A/HRC/39/45
Detention conditions and treatment must not be such as to impede the ability to challenge
the lawfulness of detention, and detention should not be used as a tool to discourage asylum
applications.
39.
All detained migrants must have free access to appropriate medical care, including
mental health care.44
VII. Migrants in situations of vulnerability and/or at risk
40.
Detaining children because of their parents’ migration status will always violate the
principle of the best interests of the child and constitutes a violation of the rights of the
child. 45 Children must not be separated from their parents and/or legal guardians. 46 The
detention of children whose parents are detained should not be justified on the basis of
maintaining the family unit, and alternatives to detention must be applied to the entire
family instead.
41.
Detention of migrants in other situations of vulnerability or at risk, such as pregnant
women, breastfeeding mothers, elderly persons, persons with disabilities, lesbian, gay,
bisexual, transgender and intersex persons, or survivors of trafficking, torture and/or other
serious violent crimes, must not take place.47
42.
Men and women in detention should be always separated unless they are a part of an
immediate family unit.
VIII. The prohibition of non-refoulement
43.
The principle of non-refoulement must always be respected, and the expulsion of
non-nationals in need of international protection, including migrants regardless of their
status, asylum seekers, refugees and stateless persons, is prohibited by international law. 48
IX. Detention facilities
44.
The detention of asylum seekers or other irregular migrants must not take place in
facilities such as police stations, remand institutions, prisons and other such facilities since
these are designed for those within the realm of the criminal justice system. 49 The mixing of
migrants and other detainees who are held under the remit of the criminal justice system
must not take place.
45.
Whether a place where those held in the course of migration proceedings is a place
of detention depends on whether the individuals held there are free to leave it at will or not.
If not, irrespective of whether the facilities are labelled “shelters”, “guest houses”, “transit
centres” “migrant stations” or anything else, these constitute places of deprivation of liberty
and all the safeguards applicable to those held in detention must be fully respected. 50
46.
If a State outsources the running of migration detention facilities to private
companies or other entities, it remains responsible for the way such contractors carry out
that delegation. The State in question cannot absolve itself of the responsibility for the way
44
45
46
47
48
49
50
36
See, for example, A/HRC/27/48/Add.2, para. 118 (d) (iii); and A/HRC/30/36/Add.3, para. 75.
See A/HRC/30/37, para. 46; and A/HRC/10/21, para. 60.
See, for example, A/HRC/36/37/Add.2, paras. 43 and 92 (j).
See, for example, A/HRC/13/30/Add.2, para. 79 (f); and A/HRC/16/47/Add.2, para. 119.
See Convention against Torture, art. 3; and Convention relating to the Status of Refugees, art. 33. See
also opinion No. 5/2009; A/HRC/27/48/Add.2, para. 129; and A/HRC/27/48/Add.4, para. 130 (c).
See, for example, E/CN.4/1999/63/Add.3, para. 30.
See A/HRC/7/4, para. 43; and A/HRC/36/37, paras. 50–56. See also A/HRC/33/50/Add.1, para. 36.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents