Deportation or removal at the border

The objective of enforcement is to maintain the integrity of a State’s immigration laws. Border officials are tasked with detecting breaches of immigration laws and procedures and with dealing with them appropriately. Border officials use enforcement tools, including deportation or removal, to encourage compliance. At points of entry (POE), border officials are primarily responsible for processing the entry and exit of people and goods, as well as for preventing transnational organized crime such as smuggling of migrants and trafficking in persons, referring those in need of international protection and detecting irregular migration.

In some instances, border officials at POE might encounter migrants who are attempting to enter a country without appropriate documentation. Non-nationals who enter or stay in a country may be undocumented migrants for several reasons: they may lack an identity document that proves their right to enter and stay in another country; their document may be fraudulent; their visa may have expired; they may have breached a condition of the visa. In such cases, a migrant who is found in breach of immigration laws or whose admission into the State is considered contrary to the provisions of relevant acts or regulations, and who has not otherwise demonstrated an entitlement to remain, is liable to be ordered to leave the territory, or be deported or removed.

It is important to note, however, that even when in an irregular situation, migrants are still entitled to the respect, protection and fulfilment of their human rights. Moreover, as per the 1951 Convention, refugees are to be granted access to international protection against being penalized for unauthorized entry or stay if they have travelled from a place where they were at risk. Other categories of migrants, too, such as victims of trafficking in persons, unaccompanied children and other vulnerable groups might be unable to obtain identity documents to support their claims and have other no choice than to use irregular pathways.

Policy Approaches
Removal at the border
  • Enable undocumented migrants legal access to rights and corresponding services according to applicable international and regional instruments, including psychosocial care and identity documents (this contributes to preventing statelessness).
  • Cooperate with countries of origin to ensure that the return of migrants to their own country is safe, dignified and in full compliance with international human rights law, particularly the principle of non-refoulement, in a manner that is gender- and child-sensitive. Ensure also that reintegration programmes upon return are available.
  • Inform the migrant about timing and other procedural matters.
  • Provide quick access to relevant information and refer undocumented migrants to where and how applications for legal advice or international protection may be lodged, particularly for protected persons, victims of trafficking and other vulnerable migrants.
Deportation or removal from within the interior

The previous topic explains removal policies and exclusionary grounds for removal at the border. It concerns those either prevented from entering a certain country at the border or removed having been apprehended at the border. Those policies are different from deportation policies concerning removal of migrants who have already entered and stayed in a country.

A country’s immigration and/or border management agency is usually also tasked with the management of migrants’ compliance with their entitlements and with the conditions of their stay. Multilingual information about visa entitlements and conditions should be provided to migrants at the time of visa issuance as well as upon entry at the border, via online mediums and otherwise. The agency is responsible for enforcing a nation’s immigration laws and ensuring the departure of removable migrants who are not complying with their entitlements and conditions of their stay. Examples of such non-compliance include taking up employment that their visa class does not entitle them to, staying in the country when their visa has expired or been cancelled, and committing crimes.

Access to due process, including the opportunity to appeal a deportation order before a competent authority, should be made available. A stay of the deportation or removal should be provided until the appeal proceeding has been concluded. Immigration officers might want to consider offering the option of voluntary departure to avoid coercive measures and in particular the deprivation of liberty. This reduces the need for detention and facilitates humane and dignified returns (see Voluntary return). Border officials should also be alert to the voluntariness of the person when processing their exit as well as their physical and mental health condition.

Administrative detention
Article / Quotes
immigration detention

A restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority. In many countries, “administrative detention” is part of migration management procedures to ensure that other administrative measures, such as deportation or expulsion, can be implemented. In countries where unauthorized entry is considered a crime, detention can also be used as a criminal sanction.

Source

IOM, 2020.

Although not all national laws provide for migration detention, some States use it in certain situations. In those cases, persons awaiting investigation or awaiting removal after being ordered to be deported may be detained or restricted to a particular place, so long as this detention is ordered in accordance with the law, and where a judicial authority deems such detention to be necessary and proportionate to the risk that the particular individual poses, including due consideration for the effects that such detention may have on the mental and physical health of the individual. This was a major consideration during the COVID-19 pandemic in some places, where migrants under administrative detention were released to avoid an outbreak in the detention centres (Bureau, 2020). Advocates are encouraging this policy change to continue even beyond the pandemic.

Image / Video

Source

IOM/Joe Lowry, 2014.

