Contributions from the Committee on Migrant Workers for the General Comment no. 35 of the Human Rights Committee, on " the right to freedom and personal safety: Article 9"
Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW)believes that respect, protection and guarantee ofthe right to freedom of migrant persons is based on the following principles and standards:
1. Principle of exceptionality of the detention for reasons of immigration
2. Duty to adopt alternative measures to detention, in law and in practice
3. Ensure due process guarantees, implement alternative measures and use of detention on an exceptional basis
4. In the exceptional case of resorting to detention, appropriate conditions to the situation of migrants and their families must be ensured

5. Under no circumstances,children and adolescents will be deprived of liberty because of migration status

6. Prohibition of detention as a criminal sanction to a violation regarding migration - principle of non–criminalization
As described below, these principles and standards are based on the Committee's jurisprudence, other treaty bodies, as well as other special mechanisms to protect human rights, both from the UN and regional systems.
1) Principle of exceptionality ofdetention as a precautionary measure in the context of immigration proceedings
This Committee has stated that the detention of migrants in the context of immigration proceedings can only exist as a last resort measure, with priority given to less restrictive alternatives, especially non-custodial sanctions[1]. If in criminal law, detention during a procedure is an exceptional measure, in proceedings relating to the entry and stay of persons in a territory, the standard of presumption in favor of liberty (favor libertatis) must be considered even higher and should be respected more rigorously, since immigration violations arepurely administrative in nature[2].
Likewise, the UN Special Rapporteur on the Human Rights of Migrants affirmed that deprivation of liberty for reasons related to migration should never be mandatory norautomatic. In accordance with international human rights standards it must be imposed as a last resort, only for the shortest time possible and when a less restrictive measure does not exist. Governments are required to provide in their national legislation a presumption in favor of liberty, consideringfirst alternative non-custodial measures of freedom, evaluating every single case and choosing the less stringent or restrictive measure[3].
This would lead to the general principle that immigration proceedings should be governed by the freedom of the individual. If necessary, depending on the case,alternatives to detention could be implemented. And, if a State allows detention in these procedures it must be includedexplicitly in the legislation as an exceptional measure of last resort. To be more precise, in these exceptional cases, States should be guided by the principles and standards that are developed below (points 2-6)
2) Presumption of liberty and alternative measures to detention
The general principle governing infringements of an administrative nature is that people should be free during the procedure. If necessary in a particular case, alternatives to detention may apply, which seek to satisfy procedural objectives of immigration policy, without resorting to imprisonment. The General Assembly has highlighted the success achieved by some States in the implementation of measures that do not involve detention of migrants, adding that it is a practice that "deserves consideration by all States."[4] In this regard, the Special Rapporteur on the rights of migrants said that "the right to personal liberty and security requires States to consider in the first place alternatives to deprivation of liberty of migrants that are less stringent."[5] Alternatives to imprisonment can be defined as the laws, policies or practices that allow asylum seekers, refugees and migrants reside in the community and move freely while their status as migrants is being resolved or are awaiting their deportation or deportation.[6]
The MWC, meanwhile, stressed that,in any case, the less restrictive and intrusive measure should apply to each individual case[7]. This implies that States must establish by law, and ensure in practice, a number of alternatives to detention in the context of migration processes, since they are less burdensome and constitute an appropriate and consistent response to the respect for human rights of migrants[8]. As noted by the Special Rapporteur on the Rights of Migrants, the obligation to consider alternatives to detention (non-custodial freedom) before resorting to privation of liberty must be established by law. Detailed guidelines and appropriate training for judges and other officials, such as police, border guards and immigration officials, in order to ensure consistent application of non-custodial measures freedom instead of detention, should be provided[9].
3) Obligation to ensure due process
If the competent authority decides to apply an alternative to a detention measure, and especiallywhen restoring to detention,all guarantees of due process must be ensured, irrespectively of nationality, immigration status or residence[10], or any other status, whenever it is an administrative or judicial procedure[11]. This Committee and the Special Rapporteur on Human Rights of Migrants and other international mechanisms of human rights protectionhave emphasized the need to ensure these guarantees to migrants effectively.
First, any decision on the introduction of an alternative measure to freedom (e.g. the periodic comparison of the person before the authority) must be duly substantiated by the competent authority, highlighting the necessity and proportionality of the measure in the case. This duty of substantiation must be carefully respected if restoring to the most severe measure, detention. In this case, it must be justified why it is not applicable to any of the alternatives provided for in legislation.
Secondly, these procedures must meet, among others, the following guarantees: the arrested person must be informed in a language in which the person understandsthe reasons for the arrest, and be immediately informed of their rights verbally[12] as well as in writing[13]. It also implies that the person should be put into immediate communication with an attorney and provided with free of charge legal aid[14]; they should be given the services of an interpreter or translator, have the means to contact their families, as well as the resources to challenge the detention through an effective remedy[15]. Moreover, their right to consular assistance must also be communicated, which comprises: (i) the right to be notified of their rights under the Vienna Convention; (ii) the right of effective access to communicate with a consular officer, and (iii) the right to the same assistance.[16]
4) Adequate conditions of detention
Besides the absence of substantive and procedural guarantees, the exceptional migrant detention may be arbitrary if its not implemented meeting certain conditions. So on the one hand, the arrest must be made in the shortest possible time[17], it shouldn’t be indefinite under no circumstances[18], and the law must fix a maximum period of detention, which must also meet the criteria of reasonableness, necessity and proportionality. Furthermore, as stated in the Convention on the Rights of All Migrant Workers, migrants should not be detained in places for the detention of persons accused or convicted of criminal offenses.
Another important aspect has to do with conditions in the places where migrants can be exceptionally detained. First, since the nature it is not a correctional, and in the case of persons seeking to enter and / or remain (i.e., live, work, seek protection) in a territory, the conditions on daily activities or disciplinary rules, among others, should be substantially different. In this regard, sanctions mechanism and other procedures related to punitive and social reintegration aspects of criminal policyshould be banned.
Secondly, these centers must ensure adequate standards of various rights at stake including: the right to adequate food, the right quality and timely health care, the right to information, to communicate with family and visits to recreational activities , communicate regularly with an attorney, to practice their religion in appropriate conditions.
5 ) Principle of non- arrest of migrants child
The Committee on the Rights of the Child has stated that Article 37.2 of the Convention on the Rights of the Child, which provides the detention of children as a last resort, could only be applied in cases of children and adolescents in conflict with the law. Therefore,immigration sanctions are not applicable for children and adolescents who may incur in irregular situations. In such cases, the Committee has stressedthat the principle of no detention should prevail[19]. In recent years, it has been repeatedly stated that the detention of child migrants cannotbe, in any case, in line with the principle of best interests of the child[20]. In this sense, there is a consensus that children/unaccompanied or separated children from their families should not be deprived of liberty.[21]

