons should
not be held in immigration detention centres, other detention facilities or vagrant houses.

Guideline 7: Detention of Vulnerable Persons

97
Given the very negative effects of detention on the psychological well being of those detained,
active consideration of possible alternatives should precede any order to detain asylum-
seekers falling within the following vulnerable categories listed:
• Unaccompanied elderly persons.
• Torture or trauma victims.
• Persons with a mental or physical disability.
In the event that individuals falling within these categories are detained, it is advisable that
this should only be on the certification of a qualified medical practitioner that detention will
not adversely affect their health and well being. In addition there must be regular follow up
and support by a relevant skilled professional. They must also have access to services,
hospitalisation, medication counselling etc. should it become necessary.
Guideline 9: Detention of Stateless Persons

Stateless persons, those who are not considered to be nationals by any State under the
operation of its law, are entitled to benefit from the same standards of treatment as those in
detention generally. Being stateless and therefore not having a country to which automatic
claim might be made for the issue of a travel document should not lead to indefinite detention.
Statelessness cannot be a bar to release. The detaining authorities should make every effort to
resolve such cases in a timely manner, including through practical steps to identify and
confirm the individual’s nationality status in order to determine which State they may be
returned to, or through negotiations with the country of habitual residence to arrange for their
re-admission.

98
6. Standards and bodies cited in this guide

• African [Bangul] Charter on Human and Peoples' Rights (African Charter)
• African Commission
• American Convention on Human Rights (American Convention)
• American Declaration of the Rights and Duties of Man (American Declaration)
• Arab Charter on Human Rights (revised) (Arab Charter)
• Basic Principles on the Role of Lawyers
• Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (Body of Principles)
• Committee on Economic, Social and Cultural Rights
• Committee on the Elimination of Racial Discrimination
• Commission on Human Rights
• Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention against Torture)
• Convention on the Rights of the Child
• Convention relating to the Status of Refugees (1951 Geneva Convention relating to
the status of refugees)
• Declaration on the Human Rights of Individuals Who are not Nationals of the
Country in which They Live
• (European) Convention for the Protection of Human Rights and Fundamental
Freedoms (European Convention)
• European Court of Human Rights (European Court)
• Human Rights Committee
• Inter-American Commission on Human Rights (Inter-American Commission)
• International Convention on the Elimination of All Forms of Racial Dis-crimination
(Convention against Racism)
• International Covenant on Civil and Political Rights (ICCPR)
• International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Family (MWC)
• Principles of Medical Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Medical Ethics Principles)
• Protocol No.4 to the Convention for the Protection of Human Rights and
Fundamental Freedoms (Protocol 4 to the European Convention)
• Special Rapporteur on the human rights of migrants
• Special Rapporteur on torture
• Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules)
• Sub-Commission on the Promotion and Protection of Human Rights
• Sub-Commission on the Promotion and Protection of Minorities
• UNHCR Executive Committee

99
• UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the

Detention of Asylum Seekers (UNHCR Revised detention guidelines)
• UN General Assembly
• UN Rules for the Protection of Juveniles Deprived of their Liberty
• UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules)
• Universal Declaration of Human Rights (Universal Declaration)
• Vienna Convention on Consular Relations
• Working Group on Arbitrary Detention

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amnesty international

INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM

1. Human Rights Standards – presumption against detention .....................................12

2. Human Rights Standards – Restrictions on the use of detention .............................21

3. Human Rights Standards – Conditions of detention................................................52

4. Human Rights Standards – General: Non-Discrimination and Proportionality.......82

5. Human Rights Standards – Standards relating to particular groups ........................88

6. Standards and bodies cited in this guide ..................................................................98

AI Index: POL 33/005/2007 Amnesty International

AI Index: POL 33/005/2007 Amnesty International

AI Index: POL 33/005/2007 Amnesty International

Using this guide

1) Presumption against detention; 2) Restraints on the usage of detention; 3) Conditions of

Amnesty International AI Index: POL 33/005/2007

Treaty monitoring bodies

Other (non-treaty) standards

AI Index: POL 33/005/2007 Amnesty International

Interpretations by other intergovernmental bodies, such as the UN Working Group on

National and regional laws and judgments

Amnesty International AI Index: POL 33/005/2007

Amnesty International Policy

AI Policy: Refugees and asylum-seekers

· there should be a presumption against detention provided by law;

AI Index: POL 33/005/2007 Amnesty International

· alternative non-custodial measures, such as reporting requirements, should always

· criteria for detention should be clearly set out on a legal basis;

· the decision to detain should always be based on a detailed and individualized

· each decision to detain should be automatically and regularly reviewed as to its

· there should be a prohibition provided by law on the detention of vulnerable people

· there should be a prohibition on the detention of unaccompanied children provided

Amnesty International AI Index: POL 33/005/2007

AI Index: POL 33/005/2007 Amnesty International

Should government authorities continue to operate a policy of detaining migrants, Amnesty

· detention of migrants should be used only if, in each individual case, it is

· criteria for detention should be clearly set out in law;

· alternative non-custodial measures, such as reporting requirements, should always

· the decision to detain should always be based on a detailed and individualized

· each decision to detain should be automatically and regularly reviewed as to its

Amnesty International AI Index: POL 33/005/2007

· there should be a prohibition on the detention of unaccompanied children provided

· detention of migrants with psychological problems, as well as those belonging to

· detainees should have access to adequate medical and psychological assistance.

AI Index: POL 33/005/2007 Amnesty International

Recent Amnesty International documents

Amnesty International AI Index: POL 33/005/2007

1. Human Rights Standards – presumption

1.1 Right to Liberty

1.1.1 International human rights standards

International Covenant on Civil and Political Rights, 1966

1.1.1.2 Treaty Monitoring Bodies

1.1.1.3 General Assembly resolutions

Universal Declaration of Human Rights, 1948 (Adopted and proclaimed by General

AI Index: POL 33/005/2007 Amnesty International

1.1.2 Regional human rights standards

American Convention on Human Rights, 196914

American Declaration of the Rights and Duties of Man, 1948

Amnesty International AI Index: POL 33/005/2007

European Convention on Human Rights and Fundamental Freedoms, 195015

1.1.3 International refugee and asylum-seeker standards

UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the