Many States consider immigration detention to be a necessary migration management tool. International law provides that the grounds for immigration detention must be established in domestic law and set out in national legislation. There must be no automaticity in ordering migration detention prior to a removal from the territory, as detention must always be the last resort after community-based or other alternatives have been duly considered. Non-custodial measures that are in line with international law should be prioritized (see Human rights of migrants: an overview).

Glossary

alternatives to detention

Any legislation, policy or practice, formal or informal, aimed at preventing the unnecessary detention of persons for reasons relating to their migration status.

More in Glossary

Any such detention must be ordered and approved by a judge and must be subject to automatic and regular judicial review in each individual case. In some instances, asylum seekers are detained pending a decision on their asylum application; this practice is generally discouraged under international standards. The migration detention of children is generally never permissible as it is never in their best interest (see Child migration). 

See also Prosecution of perpetrators of Trafficking in persons and Separation of families and forced transnationalism.

Policy Approaches
Migration detention

Alternatives to detention

  • Detention should be a measure of last resort.
  • Alternatives to detention can include open or semi-open service/reception centres, bail, bond and surety options, centres for special support to vulnerable migrants, and community-based alternatives. Alternative and non-custodial measures should be considered first.
  • Placing a person into a type of holding facility should be done ideally only when non-custodial measures are deemed by responsible authorities to be ineffective. It is an administrative measure, not a criminal one.

Procedural safeguards

  • All persons should be informed of the specific reasons for detention (in writing), including the means to seek judicial review and a release if the detention is not lawful.
  • The migrants detained should be entitled to prompt and regular access to lawyers or be assigned legal counsel by a judicial or other authority if they do not have one of their own choice.
  • The maximum period of detention should be established by law, not unlimited or of excessive length.
  • While in administrative detention, migrants should be able to receive information from public sources, to be visited by members of the family and the outside world, and to correspond with them, subject to reasonable conditions and restrictions as specified by law.
  • Detention places should be effectively monitored by independent mechanisms.
  • Migrants are also entitled to make a request or a complaint for treatment they are subjected to while in detention.

Conditions of detention

  • Minimize the negative impact of detention on migrants’ physical and mental wellbeing by improving conditions as required for ensuring a humane living environment, even in privately-run facilities.
  • Secure the health of individuals in detention by providing regular medical care. In the most serious cases relating to health conditions caused by detention, release from detention should be provided.
  • Maintain a general level of cleanliness and personal hygiene through adequate sanitation facilities.
  • Provide appropriate food and sufficient quantities of drinking water, adequate clothing, change of bedding, blankets, toiletries and other necessities. Regular access to open air and recreational activities are also important.
  • If detention is deemed necessary, consider the special needs of potentially vulnerable populations, such as victims of trafficking, children, elderly persons, victims of torture or trauma, persons with disabilities, pregnant women or victims of sexual violence. (More on Criminalizing, investigating and prosecuting trafficking in persons)
 

More information on Detention of migrant children. See also Separation of families.

To Go Further
  • IOM, Immigration Detention and Alternatives to Detention, 2017a. This set of guidelines outlines the fact that accommodation in a detention centre should follow the procedures set out in national legislation and be in accordance with relevant international instruments and international customary law. 
  • IOM, Alternatives to detention in the context of migration (e-learning). This course aims to increase awareness of alternatives to detention (ATDs) in the context of migration. Detention often has harmful and negative impacts on migrants’ health, well-being and may risk violating their human rights by exposing them to inhumane conditions, arbitrary deprivation of liberty, without access to procedural rights and guarantees. Both international community and international law recognizes that ATDs should always be considered before detention, leaving detention as a measure of last resort.  
Key messages
  • Migrants can find themselves undocumented for several reasons, including the lack of identity documents that prove their right to enter and stay in another country, or the fact that such a document is fraudulent or no longer valid due to the expiry of a visa or the breach of an entry condition.
  • A migrant, found in breach of immigration laws or whose admission into the State is considered contrary to the provisions of relevant acts or regulations, and who has not otherwise demonstrated an entitlement to remain, is liable to be ordered to leave the territory, be deported or removed.
  • Persons awaiting investigation or awaiting removal after being ordered to be deported can be detained or restricted to a particular place, if this detention is ordered in accordance with the law, and where a judicial authority deems such detention to be necessary and proportionate to the risk that the particular individual poses.
  • Detention should be a measure of last resort after community-based or other alternatives to detention have been duly considered. The detention must have a legitimate aim, be proportionate to the aim pursued and strike a fair balance between conflicting interests. Non-custodial measures that are in line with international law should be prioritized.
PreviousBorder control on arrival NextIntelligence gathering and the role of technology