IDC Briefing Paper - Immigration Detention as an Exceptional Measure of Last Resort

d) Immigration detention as an exceptional measure of last resort In addition to the need to ultimately The UN Committee on Migrant Workers abolish immigration detention, and the has stated: “Immigration policy should prohibition on immigration detention be based on a presumption of freedom of children and other people in specific and not of detention. [...] The Court stated: “This corresponds to the general principle that a detention order may not be issued solely on the basis of the fulfilment of the formal requirements of Section 62 (2), but also that the constitutional requirement of proportionality must always be observed.”84 A number of other cases applying the proportionality prin- ciple concern limiting the period of detention to the shortest. [...] dividualised evaluation, the possibili- Numerous other bodies of the Council ty of using less restrictive measures of of Europe have reiterated the obliga- achieving the same ends, are arbitrary.”101 tion for States to consider and rule out alternatives to immigration detention in In the Brazil Plan of Action, govern- each individual case.107 The Council of ments of Latin America and the Carib- Eu. [...] In their joint General Comment of 2017, the UN Committee on the Rights of the Child and the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, stated that the detention of children because of their or their parents’ migration status constitutes a child rights violation and always contravenes the principle of the best interests of the child. [...] 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration, 16 November 2017, CMW/C/CG/3-CRC/C/GC/22.