In an increasingly interconnected world, physical borders do not always define the limits of human rights and dignity. The detention of foreigners, whether for immigration, legal, or political reasons, has become one of the most controversial issues on the international scene. What happens when a person crosses a physical border and, as a result, finds their fundamental rights in limbo? This article delves into the human rights reality of those facing detention outside their country of origin.
When we talk about foreign detainees, we are referring to a highly vulnerable population. Far from home, with linguistic and cultural limitations, and often completely devoid of adequate legal support, these individuals face risks ranging from physical and psychological abuse to denial of access to basic resources such as medical care and food. Furthermore, they often find themselves trapped in complex judicial systems that do not always operate with transparency and fairness.
The problem goes beyond the simple legal issue. There are often structural failures in the protection of the human rights of detained foreigners, either due to a lack of political will or insufficient resources. Even nations that consider themselves champions of human rights have been criticized for the treatment of foreigners in their detention centers. These criticisms have brought to light practices that could be classified as inhumane: overcrowding, unsanitary conditions, and prolonged periods without trial.
However, the outlook is not entirely bleak. In many regions, initiatives led by committed non-governmental organizations and activists are working day after day to improve conditions and ensure respect for the basic rights of this population. Through constant monitoring, international pressure, and the creation of legal assistance programs, notable progress has been made in addressing what seems like a daunting task.
The key to making progress on this issue lies in addressing the problem from a dual perspective: first, by recognizing the inherent humanity of each individual regardless of their origin or immigration status; and second, implementing clear policies that guarantee compliance with international human rights treaties. This requires not only collaboration between states, but also the active engagement of multilateral organizations and civil society.
On the other hand, it is essential to foster dialogue on how the global migration system can be transformed to prevent the situations that lead to these mass detentions. From adjusting migration policies to investing in social integration programs, efforts must focus on reducing both the causes and consequences of forced displacement and detention.
Exploring human rights beyond borders forces us to reflect on our collective responsibility to those on the margins of the system. Although it may seem like a daunting challenge, we must never underestimate the power of individual and community actions to bring about real change. In doing so, we can imagine a future where respect for human dignity knows no borders, physical or legal. And perhaps, then, human rights will cease to be simply a glorious ideal and become a tangible reality for all.
International Legal Framework
Respect for the human rights of foreign detainees is based on a solid international legal framework encompassing a series of treaties, conventions, and principles. This legal framework seeks to ensure that, regardless of nationality or immigration status, all persons deprived of their liberty are treated with dignity and in accordance with the law.
Universal Human Rights Instruments
At the global level, the United Nations (UN) has developed a series of instruments that establish minimum standards for the treatment of all persons, including foreign detainees. Among the most relevant are:
Universal Declaration of Human Rights (UDHR): Although not a binding treaty, its principles underlie much of international human rights law. It establishes fundamental rights such as the prohibition of torture and the right to a fair trial.
International Covenant on Civil and Political Rights (ICCPR): This treaty details rights such as the right to liberty and security of person, the right not to be arbitrarily detained, the right to a fair trial, and the right to humane treatment in detention. It is crucial for foreign detainees, as it prohibits discrimination based on national origin.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT): Absolutely prohibits torture and other cruel, inhuman, or degrading treatment, regardless of the circumstances. This is especially relevant for foreign detainees, who may be more vulnerable to abuse.
Set of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment: Although not a treaty, this set of UN principles provides detailed guidance on the rights of detainees, including access to legal counsel and communication with the outside world.
Regional Human Rights Instruments
In addition to universal instruments, there are regional human rights systems that complement and sometimes reinforce the protection of foreign detainees within their respective geographic jurisdictions. Some important examples include:
Inter-American Human Rights System (Americas): Comprised of the American Convention on Human Rights (Pact of San José) and its organs (the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights). This system has developed extensive jurisprudence on the rights of migrants and foreign detainees, including the principle of non-refoulement and the right to due process.
