Who is this Manual for?

This Manual is for anyone or any institution carrying out immigration detention visits. There are different types of monitoring depending on the mandate and purpose of the monitoring body. Some bodies focus on handling individual cases or applications; others take a more general approach, looking at systemic and structural issues.

In the context of immigration detention, an increasing number of monitor-ing bodies have access to immigration facilities. These include UNHCR it-self, as well as other international, regional and national bodies as follows:

INTERNATIONAL LEVEL

è The UN Subcommittee for the Prevention of Torture (SPT): The UN Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT)⁵ establishes a dual system of preventive visits ‘undertaken by independent international (SPT) and national bodies (NPMs) to places where people are or may be deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.’ The SPT is composed of 25 independent experts and can monitor places of detention, including immigration detention, in any State Party to the OPCAT.

è UNHCR: As part of its supervisory responsibility over state implementation of international instruments relating to asylum-seekers and refugees, and pursuant to its mandate for the

international protection of refugees, UNHCR has a particular role to play in monitoring immigration detention. UNHCR’s 1950 Statute calls on all States to cooperate with the Office in the exercise of its functions, while States Parties to the 1951 Convention relating to the Status of Refugees (CSR) and/or the 1967 Protocol are in fact obliged to cooperate with the Office, including providing UNHCR with access to places of detention as well as to asylum-seekers and refugees in detention.⁶

è Human Rights Council Special Procedures can visit places of immigration detention.⁷ These include the Special Rapporteurs on Torture, on the Human Rights of Migrants, and on Trafficking in Persons, Especially Women and Children, and the Working Group on Arbitrary Detention (WGAD). These mechanisms can only carry out on-site visits with the prior authorization of the State concerned.

1 INTRODUCTION TO THE MANUAL

è The International Committee of the Red Cross (ICRC) has been the leading body monitoring places of detention in the context of armed conflicts, in its role of visiting prisoners of war. Later, the mandate was extended, allowing it to visit detainees, with the agreement of the concerned government, during internal troubles or tensions. This includes places of immigration detention.

REGIONAL LEVEL

è The African Commission including the Special Rapporteurs on Refugees, Asylum-Seekers and Internally Displaced Persons in Africa and on Prisons and Conditions of Detention in Africa;

è The Inter-American Commission on Human Rights including the Rapporteurships on the Rights of Migrants and on the Rights of Persons Deprived of Liberty;

è The European Committee for the Prevention of Torture (CPT) was the first body set up specifically to carry out preventive visits to all places of detention in Member States of the Council of Europe, including immigration detention. The CPT carried out its first visits in 1990.⁸

NATIONAL LEVEL⁹

è National Preventive Mechanisms (NPMs): OPCAT States Parties are obliged to maintain, designate or establish functionally independent and suitably staffed and resourced NPMs for the prevention of torture. States Parties are obliged to grant NPMs access to all places of detention. This necessarily includes places of immigration detention. In these cases, the NPM has a direct mandate to undertake unannounced visits to places of detention and make recommendations regarding the respect of rights of persons deprived of their liberty. The NPMs are expected to become a critical complement in monitoring immigration detention.

Indeed, a significant number of NPMs already perform this role,

in some cases to considerable effect. Under article 19(c) of the OPCAT, NPMs can also ‘submit proposals and observations concerning existing or draft legislation.’

è National Human Rights Institutions (NHRIs) have a broad

mandate to monitor and promote human rights including those that occur in places of detention. They often have active monitoring roles, including in the context of immigration detention. Some have produced a body of invaluable literature and documentation on immigration detention and represent an important resource in the development of any monitoring programme. Many governments have designated an NHRI as NPM under the OPCAT.

è Non-governmental organizations (NGOs) in some countries have authorization to monitor places of detention. Monitoring by civil soci-ety is usually characterized by a large degree of independence of the authorities. Because of their independence, their findings and reports often get a great deal of publicity. However, the legal basis for moni-toring can often be weak, based on an oral or written agreement with the concerned ministries, or even an individual minister. This leaves the monitors dependent on the political will of the authorities. In some countries, lack of funding even for travel costs can make the task of consistent monitoring very challenging for such independent groups.

è Parliamentarians in a large majority of countries have broad powers to visit places where persons, including migrants, are deprived of their liberty.¹⁰ In some countries, this also includes the right to carry out unannounced visits.

None of the existing mechanisms operate in a vacuum and all of them have a specific value added to the complex system of the protection and promotion of human rights. This means that visiting bodies need to look at ways of cooperating and sharing information and, in some cases, reports. Many already coordinate their activities to good effect.

1 INTRODUCTION TO THE MANUAL

BOX 1.2 OBJECTIVES OF THE MANUAL

The specific objectives of the Manual are:

è To provide a practical tool to assist visiting bodies to monitor all aspects of immigration detention;

è To improve the quality, consistency and effectiveness of immigration detention monitoring;

è To provide a framework and benchmarks for monitoring immigration detention conditions that are universally relevant, while encouraging monitors to be mindful of the particularities of the situation they are monitoring;

è To enable visiting bodies to identify persons in immigration detention who are, or may be, entitled to international protection or other means of regularizing their status and to ensure that their particular needs are met;

è To provide guidance for follow up interventions, including the establishment of referral mechanisms to appropriate organizations and service providers;

è To promote cooperative and complementary monitoring practices between different visiting bodies at the national level, as well as between regional and international bodies.