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Instrument
Provision
Text
P18
The application of measures alternative to detention must be reviewed by a judicial authority and alternatives to detention must not be considered as alternatives to release.
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The special circumstances and needs of particular asylum-seekers must be taken into account.
II.85(c)
When reviewing the arbitrariness and lawfulness of the detention, the court is empowered:
(c) To consider and make a pronouncement on whether alternatives to detention have been considered, including non custodial alternatives to detention in accordance with the United Nations Standard Minimum Rules for Non custodial Measures (the Tokyo Rules) and the United Nations Rules on the Treatment of Women Prisoners and Non custodial Measures for Women Offenders (the Bangkok Rules).
(c) To consider and make a pronouncement on whether alternatives to detention have been considered, including non custodial alternatives to detention in accordance with the United Nations Standard Minimum Rules for Non custodial Measures (the Tokyo Rules) and the United Nations Rules on the Treatment of Women Prisoners and Non custodial Measures for Women Offenders (the Bangkok Rules).
II.86
When assessing whether the measures taken are in compliance with international standards, the prohibition of particular grounds of detention or forms of detention are to be complied with, and the needs of specific persons affected and any vulnerability are to be taken into consideration, given that the arbitrariness and unlawfulness of detention may include the unsuitability of detention for the persons in question.
II.111
Decisions regarding the detention of non-nationals are to take into account also the effect of the detention on the physical and mental health of the said persons. When physical and mental security cannot be guaranteed in detention, authorities should provide alternatives to detention.
II.114
Unaccompanied children who are non-nationals shall be informed about their legal status to ensure that they fully understand their situation. Public defence services and/or guardians made available to children are to be adequately trained to work with children, particularly taking into account the extreme vulnerability and need for care, and are to speak a language they understand. Children who are non-nationals should not be placed in detention centres or shelters for migrants, but in non-custodial community-based alternatives to detention, where they may receive all services necessary for their protection, such as adequate nutrition, access to quality education and leisure, care, physical and psychological medical care and security. Special attention should be given to family reunification.
O13.29(f)
We commit to ensure that any detention in the context of international migration follows due process, is non-arbitrary, based on law, necessity, proportionality, and individual assessments, is carried out by authorized officials, and for the shortest possible period of time, irrespective of whether detention occurs at the moment of entry, in transit, or proceedings of return, and regardless of the type of place where the detention occurs. We further commit to prioritize non-custodial alternatives to detention that are in line with international law, and to take a human rights-based approach to any detention of migrants, using detention as a measure of last resort only.
To realize this commitment, we will draw from the following actions:
(f) Reduce the negative and potentially lasting effects of detention on migrants by guaranteeing due process and proportionality, that it is for the shortest period of time, that it safeguards physical and mental integrity, and that, at a minimum, access to food, basic health care, legal orientation and assistance, information and communication as well as adequate accommodation is granted, in accordance with international human rights law.
To realize this commitment, we will draw from the following actions:
(f) Reduce the negative and potentially lasting effects of detention on migrants by guaranteeing due process and proportionality, that it is for the shortest period of time, that it safeguards physical and mental integrity, and that, at a minimum, access to food, basic health care, legal orientation and assistance, information and communication as well as adequate accommodation is granted, in accordance with international human rights law.
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In particular, the best interests of the child should be ensured explicitly through individual procedures as an integral part of any administrative or judicial decision concerning the entry, residence or return of a child, placement or care of a child, or the detention or expulsion of a parent associated with his or her own migration status.
32(f)
The Committees stress that States parties should:
(f) Conduct a best-interests assessment on a case-by-case basis in order to decide, if needed, and in accordance with the Guidelines for the Alternative Care of Children, the type of accommodation that would be most appropriate for an unaccompanied or separated child, or children with parents. In that process, community-based care solutions should be prioritized. Any measure that constrains children’s liberty in order to protect them, e.g. placement in secure accommodation, should be implemented within the child protection system with the same standards and safeguards; be strictly necessary, legitimate and proportionate to the aim of protecting the individual child from harming him or herself or others; be part of a holistic care plan; and be disconnected from migration-enforcement policies, practices and authorities.
(f) Conduct a best-interests assessment on a case-by-case basis in order to decide, if needed, and in accordance with the Guidelines for the Alternative Care of Children, the type of accommodation that would be most appropriate for an unaccompanied or separated child, or children with parents. In that process, community-based care solutions should be prioritized. Any measure that constrains children’s liberty in order to protect them, e.g. placement in secure accommodation, should be implemented within the child protection system with the same standards and safeguards; be strictly necessary, legitimate and proportionate to the aim of protecting the individual child from harming him or herself or others; be part of a holistic care plan; and be disconnected from migration-enforcement policies, practices and authorities.