Derechos de particular importancia en el contexto de la migración

The State’s obligation to prevent the deprivation of the right to life and to protect this right have also substantial consequences for the use of force for law enforcement purposes, including in border and migration control, both by State agents as well as private entities and individuals acting on behalf of the State. The use of:

This also means that any act in a law enforcement process that results in the loss of life of a migrant, including acts to prevent irregular entry into the territory, needs to be investigated by the State of jurisdiction and prosecuted if found arbitrary. In failing to do so, States might become responsible under international law.

Obligation to protect the right to life

Under international law, States have an obligation to protect the right to life. In migration governance this is often linked with States’ interventions to save the lives of migrants at risk.

Forced labour

Forced labour is distinguished in law from slavery and slavery-like practices. However, it has practically the same impact on the person, in terms of their dignity, rights and wellbeing, for example.

Under the ILO Forced Labour Convention (C029), States parties have a responsibility to “suppress the use of forced or compulsory labour within the shortest possible time.” This convention was supplemented by the ILO Abolition of Forced Labour Convention (1957 [C105]), which abolishes forced labour for political purposes, for purposes of economic development, as a means of labour discipline or punishment for strike action, and as a means of discrimination.

Trafficking in persons

Today, the international community continues its fight against exploitation, going beyond prohibition of slavery, slavery-like practices and forced/compulsory labour. Except for a few definitions on the exploitation of children in the Convention on the Rights of the Child (CRC), international law does not provide for an exact definition of exploitation. However, under the Palermo Protocol, States are obligated to criminalize trafficking in persons, which must be committed “ for the purpose of exploitation”.

Trafficking in persons is often referred to as “modern slavery” and is criminalized in most national legislations. Slavery, slavery-like practices and forced labour are specifically included in the definition of exploitation as given in the Palermo Protocol, together with prostitution, sexual exploitation, and the removal of organs. However, the list is left open so that other forms and circumstances of exploitation can also be covered by national legislation (see more on the definition and Trafficking in persons in the context of migration in the Introduction to Trafficking in persons and associated forms of exploitation and abuse).

The Trafficking Protocol also recognizes the need for victims’ protection and assistance, although this is conditional upon States’ resources and capacities. At regional and national levels, legal instruments further define specific State obligations for victims’ protection and assistance. (For more information, see Protecting migrant victims of trafficking in persons)

States’ obligations to protect against torture, cruel, inhuman and degrading treatment or punishment are very important to migrants, both regarding immigration detention and return.

The principle of non-refoulement constitutes customary international law (UNHCR, 2007).

Under refugee law, the principle has been defined in several international refugee instruments, both at the universal and regional levels (read more on Refugee law in Branches of international migration law).

Under international human rights law, the principle of non-refoulement extends beyond refugee protection to cover everyone without discrimination, also irrespective of criminal history or security considerations. The principle extends to situations where there are substantial grounds for believing that there is a real risk of irreparable harm to the right to life, the right not to suffer from torture or the right to liberty (that is, certain serious human rights violations) in the event of return. States have adopted different forms of legal protection (usually temporarily) for migrants who cannot be returned by application of the principle of non-refoulement, such as migrants in vulnerable situations that do not qualify for international refugee protection under the 1951 Convention, like unaccompanied and separated children and severely sick migrants.

The principle of non-refoulement is not referred to using that exact term in the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR) or the African Charter on Human and Peoples’ Rights. However, it is derived from specific provisions of these treaties.

The Human Rights Committee on Civil and Political Rights has concluded that States parties to the ICCPR:

According to the Human Rights Committee, the State should not return the individual only if the risk of torture and ill-treatment is real and a consequence of the return. The mere anguish of leaving a State of long-term residence is insufficient on its own to constitute ill-treatment (Human Rights Committee, Canepa v. Canada, 1997a).

The Convention Against Torture (CAT) also addresses non-refoulement. CAT protects the person against return only when there is a “foreseeable, real and personal risk of torture” (CAT, S.P.A v. Canada, 2005), and not for other forms of ill-treatment.

Regional and international human rights mechanisms have also addressed the prohibition of non-refoulement. These mechanisms have interpreted severe violations of economic, social and cultural rights as severe violations of the right to life or freedom from torture or other cruel, inhuman or degrading treatment or punishment, and therefore as grounds for non-refoulement. For example, degrading living conditions or lack of medical treatment in the country to which a person might be returned, or a person’s mental illness have been found to be reasons preventing return (see, respectively, ECtHR, M.S.S. v. Belgium and Greece, 2011; Human Rights Committee, C. v. Australia, 2002; Human Rights Committee, A.H.G v. Canada, 2011). The principles and protection provided by non-refoulement discussed above also apply to migrant children as well. However, the Convention on the Rights of the Child (CRC) provides further protection to children in the context of return based on the principle of “the best interests of the child” (for more, see Overview of the fundamental rights of migrant children).

