A/HRC/45/9
and insufficient imposition of financial penalties by immigration authorities despite
documenting persistent failure to comply with detention standards. Indeed, the authorities
were found to issue waivers from particular detention standards, thereby further
undermining accountability for poor detention conditions and abuses. 51 Despite these
concerning findings, little action appears to have been taken to address the issues raised.
The Working Group received similar accounts from other countries, particularly those in
which companies are heavily involved in immigration detention. While national oversight
mechanisms are a valuable tool for making concrete recommendations to improve the
protection of persons deprived of their liberty, a lack of follow-up to their recommendations
and an absence of enforcement mechanisms undermine their effectiveness.
68.
Legal avenues have provided opportunities for seeking to pursue accountability and
remedies for victims. Companies have been brought to court in relation to abusive labour
practices against detained migrants, notably withholding the meagre wages owed to them
for exploitative tasks such as cleaning of the premises. Some successful legal actions have
required a Government to provide medical care on its territory to detainees held in offshore
detention. Class action lawsuits have been brought against national authorities and
companies with regard to overall detention conditions and access to food, water and health
care, among other things.
69.
Kamasaee v. Commonwealth of Australia and Ors is an emblematic class action suit
brought against the Government of Australia and two companies contracted to run the
offshore immigration detention centre on Manus Island, Papua New Guinea. It was alleged
that the Government of Australia and the two private contractors repeatedly breached a duty
of care owed by them to asylum seekers detained in the centre in relation to, inter alia, the
conditions of detention, access to food and water and to health care, and internal and
external security measures. In 2017, a settlement was reached for the sum of 70 million
Australian dollars plus costs, estimated at 20 million Australian dollars.
70.
Despite this substantial settlement, the case was closed without admission of liability
and with many issues unresolved. While the settlement agreement provided financial
compensation to a number of those who had been detained on Manus Island, it did not
address the underlying need to end their detention, ensure their protection after the
detention centre was closed, and provide for their resettlement. In addition, details of the
settlement were not made public, and it remains unknown who paid for the settlement,
leaving open the possibility that the two private contractors may have escaped financial
liability.52
71.
Another emblematic case was the death of Jimmy Mubenga during the course of his
forced deportation from the United Kingdom to Angola, raised in a communication by the
Working Group. 53 He died in 2010 after being forcibly restrained by private security
personnel of G4S contracted by the Government of the United Kingdom to escort his
deportation. The three security guards underwent trial for manslaughter and were all
acquitted in 2014. Ten years later, there has been no accountability for his death.
72.
Ultimately, these and other similar cases have yet to result in legal judgments that
address systemic issues and challenge the current model of Governments outsourcing
immigration and border management functions to private commercial actors, and the
flagrant lack of accountability for human rights abuses committed by companies and their
personnel in this domain.
73.
Other strategies that have also been pursued have included local legislative reform.
In one country, there have been significant, if piecemeal, legislative advances made when
local authorities introduced legislation banning new contracts and contract renewals with
companies in immigration detention and phased out existing contracts within a deadline of
several years. There have been reports, however, of companies suing the local authorities in
an attempt to repeal the law. In one case, a new, long-term contract was signed in haste
51
52
53
16
See www.oig.dhs.gov/sites/default/files/assets/2019-06/OIG-19-47-Jun19.pdf.
Gabrielle Holly, “Transnational tort and access to remedy under the UN Guiding Principles on
Business and Human Rights: Kamasaee v. Commonwealth”, Melbourne Journal of International Law,
vol. 19, No 1 (2018).
See GBR 5/2010.
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