European Human Rights System (Europe): Led by the European Convention on Human Rights and the European Court of Human Rights. It has established important guarantees for detainees, including the right to an effective remedy against detention and the prohibition of expulsion to countries where there is a risk of torture or ill-treatment.
African Human Rights System (Africa): Based on the African Charter on Human and Peoples' Rights. Although its development in this area is more recent, it seeks to protect the rights of persons in detention, including foreigners.
International Humanitarian Law (where applicable)
In situations of armed conflict, International Humanitarian Law (IHL), also known as the "law of war," comes into play to protect all persons affected by the conflict, including foreign detainees. While its primary application is in the context of armed conflict, it is critical when foreign detainees are prisoners of war or interned civilians. The main instruments are the 1949 Geneva Conventions and their Additional Protocols. These establish standards on the treatment of prisoners of war and the protection of civilians in times of conflict, ensuring that they are provided with humane treatment, medical care, and the right to communicate with their families, among others.
Admission, Detention, and Rights at the Border
The arrival of a foreign national to a new country, whether for migration, asylum, transit, or any other purpose, subjects them to a series of procedures and, in some cases, the possibility of detention in the border zone. It is at this crucial point where the human rights of detained foreign nationals are particularly vulnerable and require rigorous protection.
Upon arrival at a point of entry (airport, seaport, land border crossing), all foreign nationals are subject to immigration control procedures. These procedures aim to verify the individual's identity, the purpose of their trip, and whether they meet the entry requirements established by national and international legislation. They include, among others:
- Document verification: Examination of passports, visas, entry permits, and other travel documents.
- Interviews: Immigration officials may conduct interviews to clarify the purpose of the trip, the intended length of stay, and other relevant details.
- Databases and watch lists: Comparing the individual's information with national and international databases to detect potential security risks or previous immigration violations.
- Risk assessment: Determining whether the individual poses a risk to public safety, health, or public order.
It is essential that these procedures be carried out in a non-discriminatory manner and with respect for the individual's dignity
Detention at the border, whether of irregular migrants or asylum seekers, is a measure that should be applied exceptionally and only when strictly necessary and proportionate. International human rights law establishes that immigration detention should be a last resort and not a norm.
- Immigrant Detention: A migrant may be detained if they are deemed to fail to meet entry requirements, if they have attempted to enter irregularly, or if there is an expulsion or deportation order against them. Detention should be for the shortest possible time and for legitimate purposes (e.g., to verify identity or arrange for removal).
- Detention of Asylum Seekers: The detention of asylum seekers is a particularly controversial practice. UNHCR (United Nations High Commissioner for Refugees) and other international organizations advise against the detention of asylum seekers unless absolutely necessary for specific and legitimate purposes, such as identity verification, determining risk factors, or preventing illegal border crossings. Under no circumstances should this be a punitive or prolonged measure. Alternatives to detention should always be prioritized.
In both cases, detention must be based on law, be necessary and proportionate, and subject to judicial review.
One of the fundamental rights of detained foreigners is the right to be informed about the reasons for their detention and their rights, including the right to contact their country's consular authorities.
Clear and understandable information: The detained person must be informed, in a language they understand, about the reasons for their detention, its legal basis, and the procedures that will be followed.
Right to consular assistance: According to the 1963 Vienna Convention on Consular Relations, the detaining state has the obligation to promptly inform the detained foreigner of their right to communicate with their consulate or embassy. Consular authorities, in turn, have the right to visit their detained nationals, confer with them, and arrange for legal assistance if necessary. This right is crucial to ensuring that the detainee receives support and protection from their own government.
Since foreign detainees may not be fluent in the language of the country where they are held, the right to an interpreter is essential to ensuring a fair and equitable process.
Guaranteed Access: The State must provide a qualified and neutral interpreter at no cost to the detainee at all stages of the process, from the initial interview at the border to any judicial or administrative proceedings related to their detention or immigration status.
Effective Communication: The interpreter must facilitate effective communication between the detainee and the authorities, ensuring that the detainee fully understands the information provided and that their statements are accurately conveyed.
Understanding Rights and Responsibilities: Without an interpreter, a foreign detainee cannot fully understand their rights, the charges against them, or the legal procedures to be followed, which seriously undermines due process guarantees.
Safeguarding these rights at the border is the first critical step to ensuring full respect for the human rights of foreign detainees.
Rights During Detention
Once a foreigner is detained, whether for immigration, criminal, or other reasons, the protection of their human rights becomes paramount. International law establishes a set of guarantees that must be respected at all times during the period of deprivation of liberty, ensuring humane and dignified treatment.
The conditions in which detainees, including foreigners, are held must adhere to minimum standards established by international human rights law. These standards seek to ensure that detention is not punitive in nature and that it respects the intrinsic dignity of the person. Key aspects include:
- Hygiene and Health: Facilities must be clean and sanitary, with access to adequate toilets and showers, drinking water, and sufficient ventilation.
- Food: Detainees must receive sufficient, nutritious food tailored to their dietary needs, taking into account cultural or religious considerations.
- Accommodation: Cells or dormitories must have sufficient space, adequate lighting (natural lighting if possible), and a reasonable temperature. Clean beds and bedding must be provided.
- Clothing: Detainees must be allowed to wear their own clothes or be provided with suitable clothing that is clean and appropriate for the climate.
- Physical Exercise and Activities: Detainees must have the opportunity for daily outdoor physical exercise and, to the extent possible, participate in recreational, educational, or work-related activities.
- Separation: It is essential that foreign detainees held for administrative (immigration) reasons be separated from criminal detainees. Furthermore, men and women, and minors and adults, must be separated.
- Safety: Authorities must ensure the safety of detainees, protecting them from violence, harassment, or exploitation by other detainees or staff.
These standards are derived from, among others, the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), although not binding treaties, they serve as authoritative guidance.
Every detainee has the right to receive adequate medical care, regardless of their immigration status or nationality. This right is fundamental and must be guaranteed without delay.
Initial Medical Examination: All detainees must undergo a medical examination as soon as possible after entering the detention center to identify any pre-existing health problems or injuries.
Ongoing Medical Care: Regular medical and dental care must be provided, and in emergencies, specialized medical care must be provided. This includes access to necessary medications and treatment for chronic conditions.
Qualified Medical Personnel: Care must be provided by qualified medical and nursing personnel, and the confidentiality of medical information must be guaranteed.
Right to Request an Outside Physician: In some cases, and under certain conditions, the detainee may have the right to request an examination by a physician of their choice, at their own expense.
The ability to communicate with the outside world is vital to the detainee's psychological well-being and legal defense.
Contacts with Family and Friends: Detainees have the right to communicate with their family and friends through correspondence, telephone calls, or visits, except for reasonable and necessary restrictions for security reasons or the administration of justice.
Communication with Lawyers: The right to communicate privately with a lawyer is a fundamental guarantee of due process. This communication should not be monitored.
Consular Communication: As mentioned above, the right to communicate with the consular authorities of their country is inalienable for foreign detainees.
Regular visits from family and friends are crucial to maintaining the detainee's social ties and mitigating the negative effects of deprivation of liberty.
Frequency and Duration: Visits should be permitted with reasonable frequency and duration, in accordance with the detention center's internal regulations, but always respecting the detainee's right to maintain contact with their surroundings.
Privacy: To the extent possible, a certain degree of privacy should be allowed during visits without compromising security.
Restrictions: Any restrictions on visits must be justified by legitimate reasons (e.g., security, public order) and be proportionate.
This is an absolute and fundamental right, which admits no exceptions, not even in times of war or public emergency. The prohibition of torture and other cruel, inhuman, or degrading treatment or punishment is a peremptory norm of international law (jus cogens).
Definition of Torture: The Convention against Torture defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person, for the purpose of obtaining from that person or a third party information or a confession, punishing that person for an act that he or she has committed or is suspected of having committed, intimidating or coercing that person or others, or for any reason based on any form of discrimination, when such pain or suffering is inflicted by, at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity."
