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Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

1. States Parties shall ensure that persons with disabilities, on an equal basis with others:

(a) Enjoy the right to liberty and security of person;

(b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.

2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.

The deprivation of liberty of an asylum-seeking, refugee, stateless or migrant child, including unaccompanied or separated children, is prohibited.

Any form of detention, including detention in the course of migration proceedings, must be ordered and approved by a judge or other judicial authority. Anyone detained in the course of migration proceedings must be brought promptly before a judicial authority, before which they should have access to automatic, regular periodic reviews of their detention to ensure that it remains necessary, proportional, lawful and non-arbitrary. This does not exclude their right to bring proceedings before a court to challenge the lawfulness or arbitrariness of their detention.

Detention in the course of migration proceedings must be justified as reasonable, necessary and proportionate in the light of the circumstances specific to the individual case. Such detention is permissible only for the shortest period of time, it must not be punitive in nature and must be periodically reviewed as it extends in time.

Detention in the course of migration proceedings must be prescribed by law, justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time. These cumulative elements must be complied with in each individual case.

Detaining children because of their parents’ migration status will always violate the principle of the best interests of the child and constitutes a violation of the rights of the child. Children must not be separated from their parents and/or legal guardians. The detention of children whose parents are detained should not be justified on the basis of maintaining the family unit, and alternatives to detention must be applied to the entire family instead.

Detention of migrants in other situations of vulnerability or at risk, such as pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, lesbian, gay, bisexual, transgender and intersex persons, or survivors of trafficking, torture and/or other serious violent crimes, must not take place.

Asylum-seekers with disabilities must enjoy the rights included in these Guidelines without discrimination. This may require States to make 'reasonable accommodations' or changes to detention policy and practices to match their specific requirements and needs. A swift and systematic identification and registration of such persons is needed to avoid arbitrary detention; and any alternative arrangements may need to be tailored to their specific needs, such as telephone reporting for persons with physical constraints. As a general rule, asylum-seekers with long-term physical, mental, intellectual and sensory impairments should not be detained. In addition, immigration proceedings need to be accessible to persons with disabilities, including where this is needed to facilitate their rights to freedom of movement.

The Executive Committee

(c) Recommends that States, UNHCR and relevant partners ensure where appropriate a swift and systematic identification and registration of refugees and other persons with disabilities, with particular attention to those who cannot communicate their own needs, in order to identify their protection and assistance needs, including as part of a global needs assessment;

(f) Encourages States, UNHCR and all partners to communicate information, procedures, decisions and policies appropriately to ensure that these are accessible and understood by refugees and other persons with disabilities;

(h) Encourages States, UNHCR and relevant partners to adopt and implement appropriate and reasonable accessibility standards, including at the start of an emergency, and to ensure that all mainstream services and programmes as well as specialized services are accessible to persons with disabilities, including those services and programmes provided within the framework of international cooperation;

(j) Recommends that States and UNHCR, as applicable, ensure that refugee status determination and all other relevant procedures are accessible and designed to enable persons with disabilities to fully and fairly represent their claims with the necessary support;

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.

In support of concerned countries, States and relevant stakeholders will contribute resources and expertise for the establishment of mechanisms for identification, screening and referral of those with specific needs to appropriate and accessible processes and procedures. Multi-stakeholder response teams could be established to facilitate this operationally. This will include the identification and referral of children, including unaccompanied and separated children, to best interests assessment and/or determination, together with appropriate care arrangements or other services. Identification and referral of victims of trafficking in persons and other forms of exploitation to appropriate processes and procedures, including for identification of international protection needs or victim support, is key; as is identification and referral of stateless persons and those at risk of statelessness, including to statelessness determination procedures. The development of noncustodial and community-based alternatives to detention, particularly for children, will also be supported.

Address and reduce vulnerabilities in migration.

Use migration detention only as a measure of last resort and work towards alternatives.

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. Asylum seekers who unlawfully enter a State party’s territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the individual, such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security. The decision must consider relevant factors case by case and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. Decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health. Any necessary detention should take place in appropriate, sanitary, non-punitive facilities and should not take place in prisons. The inability of a State party to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention. Children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors.