Possible Additional Follow up Strategies

In addition to the monitoring process, bodies could consider developing additional follow up strategies, such as those suggested below.

Review of legislation and/or administrative instructions or rules In some countries, follow-up involvement of visiting bodies may extend to taking part in revising national legislation and/or administrative in-structions or rules, such as immigration or asylum laws. UNHCR and some NHRIs (including human rights commissions and Ombudsman

Offices), for example, engage with government at this level. Under the OPCAT, the power of NPMs to ‘submit proposals and observations con-cerning existing or draft legislation’ is described as a ‘minimum power.’⁵⁶ Individual interventions and referrals

In cases where there is an imminent risk of deportation or removal that may result in refoulement or other violations of international law, individual interventions by the visiting body may be necessary.

Likewise, imminent risk of torture or other ill-treatment may trigger the need for an individual intervention. Although such issues arise as part of the broader monitoring and reporting function of the visiting body, such risks are highly likely to trigger the need for interventions beyond the more ‘traditional’ monitoring and reporting function.

Whatever their capacity to make individual interventions, all visiting bod-ies need to develop an effective policy and system for making referrals.

BOX 3.20 EVALUATION OF A MONITORING VISIT

• What have we done?

• What have we achieved?

• How well have we done it?

• What difference have we made?

• How do we know?

In turn, this ought to provide answers to the following questions:

• What do we know now that we did not know before?

• Are there any gaps or deficiencies in our monitoring process?

• Were there any missed opportunities?

• What could we do better?

• How would it make a difference?

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Advocacy

Depending on the scope of the visiting body’s authorization to visit places of detention for the purposes of monitoring, it may be both necessary and appropriate to develop advocacy strategies in parallel to the monitoring function. Advocacy strategies need to be designed to complement the monitoring function; that is, to give voice to the visiting body’s findings with a view to achieving the necessary protections and the implementation of the recommendations.

Advocacy may take place through the strategic use of public action initiatives, civil society forums and networks (e.g. the IDC), UN and/or regional forums (e.g. the Working Group on Arbitrary Detention, the UN Human Rights Council, and other human rights mechanisms).

The media

Authorities are usually highly sensitive to media coverage. It is advised that visiting bodies use the media cautiously and strategically and speak only within their area of competence and responsibility. Facts must be clear and accurate, and distinctions need to be made between reports and allegations on the one hand, and findings on the other.

Commentary ought to be carefully analysed, focused, balanced and defensible. It is recommended that visiting bodies develop guidelines regarding contact with the media.

UN human rights bodies and mechanisms

In some cases it may be appropriate to engage international human rights bodies and mechanisms.⁵⁷ For example, in a country which has recognized the competence of a UN human rights treaty body to receive and consider individual communications,⁵⁸ an individual complaints procedure may be initiated. This is a complex process which requires the exhaustion of all available domestic remedies, and issues can take many years to resolve. However, there is a growing body of international and regional jurisprudence that relates to immigration

detention.⁵⁹ In the context of immigration detention, interim measures have been particularly important in situations where deportation or removal is imminent and refoulement may be the consequence. In addition to individual communication procedures, visiting bodies may consider it appropriate to share their findings through the Universal Periodic Review process conducted by the UN Human Rights Council or through the periodic reporting procedure to the UN treaty bodies, which monitor the implementation of human rights treaties by States Parties. Visiting bodies may also elect to share information with the UN special procedures, such as the thematically mandated SRs on Torture and on HRM, or special procedures with country-specific mandates.

Litigation

Some domestic visiting bodies, in particular national human rights institutions, have quasi-judicial and sometimes even judicial powers.

They may be able to receive and investigate complaints, order or recommend the release of detainees whose detention is arbitrary or unlawful and/or order or recommend the payment of compensation. In other cases, the visiting body may be in possession of information that provides grounds to commence a legal proceeding, or that might be critical to its success. In these situations, referral and collaboration with lawyers would be an appropriate step to take, especially if the visiting body encounters resistance to implementation of its recommendations.

Interventions before courts by organizations and entities such as UNHCR and NHRIs are an important tool through which protection standards can be developed and a consistent application of international refugee and human rights law fostered.

Capacity building and training

Monitoring bodies may also consider promoting and contributing to training of staff involved in immigration detention in order to increase knowledge and skills and positively affect attitudes and behaviour.

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4 WHAT ASPECTS OF

IMMIGRATION DETENTION TO EXAMINE

Section 4 can be read as a stand-alone section. Drawing on the main international and regional standards relating to immigration detention, the section proposes benchmarks, practical considerations and general guidance on specific aspects of immigration detention that can be examined as part of a monitoring visit. It enables easy reference to the relevant international standards set against the issues that typically arise in the immigration detention context.

The sources refer to universal and regional human rights and refugee law⁶⁰ treaties and soft law instruments. The list is non-exhaustive but the most relevant and specific provisions have been selected. The general human rights standards such as non-discrimination, the prohibition on arbitrary detention, and the humane and dignified treatment of persons in detention apply throughout but are not separately listed.

4.1 DETENTION AND IMMIGRATION PROCEDURES

The aim of this section is to examine the way in which people are received into the immigration detention environment and how they are provided with information and access to the procedures necessary to respond to the circumstances which gave rise to their detention. These are the critical first steps in a person’s experience of becoming an immigration detainee, and will dramatically affect the way in which s/he experiences immigration detention, whether in the short or long term.

4.1 Detention and Immigration Procedures

4.1.1 Detention Procedures and Access