Families with children should also not be deprived of liberty[22], and cannot be justified on the grounds of preserving the family unit[23]. On the contrary, cases of children and adolescents with their parents or guardians, theright to preservation of the family unit must always prevail together with the right to personal liberty of the whole family in front of the powers of a State for immigration control,in order to prevent family separation[24]. In the same way, the Special Rapporteur on the human rights of migrants said that "the great use of a rights-based approach would entail the adoption of alternative measures for the whole family; therefore, States should develop policies to accommodate the whole family in alternative closed detention centers."[25]
6) Prohibition of detention as a criminal sanction on immigration violations
The situation of irregular migration in which a person can be, whether by illegal entry to the territory or the lack or expiration of the residence permit may constitute an administrative offense and not a crime. Therefore, it cannot lead to a punitive response from the States, as noted by this Committee and other international human rights mechanisms[26]. Specifically, it has been established that the detention of persons because of the breach of immigration laws should never be punitive[27]. Moreover, the detention of migrants used as a mechanism of migration control, is a disproportionate,arbitrary[28], inadequate and ineffective[29] to respond to the growing phenomenon of irregular migration[30], it criminalizes irregular migration and produces a serious impact on the performance of rights of migrants[31].
The Working Group on Arbitrary Detention has emphasized that “criminalizing the irregular entry pathways in the territory of a State exceeds the legitimate interest of States to control and regulate illegal immigration and leads to unnecessary arrests[32]." Likewise has ruled the Inter-American Court of Human Rights and the Court of Justice of the European Communities[33]. These practices violate the principle of non-discrimination to promote xenophobia and racism, and legitimize practices of exclusion and discrimination against a particular social group, contributing to an incorrect association between irregular migration and crime[34].

[1]Committee on Migrant Workers, General Comment No. 2 on the Rights of Migrant Workers in an Irregular Situation and Members of their Families, CMW/C/GC/2, 28 of August of 2013, para 26.

[2] IACHR, “Report on Immigration in the United States: Detention and due Process”, OEA/Ser.L/V/II. Doc. 78/10, 30/12/2010. § 38.

[3] Special Rapporteur on the human rights of migrants, A/HRC/20/24, 2nd of April 2012, para 68

[4] Resolution 20 December 2012, A/RES/67/172, “Protection of migrants”, article 4.d

[5] Special Rapporteur on the human rights of migrants, 2012, para 50

[6] Special Rapporteur on the human rights of migrants, 2012, para 56

[7] MWC, General Comment No.2, quoted, para 26

[8] Human Rights Committee, 2012, Report of the Special Rapporteur on the human rights of migrants, A/HRC/20/24, 2nd of April 2012 §48-50

[9] Special Rapporteur on the human rights of migrants, 2012, para 53

[10]IACHR, OC-18/03, quoted, § 124-127; Inter-American Commission of Human Rights, cases: Andrea Mortlock (United States), Report No. 63/08, Case No. 12.534, July 25 2008, § 83; Juan Raul Garza C. United States, Report Nº 52/01, April 4 2001, § 88-89; Report No. 56/06 (admissibility), Case No. 12.562, July 20 2006 § 51.

[11]Inter-American Court of Human Rights, case Nadege Dorzema c. Dominican Republic, para 157; case Pacheco Tineo c. Bolivia, para 130

[12] Working Group on Arbitrary Detention, deliberation No.5 principles 1 and 8; Principles and Best Practices on the Protection of Persons Deprived of Liberty, principle 10

[13] International Covenant on Civil and Political Rights, article 9, para 2, Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, article 16, § 5. Committee on Migrant Workers, General Comment No. 2, quoted, para 28;Principles and Best Practices on the Protection of Persons Deprived of Liberty, principle 13. Inter-American Court of Human Rights, case Pacheco Tineo, quoted, para 133

[14] International Law Commission, Expulsion of Aliens, text of the projects of articles approved provisionally in first reading for the Drafting Committee, 64th Session period, UN DOC A/CN4/L.797, 24 de mayo de 2012, articles 19 and 26. Inter-American Court of Human Rights, case Nadege Dorzema, quoted, para 163

[15] Human Rights Committee, Report of the Special Rapporteur on the human rights of migrant, A/HRC/20/24, 2nd April 2012 §15-20; Committee on Migrant Workers, General Comment No. 2, quoted, para 41. At a regional level, Inter-American Court of Human Rights, Case Vélez Loor v Panamá, Sentence of 23rd November 2010, §107; Case Nadege Dorzema and others v Dominican Republic, Sentence of 24 October 2012. §137; Case Pacheco Tineo, quoted, para 133.

[16] Committee on Migrant Workers, General Comment No. 2, quoted, para 30;Principles and Best Practices on the Protection of Persons Deprived of Liberty, principle 16.2; Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, art. 16; the Special Rapporteur on the human rights of migrant, 2012, para 20; Committee on Migrant Workers, General Comment No. 2, quoted, para 31. In the context of the Inter-America see: Inter-American Court of Human Rights, Consultative opinion n. 16, quoted, para 106; case Velez Loor, quoted, para 153 y Inter-American Court of Human Rights, case Nadege Dorzema, quoted, para 166.

[17] Special Rapporteur on the human rights of migrant, 2012, para 21

[18] Special Rapporteur on the human rights of migrant, 2012, para 23

[19] Committee on the Rights of the child of the United Nations, “Background Paper “,prepared for the Day of General Discussion “The Rights of All Children in the Context of International Migration”, on 28/09/2012.