Absolute Prohibition: No circumstances, such as a threat of war, internal political instability, public emergency, or the fight against terrorism, can justify torture or cruel, inhuman, or degrading treatment or punishment.
Investigation and Punishment: States have the obligation to investigate all allegations of torture or ill-treatment and to prosecute and punish those responsible. Statements obtained under torture cannot be used as evidence in any proceedings.
Non-refoulement: This principle is crucial for foreign detainees. It prohibits States from expelling, returning, or extraditing a person to another state where there are substantial grounds to believe that they would be in danger of being subjected to torture or cruel, inhuman, or degrading treatment.
The observance of these rights during detention is a barometer of a society's civilization and an inescapable obligation under international law.
Judicial and Administrative Procedures
The deprivation of liberty of a foreigner, whether for criminal or administrative reasons (as in the case of irregular migration), must always be subject to rigorous judicial and administrative control. This ensures that the detention is not arbitrary and that the detained foreigner has the opportunity to challenge their situation and defend their rights.
For detained foreigners facing criminal charges, the right to a fair trial is a cornerstone of due process and is guaranteed by international instruments such as the International Covenant on Civil and Political Rights (ICCPR) and regional human rights conventions. This right includes a series of essential guarantees:
- Presumption of innocence: Everyone is presumed innocent until proven guilty according to law.
- Public trial without undue delay: The process must be transparent and conducted within a reasonable time.
- Independent and impartial judge: The case must be tried by a competent court, established by law, free from external pressure.
- Right to be informed of the charges: The detainee must be fully and clearly informed of the charges against him or her in a language he or she understands.
- Right to prepare a defense: Adequate time and facilities must be provided for the preparation of a defense, including access to documents and evidence against him or her.
- Right to examine or have witnesses examined: The accused person has the right to confront the prosecution's witnesses and to present his or her own witnesses.
- Right against self-incrimination: No one may be forced to testify against himself or herself or plead guilty.
- Right to appeal the verdict: The detainee has the right to have the sentence and conviction reviewed by a higher court.
- Right to be present at trial: Generally, the accused must be present during his or her trial.
For those detained in immigration proceedings, even if it is not a criminal trial, the principle of fair trial translates into the need for due process that guarantees the legality and fairness of decisions.
Access to legal assistance is a fundamental right for any detainee, and it is critically important for foreigners who are often unfamiliar with the host country's legal system and may face language and cultural barriers.
- Legal assistance from the outset of detention: Every detainee must have the right to communicate with and receive advice from a lawyer of their choice from the moment of detention.
- Confidentiality: Communications between the detainee and their lawyer must remain strictly confidential.
- Free legal assistance: If the detainee lacks the financial resources to pay for a lawyer, the State must provide free legal assistance, especially in cases where the applicable penalty is severe or when it is indispensable for the administration of justice.
- Expert advice: In the case of foreign detainees, it is crucial that legal assistance consider the specificities of immigration law, international refugee law, and consular implications.
Detention, regardless of its nature, cannot be arbitrary or prolonged indefinitely. International law requires the existence of effective remedies that allow detainees to challenge the legality and necessity of their deprivation of liberty.
Habeas Corpus/Recurso de Amparo: Detainees must have the right to initiate proceedings before a court to decide without delay on the legality of their detention and order their release if the detention is unlawful. This remedy must be expeditious and accessible.
Periodic review of detention: In particular, in the context of immigration detention, the necessity of detention must be reviewed periodically by an independent judicial or administrative authority to determine whether the detention remains necessary and proportionate. If the justification for detention ceases to exist, the person must be released.
Access to administrative tribunals: Administrative detainees (e.g., migrants) should have access to administrative and judicial remedies to challenge detention or expulsion decisions.
When a State decides to expel or deport a foreigner, this procedure must also adhere to strict procedural guarantees to ensure respect for the individual's rights and prevent return to situations of risk (principle of non-refoulement).
