...continued

VII.     DETENTION CONDITIONS

101.   Unfortunately comparative little information is available on the conditions faced by detained migrant workers and members of their families in the Americas. Press articles and NGO reports are the only source of information. Among the latter, Human Rights Watch published a report in 1998 on the conditions facing asylum seekers and migrant workers detained in the United States. [77] Recently, the Regional Network of Civil Organizations for Migrations (RNCOM) published a comprehensive report on the migration situation in North and Central America with a wealth of information comparing detention conditions in 11 countries. [78] The Seminar on Minimum Standards and Procedures for the Protection of the Human Rights of Migrants in Situations of Arrest, Detention, Deportation and Reception, held in Guatemala during the year 2000, generated similarly valuable information. In that meeting, the Group Sin Fronteras distributed a questionnaire to country representatives with the purpose of gathering information on the conditions that detained migrant workers face in the countries of Central and North America. This section of our report is based on information contained in the above-mentioned documents.

102.   We should start out by indicating that the country responses to the Sin Fronteras questionnaire lead to the conclusion that detention conditions of migrants are extremely deficient in most countries. This is underscored by the fact that countries admit that many migrants are held in regular prisons where deplorable conditions reign, with the exception of Canada and to a lesser extent the United States. Reliable information on South America is not available and our comments here refer only to the situation of migrant detainees in Central and North America and the Dominican Republic.

103.   Migrant workers and members of their families may find themselves detained in countries of destination or transit for breaking the law, for trying to enter with false documents, or for being undocumented. [79] As a general rule, the detention of migrant workers puts the authorities in a predicament, as the extra burden it places on the legal system simply cannot be borne by many countries.

104.   The situation faced by migrant workers who have broken the law is usually similar to that of the rest of the population in prison for criminal offenses (although at times it may be worse due to discrimination directed against them by the other inmates and by prison authorities). The most serious situation, however, is that faced by migrants detained for irregular status. Unlike those who have broken the law, these migrants are detained for administrative and not criminal reasons. In other words, the authorities do not arrest them to bring charges of alleged criminal activity or to make them serve out a sentence, but in order to resolve their immigration status. This means that after detaining them, the authorities either officially classify them as immigrants and provide them with the appropriate documentation, or deport them to their country of origin or to a third country that is willing to accept them. In some cases, however, migrant workers without proper authorization remain under detention. This may be due to various factors, such as: (a) an appeal against deportation may have been filed; (b) consular officials may not have been able to verify the nationality of the detainee; (c) the country of origin may have refused acceptance, or (d) the receiving country may not have the means to finance the deportation. [80]

105.   There is scant information on the number of migrant workers detained annually in the Americas, although one can assume that the number is quite high. US authorities, for example, report that they carry out some 1.6 million arrests every year. Since many individuals are arrested two, three or more times trying to enter the United States, it is difficult to come up with the exact number of individuals detained. [81] As a point of reference, according to the United States Committee for Refugees (USCR) the INS detained 200,000 people last year. [82]

106.   At any rate, most of the countries in our hemisphere, including the wealthiest ones, simply do not have sufficient resources, infrastructure or personnel to efficiently process the hundreds of thousands of cases of migrant workers detained for lack of documentation. But although scant resources are an impediment, perhaps the real problem is the criminalization of unauthorized migrants. It is regrettable, but governments often intentionally treat undocumented migrant workers as criminals because they want to discourage foreigners from entering the country. The logic followed by many countries of destination and transit is that any leniency towards people trying to enter without adequate documentation would only encourage others to do the same. Thus, they conclude that a hard-line, inflexible response will discourage and scare off potential immigrants.

107.   Such a mindset manifests itself from the very moment that an unauthorized migrant is detained. This means that in North America, Central America and the Dominican Republic, migrant workers are arrested with a display of roughness and at times even of violence. At times they are struck, insulted and/or handcuffed. Often the authorities do not read them their rights or tell them why they are being arrested. Moreover, it is all too common that officials with no express power or authority to do so carry out arrests, often with the sole goal of extorting money. Furthermore, authorities do not always follow specific criteria in intercepting persons suspected of having crossed the border without the required documentation. Much to the contrary, all too often they stop people on the basis of appearance, clothing, language or even smell, which quite obviously shows an alarming degree of discrimination. [83]

108.   Once arrested, migrants are handcuffed and taken to a police station or a temporary detention center where they are booked. Most are then sent to regular jails. Detainees are almost always separated from their families and their personal effects are often confiscated or even stolen by abusive officials. [84]

109.   It is important to indicate that Confronted with the problem of having to detain a large number of persons when prisons are already overcrowded and no special centers exist, states often resort to the use of substandard facilities. Undocument migrant workers are held in a variety of settings, including special detention centers, migration offices, sports stadiums, gymnasiums and hotels. Most migrant workers, however, are put into a jail of one kind or another. In 1998, Human Rights Watch reported that 60% of all immigrants detained for administrative reasons in the United States, the richest country of the Americas, were sent to regular prisons. [85] No reliable information is available on the situation in other countries.

