parties shall therefore provide living quarters that are suitable for children and provide
adequate access to education, play and leisure facilities, and, in the case of children detained
with their parents, in special family units. Children should not be separated from their
parents against their will except when such separation is necessary for the best interests of
the child (Convention on the Rights of the Child, art. 9, para. 1). Unaccompanied children
should be appointed a legal guardian who should be entrusted with the duty to care for the
child outside of detention facilities.
45. States parties must also take into consideration the special situation of women migrant
workers in detention. States parties must ensure separate facilities for men and women,
ensure the provision of gender-specific health care services, and also provide for the specific
needs of pregnant women, breastfeeding mothers and mothers with young children. States
should avoid detaining women migrant workers in the final months of pregnancy or if they
are nursing. The United Nations Rules for the Treatment of Women Prisoners and Noncustodial Measures for Women Offenders (the Bangkok Rules) provide useful guidelines
for States in these situations.
46. Detention can be particularly damaging to vulnerable categories of migrant workers,
impacting negatively on their physical and mental health. These migrant workers and
members of their families may include victims of torture, unaccompanied older persons,
persons with disabilities and persons living with HIV/AIDS. Special measures should be
taken to protect vulnerable people deprived of their liberty, including access to adequate
health services, medication and counselling. Moreover, migrant workers with disabilities
and members of their families with disabilities should be provided with “reasonable
accommodation”25 to ensure their right to enjoy their human rights and fundamental
freedoms on an equal basis with others.
47. With regard to article 17, paragraph 8, the Committee considers that detention “for the
purpose of verifying any infraction of provisions related to migration” covers the entire
duration of administrative detention, and that, consequently, migrant workers and members
of their families subjected to administrative detention shall not bear any costs arising
therefrom.
48. Considering that migrant workers deprived of their liberty are in a particularly
vulnerable situation due to their predicament and the uncertainty of the circumstances, the
Committee is convinced of the importance of independent monitoring in preventing
torture and other forms of ill-treatment and abuse. National human rights institutions,
relevant civil society actors, the Office of the United Nations High Commissioner for
Refugees (UNHCR), the International Committee of the Red Cross and the Office of the
High Commissioner for Human Rights should have broad access to all places of detention
where migrants are or may be detained.
4. Protection
in expulsion
proceedings
Substantive
protection against
expulsion:
non-refoulement
49. Article 22 of the Convention prohibits collective expulsion and provides procedural
safeguards in individual expulsion proceedings with respect to both regular and irregular
migrant workers and members of their families. While article 22 regulates only the
procedure and not the substantive grounds of expulsion, its purpose is to prevent arbitrary
expulsions and to provide substantive protection against expulsions in certain situations.
Article 22 applies to all procedures aimed at the obligatory departure of migrant workers
whether described in national law as expulsion or otherwise.
50. The principle of non-refoulement, as contained in international and regional human
rights and refugee law, is the prohibition on forcibly removing anyone, in any manner
whatsoever, to a country or territory where they would be at real risk of persecution or
serious human rights violations or abuses. In the view of the Committee, this principle
covers the risk of torture and cruel, inhuman or degrading treatment or punishment,
including inhumane and degrading conditions of detention for migrants or lack of necessary
medical treatment in the country of return, as well as the risk to the right to life (arts. 9 and
10 of the Convention). It also applies to situations where individuals would not be protected
25
Convention on the Rights of Persons with Disabilities, art. 2.
67