Summary

In this report, the Special Rapporteur aims to recall the broad range of international legal obligations arising from the prohibition of torture and ill-treatment; examine the legal implications of these obligations for some of the most prevalent laws, policies and practices employed by States in response to irregular migration; and make recommendations with a view to supporting States in addressing irregular migration in full compliance with these obligations, avoiding protection gaps and preventing impunity for violations.

The Special Rapporteur concludes that the primary cause for the massive abuse suffered by migrants in all regions of the world—including torture, rape, enslavement, trafficking and murder—is the growing tendency of States to base their official  migration policies and practices on deterrence, criminalization and discrimination rather than on protection, human rights and non-discrimination.

He further underlines that States must respect and ensure the right to be free from torture and ill-treatment without any discrimination. He also points out that the intentional infliction of severe pain or suffering “for any reason based on discrimination of any kind”, including based on migration status—by definition—amounts to torture. This is the case regardless of whether it is inflicted by or is at the instigation of State officials themselves, or merely with their consent or acquiescence.

The Special Rapporteur recommends that States ensure survivors obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. He also calls on States to refrain from policies of mandatory, prolonged or indefinite detention of migrants. The report specifies that migrants, especially children, should never be detained solely because of their irregular migration status or because they cannot be expelled. Further, the detention of migrants should never be used as a means of deterrence, intimidation, coercion or discrimination but, within the margins set by human rights law, should take duly into account any personal vulnerability due to factors such as migration status, age, gender, disability, medical condition, previous trauma or membership in a minority group.

Background

While some aspects of international migration may give rise to serious logistic, humanitarian, demographic, financial or even security challenges, the phenomenon as a whole is neither a “threat” requiring military defence nor a global “state of emergency” justifying derogation from the applicable normative frameworks. It is rather a long-standing global governance issue that should be addressed in full compliance with human rights and the rule of law.

Additional information

• Statement of the Special Rapporteur on Torture to the Human Rights Council