110.   It is our opinion that, even in the worst cases, undocumented immigrants do nothing more than transgress administrative regulations. They are not criminals nor are they suspected of any crime. They should be held in detention centers and not in regular prisons. Migrant workers and their families should be kept together in relatively open facilities and not in cells. They should have access to libraries, recreation and health care. They should have the right to go outside at least one hour per day. Such detention centers should also make available legal manuals in various languages with information on the legal situation facing the detainees and a list of names and telephone numbers of legal counsel and organizations that they can contact for assistance, if they so desire.

111.   However, the situation described above is far from being the norm. Migrant workers are usually sent to jails with substandard conditions where their health and even lives may be at risk. This office is greatly concerned to see that all too often immigration authorities, who are ultimately responsible for the welfare of migrant workers, do not even monitor detention centers to ensure that conditions are adequate. There are even examples of gross negligence when immigration authorities lose track of certain detainees, who then end up being held for extensive periods of time while their cases are left pending. Here we see how immigration authorities wrongly shift responsibility for the welfare of detained migrant workers to prison authorities. It must be pointed out that the latter do not usually receive any training in human rights or the rights of migrants, and do not know how to deal with persons under administrative detention.

112.   Once interned in a penitentiary, migrant workers are subjected to endless abuse at the hands of prison authorities. Guards often rob, hit and subject them to cruel punishment. This is all the more true with foreigners who do not speak the language and thus find it difficult to grasp prison rules or communicate with authorities. In open violation of their rights, undocumented migrant workers are housed with common criminals, many of whom are serving time for serious crimes such as homicide, rape or armed robbery. Minors often suffer the same fate, held in prisons for adults. Inside such prisons, convicts are commonly organized into gangs that extort, rob, beat and at times even murder migrant workers.

113.   In addition to abuse at the hands of authorities and inmates alike, migrant worker detainees must also put up with deplorable physical conditions. Like other inmates, they are packed into small cells without adequate lighting or ventilation. Conditions may be so bad as to pose a health risk. Human beings share cells with mice and bugs, bathrooms are never properly disinfected and poor handling of food spreads infection and illness. Migrant workers are not allotted clothing, toiletries or bedding. More serious is the fact that detainees often have no access to health care services. In a large number of prisons there is no doctor or infirmary and inmates are not provided with medication. In many penitentiaries, inmates with contagious diseases such as AIDS, tuberculosis or hepatitis are not isolated from other prisoners.

114.   Migrant workers are not given the opportunity to exercise or partake in recreational activities. They encounter difficulties in communicating with their families or legal counsel. Visitation requests are often denied, telephones not available and severe restrictions on sending and receiving correspondence enforced.  Furthermore, migrant detainees may be transferred often and without warning, causing them to lose contact with family and legal counsel.

115.   The above-mentioned conditions endured by migrant workers and members of their families are an indication that countries are systematically violating basic human rights norms. As we have pointed out, the detention of migrants comes under administrative law. This means that it is civil in nature and should never be seen as punishment. It is indeed unfortunate that a large majority of American states have no clear standards on the detention of migrant workers and asylum seekers. [86] The Office of the Special Rapporteur would like to point out that the United States recently adopted standard rules on the detention of such persons. We think that is a positive development that deserves to be emulated elsewhere.