- Reasoned and written decision: The expulsion or deportation decision must be communicated to the foreigner in writing, with a clear and detailed justification of the reasons and legal basis.
- Right to be heard: The foreigner must have the opportunity to present their arguments and evidence against the expulsion, either orally or in writing.
- Access to relevant information: The foreigner must have access to the information and documents that served as the basis for the expulsion decision, except for strictly limited exceptions for reasons of national security.
- Right to an effective remedy: There must be a judicial or administrative remedy that allows the foreigner to challenge the expulsion decision before it is implemented. This remedy must have suspensive effect, that is, suspend the expulsion until the appeal is resolved, especially if there are credible allegations of a risk of torture or persecution in the destination country.
- Principle of non-refoulement: This principle prohibits States from expelling or returning a person to a country where there is a real risk of being subjected to torture, cruel, inhuman, or degrading treatment, or persecution. Authorities must carefully assess this risk before any expulsion.
- Consideration of family ties and other factors: When making decisions about expulsion, factors such as the foreigner's family ties in the country, their length of stay, and any other humanitarian circumstances must be considered.
- Humane execution: Expulsion or deportation must be carried out in a humane manner that respects the dignity of the person, avoiding the excessive use of force and ensuring that the person has their essential belongings with them.
Compliance with these procedural and judicial guarantees is crucial to protecting the rights of foreign detainees and ensuring that they do not fall victim to arbitrary or unjust decisions.
Vulnerable Groups in Detention
The detention of any person carries inherent risks to their rights, but these risks are exponentially magnified when the detainee belongs to a vulnerable group. For foreign detainees, these vulnerabilities may be even more acute due to language barriers, lack of support networks, and lack of familiarity with the legal system. International human rights law requires special and differentiated protection for these populations.
The detention of unaccompanied migrant children and adolescents (CHI) is one of the most sensitive issues in the field of migration and human rights. The international position is clear: the detention of a child for migration reasons is not in the child's best interest and, therefore, must be avoided.
Principle of the Best Interests of the Child: The Convention on the Rights of the Child (CRC) establishes that, in all measures concerning children, their best interests must be considered primarily. This implies that the detention of a child should only be a last resort and for the shortest possible period.
Alternatives to Detention: Alternatives to detention, such as placement in shelters, foster care, or community care, should always be prioritized, allowing the child to live in an appropriate environment conducive to their development.
Protection and Assistance: Unaccompanied children and adolescents are entitled to special protection, which includes the identification of their specific needs, access to educational, health, psychological, and legal services, and the search for durable solutions that include family reunification.
Identification and Age Determination: It is crucial that adequate procedures be implemented to determine the age of migrants who claim to be minors, and that a presumption of minority be established in case of doubt.
Victims of human trafficking are individuals who have been subjected to exploitation (sexual, labor, organ removal, etc.) through coercive means such as threats, the use of force, deception, or abuse of power. When these individuals are detained, whether due to their irregular immigration status or for crimes related to their victimization, their situation is extremely vulnerable.
Proactive Identification: Authorities should implement mechanisms to proactively identify potential trafficking victims among those detained, paying attention to indicators such as lack of documentation, fear, unexplained injuries, and lack of control over their money or movement.
Non-Punishability: Victims of trafficking should not be criminalized for crimes they have committed as a direct result of their exploitation (e.g., irregular entry or residence, use of false documents).
Protection and Assistance: Once identified, victims of trafficking must receive protection, humanitarian assistance (safe accommodation, medical and psychological care), legal counseling, and a reflection period to decide whether to cooperate with the authorities.
Non-Refoulement Principle: They must not be returned to a country where their life or freedom would be at risk or where they could be subjected to further trafficking or reprisals.
People with disabilities in detention face unique and often invisible challenges. Deprivation of liberty can exacerbate their pre-existing conditions and create new barriers to the enjoyment of their rights.