According to the Human Rights Committee, the notion of lawfulness requires that detention be based on “grounds and in accordance with a procedure” laid down in national law. This has been interpreted as a requirement that the reasons for detention and the procedures for carrying out such detention should be “clearly defined and exhaustively enumerated in legislation”. As well, such procedures should be precise enough that they avoid any overly broad or arbitrary interpretation or application.

The notion of “arbitrariness,” is also broadly interpreted to include elements of inappropriateness, injustice and lack of predictability. A procedure that is found to be inappropriate, unjust, or unpredictable can be considered arbitrary. This means that being held in custody after lawful arrest must not only be lawful, but it must also be reasonable in all the circumstances. Furthermore, it must be necessary in all circumstances, such as to prevent flight or interference with evidence. The element of proportionality is also relevant in this context – the punishment should be in proportion to the severity of the crime (Human Rights Committee, General Comment No. 35, 2014).

In the context of migration, international law is evolving towards the non-criminalization of irregular migration, and away from the detention of irregular migrants, even though many States still respond to irregular migration with detention. There is growing concern that in some countries there is reliance on criminal law to enforce immigration statutes, which is contrary to international law standards, as it also often leads to arbitrary detention. Irregular migrants must not be qualified or treated as criminals, as set out notably in the Protocol against the Smuggling of Migrants. Indeed, international human rights bodies consider the criminal detention of migrants to be disproportionate (CMW, General Comment No. 2, 2013). In 2008, the Working Group on Arbitrary Detention (WGAD) concluded that “criminalizing illegal entry into a country exceeds the legitimate interest of States to control and regulate illegal immigration and leads to unnecessary detention” (United Nations Working Group of Arbitrary Detention [WGAD], 2008). In its 2010 Annual Report and the 2018 Revised Deliberation No. 5 on Deprivation of Liberty of Migrants, the WGAD has also concluded that:

• “[I]mmigration detention should gradually be abolished” (2010).
• “[M]igration detention policies and procedures must not be discriminatory or make distinctions based on the legal conditions of the person. Detaining someone solely on the basis of a distinction such as race, colour, sex, language, religion, political or other opinion, national or social origin, economic position, birth, nationality or any other status will always be arbitrary” (2018).

In fact, the Global Compact for Migration is an opportunity, for those States that accepted it, to reduce irregular migration. In the Compact, States commit to creating more safe, orderly and regular migration pathways, to using immigration detention only as a measure of last resort, and to work towards alternatives (as a first resort) in objective 13 of the Global Compact for Migration.

The Human Rights Committee concluded that administrative detention for immigration control purposes, on the other hand, is not necessarily a violation of article 9 of the ICCPR. This is because it:

(See further details on Administrative detention and other measures of immigration enforcement).

According to the Human Rights Committee, any use of immigration detention must be an exceptional measure of last resort, subject to the principles of lawfulness, reasonableness, necessity and proportionality based on an individual assessment in each case. Such assessment should include due consideration for the effects that detention may have on the mental and physical health of the individual. In Revised Deliberation No. 5 on deprivation of liberty of migrants, the WGAD (2018) concluded that alternative and non-custodial measures, such as reporting requirements, should always be considered before resorting to detention. This is also reflected in objective 13 of the Global Compact for Migration.

In the case of refugees:

The Human Rights Committee reiterated States’ obligation to consider alternatives to immigration detention. In its jurisprudence, the Human Rights Committee has found States in violation of article 9 of the ICCPR when failing to demonstrate that less invasive means could have served the same purpose. The WGAD also considered that, in the removal context, when “the chances of removal within a reasonable [amount of time] … are remote, the Government’s obligation to seek for alternatives to detention becomes all the more pressing” (WGAD, 2008: para. 25).

While international law permits some limitations to the right to liberty, the prohibition of arbitrary deprivation of liberty is absolute. Arbitrary detention can never be justified, even during a national emergency, to maintain public security or for health reasons. The absolute prohibition of arbitrary deprivation of liberty must be respected as public health emergency measures are introduced to combat the pandemic. In particular, when there is no prospect of return, a person in migration detention for the purpose of enforcing return must be released immediately. Otherwise, it amounts to arbitrary detention.

Detention has many negative impacts on the health and development of children, including risks of violence and ill-treatment, self-harm and even suicide [International Detention Coalition (IDC), 2017]. In 2017, the Committee on the Rights of the Child and the Committee on Migrant Workers concluded in their Joint General Comments that immigration detention of children conflicts with children’s right to development and the principle of the best interests of the child (read more on the Best interests of the child, as well as the case of Separated and unaccompanied children). The committees echoed their past statements, noting that irregular entry or stay cannot, under any circumstances, have consequences like those that result from committing a crime. They concluded that the possibility of detaining children as a measure of last resort is not applicable in immigration proceedings, based on article 37 (b) of the Convention on the Rights of the Child (CRC), which may apply in contexts such as juvenile criminal justice.

The Committee on the Rights of the Child found that the detention of children based on either their or their parents’ migration status is never in the best interests of the child and constitutes a clear child rights violation. Immigration detention – even for relatively limited duration or in contexts that are relatively “child friendly” – is never an appropriate place for children (United Nations Committee on the Rights of the Child [CRC], 2012).

When the child’s best interests require keeping the family together, the requirement to not deprive the child of  liberty extends to the child’s parents and guardians. In such cases, non-custodial solutions must be found for the entire family (Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2015). (Read more on negative impacts of detention on families in Separation of families.)

See the Key Human Rights Instruments Job Aid for a list of the relevant instruments and respective articles.

The right to access to justice does not require merely putting in place a system that secures access to justice. Instead, each individual should be enabled to practically access such a system, without discrimination and with consideration of the potential barriers the individual may face. Access to justice is ultimately achieved when the decision made by the relevant justice institutions is enforced and implemented.

The right to access to justice is at the heart of effective protection of human dignity. It is critical in addressing impunity, providing remedies, and ensuring the rule of law. Nevertheless, there is an alarming gap between the rights that migrants hold by virtue of law, including the right to access to justice, and the implementation of those rights.

Access to justice is guaranteed by various international and regional legal instruments. For instance, article 2 of the International Covenant on Civil and Political Rights (ICCPR) refers to the right to an effective remedy for all the rights in the Covenant, and for all individuals including “migrant workers … and other persons who may find themselves in the territory or subject to the jurisdiction of the State Party” (HRC, General Comment No. 30, 2002).

The core elements of the right to access to justice are:

• Recognition as a person before the law;
• Equality before courts, tribunals and other dispute-settlement mechanisms;
• Due process guarantees;
• The right to an effective remedy.

Effective access to justice means access to every stage of the “justice chain”, from seeking information and having access to a court of law, to obtaining a decision and to the enforcement of adequate remedies. For migrants, access to justice is important throughout the entire migration path.

Entry into the country

Access to justice is important for decisions about the entry of migrants into a State. States are encouraged to establish mechanisms to allow adequate time to assess the individual situation of all migrants, without discrimination, and with competent legal advice, representation, support, and access to all documents related to the case, including in order to properly identify individual protection needs and status and to arrange appropriate referral (Office of United Nations High Commissioner for Human Rights [OHCHR], 2014). In this context, it is important to remember that everyone has a right to seek asylum and that the prohibition of refoulement is absolute. Therefore, everyone must be allowed to exercise that right, even following irregular entry into a country. As well, victims of trafficking in persons or smuggling should not be penalized or criminalized for irregular entry either, as established under the Palermo protocols.

In this context, the right to access to justice is also relevant. As per a comprehensive analysis on migrants’ access to justice, Article 13 of the European Convention on Human Rights (ECHR) establishes that “all those whose access to the territory or to procedures arguably engages rights guaranteed under human rights instruments, must have access to an effective remedy before a national authority” (IOM, 2019).

The same applies to decisions regarding return. The right of the migrant to challenge the return decision is recognized in international, regional and national laws. For migrants in immigration detention, access to justice, which is a human right, is often the path to liberty and to remedy rights violations.

Stay

While in the country, migrants might need to access justice for civil, labour and family law issues as well as when they become victims of crime and other violations. In all these cases, they should have access to non-discriminatory procedures, information on the mechanisms available and procedures required, and might also need linguistic support, legal advice and representation, including for free, and on equal grounds with citizens. Also, consular protection and assistance from the country of origin can support migrants to access justice abroad.

Some categories of migrants might find it more difficult to access justice for several reasons.

