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.
Key Words Archives: Access to court
The UN Human Rights Committee recalled that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State Party can provide appropriate justification. Furthermore, judicial review of the lawfulness of detention under article 9, paragraph 4, of the International Covenant on Civil and Political Rights (ICCPR) is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.
The European Court found that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained.
This study from the Council of Europe Parliamentary Assembly (PACE) provides an overview of issues relating to immigration detention practices, and promotes the use of alternatives to immigration detention of children (ATDs). The study argues that the main idea behind ATDs is identifying options which provide state authorities with a degree of control over asylum seekers while allowing for a basic freedom of movement. ATDs need to be regulated in order to avoid the arbitrary imposition of restrictions on liberty or freedom of movement and, even when alternatives apply, access to legal aid should be given to migrants, especially to children.
“This General comment replaces General comment No. 10 (2007) on children’s rights in juvenile justice. The scope of the comment is focused on children alleged as, accused of or recognized as having infringed criminal law.