After a five days mission to Greece, the UN Special Rapporteur on the human rights of migrants highlighted the urgency of considering alternatives to detention for all migrants, and especially unaccompanied minors and families with children.
Sources Archives: International law
This Practical Guidance was adopted by the Steering Committee for Human Rights of the Council of Europe at its 91st meeting (18-21 June 2019). Its main focus is on the practical aspects of applying alternatives to detention, considering also the fact that in this field a ‘one size fits all’ approach is not possible. The Guidance covers the legal framework of the alternatives to detention system, the types of alternatives and the ways to make them effective.
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.
The EASO Practical Guide on Age Assessment acknowledges, inter alia, that the benefit of the doubt in age determination procedures is a key principle and safeguard since none of the currently available methods of age assessment can determine a specific age with certainty. So, if after the age assessment remains the doubt that the individual could be a child, they should be treated as such.
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.
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.