Accessibility: Detention facilities must be accessible to people with different types of disabilities (physical, sensory, intellectual, psychosocial), including ramps, adapted toilets, clear signage, and, where necessary, personal assistance or assistive devices.
Specialized Medical Care: They must have access to specialized medical care and the treatment and support they require related to their disability.
Reasonable Adjustments: It is essential that "reasonable adjustments" be made to ensure that people with disabilities can exercise their rights on an equal basis with other detainees, for example, by providing accessible formats of information or communication support.
Protection against Discrimination: They must be protected from any form of discrimination or ill-treatment based on their disability.
The detention of pregnant women or women with young children raises significant humanitarian and health concerns for both mother and child.
Alternatives to Detention: The detention of pregnant women and mothers with young children should be avoided to the greatest extent possible, and community-based alternatives that allow for adequate care for both mother and child should be prioritized.
Specific Medical Care: Pregnant women should receive appropriate prenatal, natal, and postnatal care, as well as special diets and hygiene conditions.
Child Welfare: If a mother is detained with her child, the conditions of detention should ensure the child's well-being, including access to adequate nutrition, medical care, education, and an environment conducive to development. In many systems, efforts are made to avoid the separation of mothers and babies.
No Detention of Children Due to the Immigration Status of Their Parents: In the case of children accompanied by their parents, the principle of the best interests of the child remains paramount. The detention of a child should not be a result of the irregular immigration status of their parents.
The identification and differentiated treatment of these vulnerable groups is not an option, but a legal and ethical obligation that seeks to safeguard the dignity and human rights of all people, especially those in more vulnerable situations.
Challenges and Good Practices
The detention of foreigners, especially in migration contexts, presents significant challenges for States, which must often balance national security and border control with the protection of human rights. However, there are good practices and approaches recommended by international law that seek to mitigate risks and ensure dignified treatment for detainees.
One of the most fundamental good practices and a guiding principle of international law is that immigration detention should always be a last resort. This means that:
Exceptionality: Deprivation of liberty for immigration reasons should not be the norm, but rather an exceptional measure applicable only when strictly necessary and proportionate for a legitimate purpose (such as verifying identity, preventing absconding, or ensuring expulsion).
Individualization: The decision to detain a foreigner should be based on an individual assessment of each case, considering all relevant circumstances and the existence of less restrictive alternatives. It should not be applied automatically or categorically.
Brevity: Detention should be for the shortest possible period. Once the legitimate objective of detention has been achieved or ceased to exist, the person must be released. Indefinite detention is arbitrary and prohibited.
Since detention should be a last resort, it is imperative that States develop and implement alternatives to detention (ATD). These alternatives are non-custodial measures that allow authorities to manage individuals' immigration status while respecting their freedom. ATDs can be very diverse and must be tailored to individual needs and risks:
Periodic Reporting: Requiring the individual to report regularly to immigration or law enforcement authorities.
Financial Bond or Surety: Requiring a financial deposit to guarantee the individual's appearance.
Community/Personal Guarantee: Designating a guardian or civil society organization responsible for monitoring the individual.
Residence at Specific Addresses: Limiting freedom of movement to a known residential address.
Support and Monitoring Programs: Offering counseling, legal and social support, and monitoring services through case managers.
Use of Technology: In some cases, the use of technology (e.g., electronic anklets) can be an alternative, although its implementation must be careful to avoid violating privacy and dignity.
Alternatives to detention are often more cost-effective, more humane, and produce better outcomes for individuals and communities.
Respect for the human rights of foreign detainees depends largely on adequate training for officials who interact directly with them. This includes police officers, immigration personnel, border guards, and prison staff. Training should focus on:
International Human Rights Law: Understanding of state human rights obligations and the principle of non-discrimination.
Immigration and Asylum Law: Knowledge of procedures, the rights of asylum seekers, the principle of non-refoulement, and the identification of international protection needs.
Vulnerability Identification: Ability to identify vulnerable individuals (children, victims of trafficking, people with disabilities, etc.) and understand their specific needs.
