Any legislation, policy or practice aimed at preventing the unnecessary detention of persons for reasons related to their migration status, can be considered as an alternative to migrant detention, whether formal or informal, according to IOM.
The Global Compact for Safe, Orderly and Regular Migration states as its 13th Objective that the detention of migrants should be used “only as a last resort, and to work towards alternatives", consistent with international human rights law. In this sense, the issue has always been a priority for the IOM, but now in the context of COVID-19, the need to avoid situations that facilitate the spread of the virus is particularly crucial.
To avoid the unnecessary detention of migrants during the pandemic, the United Nations Migration Network has called on States to:
- ”Stop new detentions of migrants for migration - or health-related reasons and introduce a moratorium on the use of immigration detention.
- Scale up and urgently implement non-custodial, community-based alternatives to immigration detention in accordance with international law.
- Release all migrants detained into non-custodial, community-based alternatives, following proper safeguards.
- Improve conditions in places of immigration detention while alternatives are being scaled up and implemented.”
To achieve this, the Network suggests a series of practical recommendations in the fields of: prevention; release; placement and case management; regularization and access to services; and conditions in Immigration detention. Here are five of these recommendations (from each field) that can be considered as an alternative to detaining migrants or suspending their processes during the pandemic for immigration authorities.
1. Suspend the issuance of detention orders for newly arrived migrants and undocumented migrants in the community on the basis of immigration status: this includes the suspension of pre-deportation detention orders, and immigration raids.
2. Prioritize the immediate release of all children and adolescents from migrant detention centres: whether unaccompanied, separated or in families, children should never be detained for reasons related to their or their parents’ immigration status. Migration detention is never in a child's best interest.
3. Ensure the availability of spaces to host migrants in the community, rather than in detention centres: the spaces should allow for a dignified quality of life and comply with all recommendations to prevent the spread of the virus, such as physical separation, the possibility of quarantine and self-isolation, and limited needs to use public transportation.
4. Do not suspend or accelerate migration procedures without due process: On the contrary, it is necessary to adapt case management to the reality of COVID-19, which included remote communication options and the provision personal protective equipment for migrants and their counsellors, so that their cases can be followed up.
5. Ensure no post-pandemic deportation: There is a need to build trust among migrants and to be able to assure them that any lifting of restrictions or changes in policy after the COVID-19 crisis passes will not be considered grounds for detention and subsequent deportation. It is important for this population to be able to approach health centres and other services during the pandemic without fear.
The full list of recommendations is much more extensive; you can find it here.
While these measures are extensive and require careful consideration of various aspects, some governments are already working on their implementation. For example, a federal judge ordered the Mexican government to release detained migrants who were at increased risk of contracting COVID-19, including people over 60 years of age, pregnant women, and those with chronic diseases. He also ordered the immediate transfer of all unaccompanied and separated children to community-based shelters for children.
The COVID-19 pandemic has created an unexpected opportunity to demonstrate that alternatives to the detention of migrants are a viable option for mitigating public health concerns and ensuring access to human rights and essential services for this population. The United Nations Migration Network urges all actors involved in this process to document best practices and positive impact so that new alternatives to detention can be maintained and strengthened once the pandemic is over.