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Organisations / Bodies / Institutions Archives: United Nations

General comment No. 5 (2021) of the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) on migrants’ rights to liberty, freedom from arbitrary detention and their connection with other human rights (advanced unedited version)

The UN Committee in its General Comment understands as ‘alternatives to detention’ all community-based care measures or non-custodial accommodation solutions – in law, policy or practice – that are less restrictive than detention and which must be considered in the context of lawful detention decision procedures to ensure that detention is necessary and proportionate in all cases, with the aim of respecting the human rights and avoiding arbitrary detention of migrants, asylum seekers, refugees and stateless persons.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CMW/GEC/9459&Lang=en

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Human Rights Council, Report of the Working Group on Arbitrary Detention (WGAD) of 24 December 2012

The WGAD Report concerns the definition and scope of arbitrary deprivation of liberty under customary international law. The Group found that the prohibition of all forms of arbitrary deprivation of liberty is part of the international jus cogens. Detention of migrants and asylum seekers is recognized as a form of deprivation of liberty and States should ensure the same guarantees available against arbitrary arrest and detention.

https://undocs.org/en/A/HRC/22/44

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General comment No. 35 (2014) of the UN Human Rights Committee (CCPR) on Article 9: Liberty and Security of a person

The UN Human Rights Committee stated that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f35&Lang=en

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UN Human Rights Committee (CCPR), A. v. Australia, Communication 560/1993, Views of 3 April 1997

The UN Human Rights Committee stated that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f59%2fD%2f560%2f1993&Lang=en

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UN Human Rights Committee (CCPR), Samba Jalloh v. Netherlands, Communication 794/1998, Views of 15 April 2002

The UN Human Rights Committee noted that under article 9 of the International Covenant on Civil and Political Rights (ICCPR) ‘arbitrariness’ must be interpreted more broadly than ‘against the law’ to include elements of unreasonableness.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f59%2fD%2f560%2f1993&Lang=en

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