Cultural and Gender Sensitivity: Development of skills to interact respectfully with people of diverse cultures and genders.
Use of Force: Training in the proportionate and necessary use of force, avoiding torture and ill-treatment.
Managing Difficult Situations: Techniques to manage stress and frustration and prevent burnout that can lead to abuse.
To ensure compliance with human rights standards in detention centers, robust and independent monitoring and oversight mechanisms are essential.
Regular and Independent Visits: National and international bodies should have unrestricted and unannounced access to all detention centers, including immigration detention centers. This may include the UN Committee Against Torture, national human rights institutions (such as ombudsmen's offices), and civil society organizations.
Grievance and Reporting Mechanisms: Detainees should have accessible, confidential, and secure avenues to lodge complaints about conditions of detention or any abuses, without fear of reprisals.
Public Reports and Recommendations: The monitors' findings should be documented in public reports, with clear recommendations to States for improving conditions and practices.
Judicial Oversight: As mentioned, judges should regularly oversee the legality and necessity of detention.
Conclusions and Recommendations
The analysis of the human rights of foreign detainees in "Beyond Borders" reveals a complex intersection between state sovereignty, migration control, and international human rights obligations. While States have the right to control their borders and manage migration, this prerogative is not absolute and is limited by the imperative to respect the dignity and fundamental rights of all persons, regardless of their nationality or migration status.
The main conclusions are that:
The international and regional legal framework provides a solid basis for the protection of foreign detainees, but its effective implementation remains a considerable challenge.
Rights at the border are critical, as it is the first point of contact where due process and humanitarian guarantees can be seriously violated.
The conditions of detention and access to essential services (medical care, communication, visits) are crucial for the physical and psychological well-being of detainees.
Fair judicial and administrative procedures are essential to prevent arbitrary detention and ensure the legality of any decision to deprive people of liberty or expel them.
Vulnerable groups require differentiated and prioritized protection, and their detention should be avoided to the greatest extent possible.
Based on these conclusions, the following recommendations are made:
Ratification and Effective Implementation of Treaties: States should ratify relevant international and regional human rights instruments and ensure that their national laws and policies are fully aligned with these obligations.
Prioritize Alternatives to Immigration Detention: States are urged to abandon immigration detention as standard practice and invest in the development, implementation, and financing of a wide range of alternatives to detention, always prioritizing non-custodial measures.
Strengthen Training and Awareness: It is essential to invest in ongoing and comprehensive training for all officials who interact with foreign detainees, with an emphasis on human rights, identifying vulnerabilities, and cultural sensitivity.
Guarantee Access to Justice and Legal Assistance: All foreign detainees must be ensured to have immediate access to information about their rights, an interpreter, and effective and free legal assistance, if necessary, from the beginning of their detention.
Establish Independent Monitoring Mechanisms: States must guarantee the operation of independent and effective monitoring and oversight mechanisms, with unrestricted access to detention centers, and whose recommendations are considered and acted upon.
Prohibit the Detention of Children for Immigration Reasons: It is strongly recommended to end the detention of children and adolescents for immigration reasons and develop alternatives that prioritize their best interests.
Protect Victims of Trafficking and Persons with Special Needs: Implement robust mechanisms for the early identification of victims of trafficking and other vulnerable persons, offering them protection and assistance, and preventing their criminalization or deportation to risky situations.
Ensure Humane Detention Conditions: Guarantee that all detention facilities meet international standards of hygiene, sanitation, food, medical care, and space, and that the rights to communication and visitation are respected.
Respect the Principle of Non-Refoulement: Ensure that no person is expelled or deported to a country where there is a real risk of torture, cruel, inhuman, or degrading treatment, or persecution.
The commitment to the human rights of foreign detainees is not only a legal obligation, but also a reflection of the fundamental values of justice and humanity. Implementing these recommendations will contribute to building migration systems that are more just, safe, and respectful of human dignity for all.