The Global Detention Project (GDP) hosted a 2-hour training and information session with the Chair of the UN Working Group on Arbitrary Detention (WGAD), Elina Steinerte (full video available below). The event, held on Zoom, was attended by approximately 60 migrant rights advocates representing some 40 civil society organizations from every region of the world. The event was aimed at highlighting the importance of the Working Group’s mandate to migration-related detention, the WGAD’s judicial mechanisms for bringing cases of arbitrary immigration detention, and the Working Group’s growing track record on this issue.
Citing the WGAD’s jurisprudence (“Opinions”) on individual cases of alleged arbitrary immigration detention, Ms. Steinerte explained how detention could be ruled to be arbitrary if: it had no legal basis (Category I); it arose from the violation of a fundamental human right (e.g. the right to freedom of expression or freedom of political opinion, and importantly for migration-related detention, the right to seek asylum) (Category II); it occurred in the absence of a free and fair trial (Category III); it was prolonged or indefinite without an administrative or judicial review or remedy (Category IV); or it was based on, inter alia, discrimination on the grounds of gender, race, nationality, ethnicity, religion, sexual orientation, or disability (Category V).
- Opinion 22/2020 relating to the case of Mr Hamad held in the transit zone in Hungary: https://undocs.org/en/A/HRC/WGAD/2020/22
- Opinion 58/2020 relating to the case of Mr Yengin and Mr Diman in Japan: https://undocs.org/en/A/HRC/WGAD/2020/58
- Opinion 72/2017 relating to the case of Mr Aguilar Rodriguez in the USA: https://undocs.org/A/HRC/WGAD/2017/72
- Opinion 74/2018 relating to the case of Mr Shalikhan in Australia: https://undocs.org/A/HRC/WGAD/2018/74
- Opinion 7/2019 relating to the case of Mr Toure in Canada: https://undocs.org/A/HRC/WGAD/2019/7
- Opinion 2/2019 relating to the case of the infant, Isabella Lee Pin Loong, born in immigration detention in Australia: https://undocs.org/A/HRC/WGAD/2019/2
Ms. Steinerte explained the different tools at the disposal of the WGAD to implement its mandate, including: urgent communications, which can result in urgent appeals, letters, or public press releases; the adoption of Opinions on individual cases; and country visits, leading to the publication of country reports and recommendations. The WGAD also produces annual reports, summarizing its activities and “Deliberations,” akin to the “General Comments” produced by UN Treaty Bodies, which are authoritative conclusions of the WGAD on thematic issues. In this regard, Ms Steinerte drew attention to the WGAD’s “Deliberation No. 5 on the Deprivation of Liberty of Migrants” and “Deliberation No. 11 on the Prohibition of Arbitrary Deprivation of Liberty in the Context of Public Health Emergencies,” both of which have relevance in the context of migration-related detention.
- Deliberation No. 5 on the Deprivation of Liberty of Migrants (see Annex): https://undocs.org/A/HRC/39/45
- Deliberation No. 11 on Prevention of Arbitrary Deprivation of Liberty in the Context of Public Health Emergencies (in Annex): https://undocs.org/A/HRC/45/1
Ms Steinerte explained in detail how NGOs and civil society organizations can engage with the WGAD through urgent appeals, submitting individual cases for review, assisting and supporting with country visits, and suggesting topics for thematic review by the WGAD.
During the Q&A session that followed the presentation, participants highlighted the huge potential for civil society to engage with the WGAD on cases of arbitrary detention of migrants and asylum seekers due to the growing prevalence of immigration detention as a tool for governments to “manage migration.”
The GDP plans to follow up with further information sessions on different human rights mechanisms and procedures that can be used by civil society organizations, lawyers and activists working with migrants, refugees, and asylum seekers.
