Detention of migrants in an irregular situation 2012, para. 53

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In the Special Rapporteur's view, the obligation to always consider alternatives to detention (non-custodial measures) before resorting to detention should be established by law. Detailed guidelines and proper training should be developed for judges and other State officials, such as police, border and immigration officers, in order to ensure a systematic application of non-custodial measures instead of detention. Non-custodial measures should be subject to legal review, and migrants who are subject to non-custodial measures should have access to legal counsel. When considering alternatives to detention, States must take full account of individual circumstances and those with particular vulnerabilities, including pregnant women, children, victims of trafficking, victims of torture, older persons and persons with disabilities. The least intrusive and restrictive measure possible in the individual case should be applied. Legislation should establish a sliding scale of measures from least to most restrictive, allowing for an analysis of proportionality and necessity for every measure. Some non-custodial measures may be so restrictive, either by themselves or in combination with other measures, that they amount to alternative forms of detention, instead of alternatives to detention. When considering whether the measures applied amount to detention, the cumulative impact of the restrictions as well as the degree and intensity of each of them should also be assessed.
Legal status
Non-negotiated soft law
Body
Special Rapporteur on the human rights of migrants
Document type
Special Procedures' report
Means of adoption
N.A.
Topic(s)
  • Governance & Rule of Law
  • Movement
Person(s) affected
  • Children
  • Older persons
  • Persons on the move
  • Persons with disabilities
  • Women
Year
2012
Paragraph type
Other
Paragraph number
53