Under the Global Compact for Migration, States recognize the importance of access to justice for migrants, not only as a right in itself, but also as a tool to access other rights. The signatory States committed to:

See the Key Human Rights Instruments Job Aid for a list of the relevant instruments and respective articles.

The Human Rights Committee on Civil and Political Rights has clarified that the term “family”, for the purposes of the International Covenant on Civil and Political Rights (ICCPR):

Regional human rights instruments and related mechanisms – especially the European Court of Human Rights (ECtHR) – have rich jurisprudence on what is family life. (For more information on the composition of family, see the Importance of managing family migration. See more on relevant Regional instruments under International law and principles)

The right to respect for family life is a consideration in decisions of admission and expulsion of family members.

Family life and entry of family members

The right to respect for family life is relevant to the entry of migrants. People often seek to enter a country to join a family member already residing in that country. Different instruments set States parties’ obligations to allow entry when family life is established.

The right to family life does not necessarily oblige a State to respect the choice of matrimonial residence, or to authorize family reunion in its territory. In the European context, according to the ECtHR, the European Convention on Human Rights (ECHR) requires the State to properly balance the individual’s interests and its own to control migration. Applying conditions for family reunification – including sufficient regular incomes, housing conditions and so on – has been found not to violate the right to respect private and family life, so long as those conditions are not too restrictive.

Family life and return

The right to respect for private and family life is also relevant in the context of expulsion. Expulsion decisions may well interfere with the right to family life. This does not necessarily mean, however, that such decisions constitute a breach of international and regional law in regard to respect for family and private life. Only unlawful and arbitrary interferences with family life are prohibited, paying attention to the legal ground and the legitimacy of the measure, including necessity and proportionality. Thus, a correct balancing of interests is required in the context of expulsion just as it is in the context of entry. A balance is needed between, on one side:

When the person facing expulsion has committed a criminal offence and thereby constitutes a threat to national order, regional instruments provide some guidance for action (see Family and migration for further information).

The last provision might expose migrants to the risk of statelessness, especially when they are not entitled to or have not been granted the nationality of their country of residence. However, the number of States applying these criteria is substantially decreasing (Secretary-General of the United Nations, 2013; Manby, 2016).

Nevertheless, the 1961 Convention on the Reduction of Statelessness establishes, under article 8, that States shall not deprive a person of that person’s nationality if such deprivation would render that person stateless. And under article 9, States may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.

States are also increasingly allowing dual nationality as a tool to facilitate migrants’ contribution to development in both the country of origin and the country of destination. Increases in mobility, marriages between persons of different nationalities, the ability of children to acquire nationality from both parents, the development of new norms and human rights standards, and changing policies have all contributed to the increasing number of people with dual and sometimes multiple citizenship (Gilbertson, 2006).

Under the Convention on the Reduction of Statelessness, States parties have undertaken important commitments to address statelessness. One of them regards granting citizenship to children born to their nationals abroad, without any hindrances linked to the parents’ gender or any other circumstance, as well as to children born on their territory who would otherwise be stateless (further details on the Right to birth registration and documentation in International law and principles in Child migration). By 2019, even though most States allow nationality to be passed from parent to child, regardless of the place or other circumstances of the birth of that child, there are still a few States that restrict the right of women to pass their nationality to their children on equal terms with men (UNHCR, 2018). In this case, in order to reduce and prevent statelessness while upholding non-discrimination and equality before the law based on gender, laws that deny women the right to pass their nationality to their children on an equal basis with men should be amended to allow mothers the same right as fathers to pass their nationality to their children.

Statelessness exposes a person to various risks of human rights abuses and discrimination:

• Statelessness is often a trigger for forced migration.
• When stateless people migrate, they often do so irregularly as they lack any required documentation. They are thus exposed to further risks, including unlawful prolonged migration detention and other violations of their human rights. While they could be obligated to leave the country of irregular residence, other States might also not recognize them as nationals and refuse access to their territory.
• Stateless migrants are also deprived of any consular and diplomatic protection.
• Children born to parents residing irregularly in a country might not be registered, which, in the long run, increases the risk of statelessness as such children find it increasingly difficult to prove their identity and their link with the State of nationality.

Moreover, the Committee on Economic Social and Cultural Rights (CESCR) has concluded that the right to water is also a human right, related to the standard of living (CESCR, General Comment No. 6, 1995; CESCR, General Comment No. 15 referring to article 11, 2003). Through its various general comments, the CESCR has clarified the character of States’ obligations under article 11 of the ICESR (see, in particular, CESCR, General Comment No. 12, 1999a):

• Immediate obligations: the right to food, water, clothing and housing.
• Obligations of progressive realization: the right to food, water, clothing and housing, and the right to continuous improvement of living conditions.