[20] Committee on the Rights of the child of the United Nations, “Background Paper “, quoted. Report of the Special Rapporteur on the human rights of migrant, 2009; OHCHR, Study of the Office of the United Nations High Commissioner for Human Rights on challenges and best practices in the implementation of the international framework for the protection of the rights of the child in the context of migration, A/HRC/15/29, 5th July 2010. UNICEF, “Observación Escrita de UNICEF sobre Niñez Migrante en América Latina y el Caribe”, in the framework of the Consultative Opinion about migrant children presented by Argentina, Brazil, Paraguay y Uruguay before the Inter-American Court of Human Rights, 2013.

[21] Committee on the Rights of the Child, General Comment No. 6, para 61;Special Rapporteur on the human rights of migrant, 2012, para 41; Committee on Migrant Workers, General Comment No. 2, quoted, para 44

[22] Committee on Migrant Workers, General Comment No. 2, quoted, para 44

[23] OHCHR, Study of the Office of the United Nations High Commissioner for Human Rights on challenges and best practices in the implementation of the international framework for the protection of the rights of the child in the context of migration, quoted, § 24. Also, European Court of Human Rights, Popov v. France, 39472/07 and 39474/07, 19 January 2012.

[24]UNICEF, “Children in the Context of Migration and the Right to Family Life”, presented before the CRC in the framework of the Days of General Discussion “The Rights of All Children in the Context of International Migration”, held in Geneva on 28/09/2012.

[25] Special Rapporteur on the human rights of migrant, 2009, para 87

[26] MWC, Concluding Observations: México, CMW/C/MEX/CO/1, of 8 December 2006, paras 14-15; MWC, General Comment No. 2, quoted, para 24; Special Rapporteur on the human rights of migrant, E/CN.4/2003/85, § 43 and 73. See also, A/HRC/7/12, 25 February 2008, §, 15, 19, 42 and 43; Special Rapporteur on the human rights of migrant, A/HRC/17/33, 2011, para 19. At a regional level, see European Court of Justice (ECO), case “El Dridi vs. Italia”, C-61/11, sentence of 28/04/2011 §10.4.

[27] Special Rapporteur on the human rights of migrant workers, Report 2012; Inter-American Court of Human Rights, case Velez Loor c. Panama, quoted, para 171; case Pacheco Tineo c. Bolivia, quoted, para 131.

[28]HRC, “Article 9(1) ICCPR is applied to all forms of deprivation of liberty, inclusive on immigration” General Comment Nº 8, “ICCPR General Comment No. 8: Article 9 (Right to Liberty and Security of Persons),” 30 June 1982 §1; Council of Human Rights Special Rapporteur on the human rights of migrant, Report 2012, François Crépeau A/HRC/20/24, 2 April 2012, §1-2. In IACHR, “Report on Immigration in the United States: Detention and due Process”, OEA/Ser.L/V/II. Doc. 78/10, 30/12/2010. § 232.

[29]Committee of Human Rights, 2012, Special Rapporteur on the human rights of migrant, A/HRC/20/24, 2 April 2012 §8; Working Group on Arbitrary Detention, A/HRC/7/4 10 January 2008 §53

[30] MWC, Concluding Observations Morocco, CMW/C/MAR/CO/1, 8 October 2013 §26; IACHR “Case Vélez Loor vs. Panamá”, sentence on 23/11/2010, § 251

[31] The General Assembly as stated the preoccupation for measures and practices that may restrict the human rights and fundamental freedoms of migrants, and reaffirms that, when exercising their sovereign right to enact and implement migratory and border security measures”

[32] Council of Human Rights Special Rapporteur on the human rights of migrant, Report 2012, François Crépeau A/HRC/20/24, 2 April 2012, § 13. IACHR, Advisory Opinion OC-18, Juridical Condition and Rights of the Undocumented Migrants, 17 September 2003. §100 y 101.

[33]ECJ, El Dridi vs. Italia, quoted. IACHR, Velez Loor vs. Panamá, quoted.

[34] MWC, General Comment Nº 2, quoted, §18–20; HRC, case “Williams Lecraft vs. Spain”, communication 1493/2006, decision of 17/08/2009; Special Rapporteur on the human rights of migrants, Gabriela Rodríguez Pizarro, E/CN.4/2003/85, 3 December 2002 y 10 November 2003: CERD, General Comment No. 30: Discrimination Against Non-Citizen, 1 October 2004, §19.