116.   There are general international instruments that extend protection to migrant workers and other irregular migrants when detained. Article 10(1) of the International Covenant on Civil and Political Rights states, “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” [87] Along the same lines, the Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment prohibits persons deprived of liberty from being subjected to torture or cruel and degrading treatment. [88] Moreover, the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights all prohibit any violation of the human rights of persons deprived of their liberty. [89]

117.   Furthermore, there are various specific norms setting minimum standards for the treatment of persons deprived of their liberty. These include the Standard Minimum Rules for the Treatment of Prisoners and the Basic Principles for the Treatment of Prisoners. [90] The latter agreement has earned near universal recognition as it contains principles made binding by human rights treaties. In regard to the treatment of detainees, some of the main rules set out in the Standard Minimum Rules are: (a) separation by sex, age and criminal record; (b) the right to be informed of all rights in a language the detainee understands; (c) the right to communicate with and receive visits from consular representatives, legal counsel and family; (d) access to medical treatment in case of illness; (e) the right to one hour of exercise in the open air per day; (f) prohibition on the use of handcuffs, chains, irons and strait-jackets. These principles were reinforced in 1988 with the UN General Assembly’s approval of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. [91]

118.   In summary we can say that, in spite of a scarcity of information, it is possible to say that the conditions faced by detained migrant workers in Central America, North America and the Dominican Republic give rise to concern. Migrant workers are subjected to abuse and are kept in deplorable physical conditions. This is especially true when they are kept in regular prisons, which is incompatible with their legal situation. This office notes with concern that the general situation faced by migrant workers and members of their families when detained is critically substandard. And this is so in spite of the fact that some countries have signed international agreements on, or recognized the validity of universal rules for, the treatment of persons deprived of their liberty.

119.   In order to present a comprehensive picture of the conditions faced by migrant workers and their families in detention, this office will send out a new questionnaire to governments of the region. In it we will request information on the number of migrant workers detained and how they are treated in detention. Special attention will be given to obtaining information from the countries of South America, as that is the information currently most lacking. We are especially interested to learn of the existence and effectiveness of any government measures for the monitoring of prison conditions and how they are applied to persons detained due to their immigration status. With more information in hand, we would be in a better position to make practical recommendations. The Office of the Special Rapporteur will also look into the possibility of gathering information from organizations active in the field, such as churches and human rights NGOs.

VIII.    COUNTRY RESPONSES TO THE QUESTIONNAIRE SENT OUT BY THE OFFICE
            OF THE SPECIAL RAPPORTEUR ON MIGRANT WORKERS

120.   Two years ago we sent out a comprehensive questionnaire to all OAS members states with the purpose of gathering information on the situation of migrant workers and members of their families in the Americas. The questions covered various areas, including demographic trends, xenophobia, equality before the law, illegal trafficking, judicial guarantees and due process, payment of taxes and access to social services. Of the 35 states to which the questionnaire was sent, only 15 responded (Bolivia, Brazil, Canada, Costa Rica, Ecuador, Guatemala, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Trinidad and Tobago, United States and Venezuela). Chile, Grenada and St. Lucia also returned the questionnaire but without answering all of the questions. [92] This report presents, for the first time a preliminary analysis of the responses.

121.   Although we still lack information from some countries, the responses received do allow for an initial understanding of the trends taken by the countries regarding the human rights of migrant workers and members of their families. As we stated in our introduction, countries of destination, transit and origin have varying interests. Worried by growing numbers, countries of destination (or reception) tend to stress the need to rationalize immigration, especially that of undocumented persons. Countries of transit likewise feel uneasy with the growth in migratory flows and join in the call for discussion on ways to treat the problem. Countries of origin, however, protest violations of the human rights of their nationals in countries of destination and call for discussion on how to combat such abuse.

122.   One impression that immediately emerges is that countries have extremely limited knowledge of the real magnitude of migratory flows, especially flows of undocumented persons. The United States and Canada are exceptions to a certain degree, but most states have little information on undocumented persons who enter and remain in the country. This is in effect an admission that their knowledge is limited. The Office of the Special Rapporteur must welcome the announcement made at the last RCM of a project to gather statistical data on migration in Central America, [93] to be carried out in conjunction with the IOM and ECLAC/CELADE.

123.   In regard to the content of responses, certain ideas are shared in spite of countervailing interests. Most countries are concerned by the growing presence of criminal organizations trafficking in human beings. A significant number of respondents (Canada, Ecuador, Guatemala, Honduras, Mexico and United States) reports that such organizations currently operate in their territory. Since such groups contribute to increasing the magnitude of the problem and often are a direct threat to the physical integrity of migrant workers and members of their families, countries agree that urgent measures against them are needed. This shared concern, however, seems to derive from the desire that many governments have to include migration as a subject to be discussed under public security and not under national human rights policy.

124.   A large number of countries also express concern that a growing number of people are using their territory as a place of transit. The governments of Bolivia, Ecuador, Brazil, Colombia, Honduras, Guatemala, Mexico and the United States report that persons from other countries of the Americas and from elsewhere cross their borders with the intention of continuing on to another country of destination.

125.   There is near unanimity in recognizing that unscrupulous businessmen take advantage of vulnerable migrant workers, especially the undocumented, for their own profit, exploiting them to the point of openly breaking labor law. A large majority report that national legislation is in place to punish employers that defraud or exploit migrant workers, but the reality would seem to indicate that such provisions are not effective.

126.   Another clear trend can be seen in regard to legislation on migrant workers. Most countries in our hemisphere have modern and rather generous laws in place, at least formally. Many countries report that by law they provide judicial guarantees and due process for all migrant workers whatever their legal status. Moreover, many also say that migrant workers, including the undocumented, have access to social welfare benefits such as emergency health care and schooling for their children. Nevertheless, personal testimony and dozens of reports from diverse organizations indicate otherwise. The end result is a picture of fairly advanced legislation for the protection of the basic rights of migrant workers and members of their families existing side by side with systematic and serious violations of the rights of this group of people. [94]

127.   One characteristic that clearly stands out is related to discrimination and xenophobia against migrant workers and members of their families. The majority of the countries reporting emphatically deny that there are any manifestations of intolerance against migrant workers in their territory.  Many of these same countries, however, report that their citizens suffer from discrimination in other countries. In other words, while many governments say that their nationals are discriminated against elsewhere, they deny that any incidents of discrimination, racism and xenophobia occur in their own countries, in spite of accusations lodged by human rights organizations or even by other governments. The Office of the Special Rapporteur considers this contradictory attitude to be negative and problematic. It would be a positive step forward if governments could condemn discriminatory practices occurring in their own territory with the same fervor that they rightly protest abuses against their citizens committed elsewhere. Recognition on the part of governments that there is discrimination and/or acts of racism and xenophobia against migrant workers in their countries is an unavoidable prerequisite to treating the problem.

128.   In summary, responses to the questionnaire on the human rights situation of migrant workers and members of their families show that beyond certain differing views, the countries of the Americas coincide on the need to attack trafficking in migrant workers and the actions of unscrupulous employers. They also agree that the large and growing number of migrants, from the Americas and elsewhere, in transit poses a problem. The Office of the Special Rapporteur notes with grave concern that the legislation in place in most countries is not effective in extending real protection to migrant workers and members of their families, a group that faces structural vulnerability and needs government to contribute to preventing abuses against them. We are especially concerned by the fact that many governments do not recognize that violations of due process and alarming incidents of discrimination, racism and xenophobia against migrant workers and members of their family are occurring throughout the region.

IX.      CONCLUSIONS AND RECOMMENDATIONS

129.   To bring this annual report to the OAS General Assembly to a close, the Office of the Special Rapporteur would like to express its belief that the problems that led to its creation are becoming even more serious. It should be pointed out that the difficulties and challenges posed by migration in the Americas are not isolated events. They affect all parts of the world today. One conclusion of the research and debate carried out in the period covered by this report is that the phenomenon of migration in our hemisphere should continue to be a matter of deep concern to member states, the political bodies of the OAS and the Inter-American Commission on Human Rights. It has also become clear that the analyses and scientific research carried out to date, although at times rigorously done and of great value, have not been commensurate with the real demands of the situation.

1.       Thus, our first recommendation is that the General Assembly renew the mandate it gave to the Commission for the creation of the Office of the Special Rapporteur for Migrant Workers. Such an extension should be accompanied by a real effort to contribute to the corresponding voluntary fund in order to make it possible for the Commission to carry out more in-depth studies and respond positively to the numerous requests it receives to carry out field investigations. Furthermore, it is imperative that the Office of the Special Rapporteur be provided with the means to remain in close contact with immigration and border authorities in order to gain a better understanding of the real difficulties involved.

2.       This office should also maintain closer contact and coordination with other intergovernmental organizations in the field of migration. It is of vital importance for us to have closer ties to the UN Special Rapporteur on the Human Rights of Migrant Workers and with the UN Working Group of Intergovernmental Experts on the Human Rights of Migrant Workers. We intend to continue to work with and support regional forums such as the Regional Conference on Migration and the South American Conference on Migration. For our next annual report, we will examine the possibility of carrying out a study of these initiatives with a view to gauging the impact they have on the human rights of migrant workers.

3.       It is also necessary that our office have closer contacts with the numerous civil society groups that work with migrant workers and their families and help defend their rights. With this in mind, we will carry out relevant consultations on the possibility of holding a training seminar on human rights and migration open to all government employees, intergovernmental agencies and civil society representatives. We would welcome suggestions and proposals from all interested governments and organizations.

4.       We would also like to join the General Assembly in calling on member states to give serious consideration to signing the International Convention on the Protection of the Rights of all Migrant Workers and Members of Their Families. Although ratification has encountered obstacles, this instrument is the most complete and comprehensive attempt that already exists to set out binding rights and duties in this area.

5.       Without detriment to the foregoing, we also think consultations should be undertaken on the idea of drafting a similar instrument for our region, either a declaration or a multilateral treaty. Consensus building would be a prerequisite to ensure that countries of origin, transit and destination join together in signing such an instrument. With that in mind, it would not be a good idea to approach such an instrument as a response to the concerns of just one set of countries.

6.       Illegal trafficking is an ignominious exploitation of human beings. We therefore suggest that agreements on monitoring, cooperation, and transfer of evidence for use in criminal proceedings be studied and developed. Many countries, moreover, need to adjust their criminal codes to take organized crime of this nature into account, defining concepts and criminal activities not previously contemplated in domestic law. We would recommend that all countries give serious consideration to signing and ratifying the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. We also recommend the signing and ratification of the Convention against Transnational Organized Crime, already signed by 120 countries, and the two protocols additional to it-the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially in Women and Children, and the Protocol on Smuggling of Migrants Workers by Land, Sea and Air.

7.       However, an approach that focuses exclusively on suppression could actually aggravate the situation of the true victims, the migrant workers themselves. Persecution may make these “services” more expensive, and worse yet, make them more perilous to the health and lives of the victims. Moreover, emphasis on suppression should not and must not end up targeting the victims of trafficking. We thus recommend that all actions aimed at monitoring and controlling migration be accompanied by measures to attend to and safeguard victims. When the latter must appear as witnesses, their dignity should be respected at all times and a way found to facilitate their participation in the case without detaining them.

8.       Following these same ideas, we would like to express our concern about some coordinated suppression exercises that, at first glance, would seem not to be aimed at eliminating trafficking in persons, but at facilitating the collective deportation of undocumented immigrants, especially of those found on the high seas. We would like to stress that all the human rights principles covered in this report must be respected whenever migrant workers come into contact with the jurisdictional authorities of a country of which they are not citizens.

9.       Without prejudice to the right of the states under international law to decide their migration policy, the threat of prolonged and arbitrary detention cannot be used as a threat to discourage migration. Detention must be used exclusively as a tool of short duration and to facilitate return to the country of origin, however, it is not justified a general matter while the migratory status of a individual is being determined. In such cases it is necessary to find ways to guarantee that the person will appear before the authorities while leaving him in liberty. Furthermore, mechanisms to ensure that detention is used only when strictly necessary are needed, as are measures to improve the extremely substandard conditions in which migrant workers are held in the Americas.  To this end, we believe that governments must be committed to providing detained migrant workers with optimum safeguards and to treating them in accordance with the provisions of international law.

10.     Access to consular officials should be facilitated for any detained immigrant requesting it. When criminal charges are pending, the state has the duty to inform the defendant of this right under the Vienna Convention on Consular Relations and Advisory Opinion OC-16.

11.     All the principles provided for in agreements covering the Americas should be respected in any exclusion, expulsion or deportation case. The possibility of further developing the principle of due process and adapting it to the special needs of this area merits attention. We recommend that the possibility of establishing minimum standards of due process be studied, and we offer the services of the Office of the Special Rapporteur and of the Commission in discussing and drafting such standards.

12.     States must do more to combat xenophobia, racism and other manifestations of intolerance against migrant workers in the Americas. In this regard, we believe that concrete measures to foster tolerance are in order, including a comprehensive review of school curricula and the promotion of precautionary measures to prevent groups from disseminating xenophobic or racist messages. Moreover, we think that control mechanisms are needed to assure that public officials dealing with migrant workers do not discriminate in any way.

13.     On the subject of authorities, states must implement safeguards to prevent officials from abusing their authority. We are convinced that a decisive element contributing to violation of the human rights of migrant workers and members of their families is the absence of stricter controls on the behavior of authorities. Therefore, it is our opinion that closer monitoring of the actual behavior of immigration officers would reduce the number of violations of the basic rights of migrant workers in the Americas.

14.     We would underline that undocumented migrant workers from outside our region are also entitled to humane and respectful treatment. Such persons must be assured access to due process and they must not be subjected to any discrimination.  

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