States have a direct obligation to ensure access to food and water to migrants, regardless of their status (CESCR, General Comment No. 12, 1999a). Moreover, both the Human Rights Committee and the European Court of Human Rights (ECtHR) have concluded that violations of economic, social and cultural rights (including, for example, when migrants become homeless and destitute) could lead to violations of the prohibition of torture and other inhuman and degrading treatment or punishment. As such, States are obliged to refrain from returning migrants to a country where they would be at risk of such violations (see, for example, Human Rights Committee, Warda Osman Jasin v Denmark, 2015 and ECtHR, M.S.S. v Belgium and Greece, 2011).

The Committee on the Elimination of Racial Discrimination (CERD, 2004) and CESCR (2016), as well as ICRMW (article 3), all address non-discrimination regarding access to adequate housing. As described in these instruments, access to adequate housing includes:

• Access to housing and social schemes;
• Protection from exploitation with respect to rents;
• Protection from discriminatory practices from housing agencies;
• Non-segregation.

Human rights bodies at both international and regional levels have paid particular attention to States’ obligations with regard to adequate housing for irregular migrants. The Special Rapporteur on Adequate Housing clarified that “the provision of housing should not be denied to undocumented migrants” (2010: para. 93). The Special Rapporteur on the Human Rights of Migrants has also called upon States to:

The European Committee on Social Rights (ECSR) has taken a similar approach, ruling that the right to shelter is to be granted to all migrants, regardless of their status.

Despite these statements and rulings, some national legislation around the world criminalize renting to irregular migrants who might even be denied access to centres for the homeless and destitute. Even when irregular migrants are admitted, rules that oblige shelters to report them to the authorities may in practice prevent migrants from using such shelters (European Agency for Fundamental Rights [FRA], 2011: 8).

In its General Comment No. 14, the CESCR clarified States’ legal obligations to refrain from denying or limiting equal access to preventive, curative, and palliative health-care services to migrants in an irregular situation. This means States are obliged to provide not just health goods, services and facilities but also the determinants of health listed above. The CESCR established and defined the core criteria of the right to health, indicating that all services, goods, and facilities must be available, accessible, acceptable, and of good quality.

A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels.

States’ obligations include ensuring that all of the above-mentioned elements are available and accessible, as well as guaranteeing that they are of an appropriate quality, as well as ethically and culturally acceptable (further details in International law and principles in Health and migration. See also International law and principles in Child migration for aspects specific to children and the right to health).

The right to social security includes both contributory schemes (that is, schemes consisting of obligatory contributions from members, employers and sometimes States) and non-contributory schemes (that is, schemes which can be universal in character and need based).

According to the CESCR (General Comment No. 19, 2008), the core obligations of States with regard to the right to social security include:

• Ensuring access to a social security scheme that provides a minimum essential level of benefits that will enable people to acquire at least essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education;
• Ensuring the right to access to social security systems or schemes on a non-discriminatory basis;
• Respecting existing social security schemes and protecting them from unreasonable interference;
• Taking targeted steps to implement social security schemes;
• Monitoring the realization of the right to social security.

Though making distinctions, with regard to this right, based on nationality or migration status does not always amount to prohibited discrimination under international law, such distinctions must be prescribed by law, pursue a legitimate aim, and be necessary and proportionate.

According to article 27 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), States should examine the possibility of reimbursing contributions, when the applicable legislation does not allow migrant workers a benefit. The Committee on the Protection of the Rights of All Workers and Members of Their Families (CMW) further finds that in cases of extreme poverty and vulnerability, States parties to the ICRMW should provide emergency social assistance to migrant workers in an irregular situation and to members of their families, including emergency services for persons with disabilities, for as long as they might require it (CMW, General Comment No. 2, 2013).

The CESCR has also elaborated that:

The Inter-American Court of Human Rights (IACtHR) has recognized that a State will violate the human rights of a migrant worker, whether documented or not:

The ECtHR has also considered the right to social security of regular migrant workers under the right to property, concluding that non-recognition of the right to non-contributory social schemes or to emergency assistance based on nationality is a discrimination prohibited under the ECHR (ECtHR, Koua Poirrez v. France, 2003b, and ECtHR, Gaygusuz v. Austria, 1996).