When the COVID-19 pandemic hit in March 2020, 59 migratory detention centers were in operation across Mexico. These detention centers called “Estaciones Migratorias” have historically been criticized for being overcrowded, filthy and often lacking sufficient access to basic necessities such as water, food and healthcare. These centers remained open at the start of the pandemic, with no changes to their operation to help prevent the spread of the disease and death.
This blog summarizes the Council’s legal intervention in a case brought against the Mexican Government demanding the release of all people held in detention centers during the pandemic. It explores the standards of international law regarding detention and the alternative measures to detention that countries across the world are beginning to implement as part of their obligation to consider detention as a last resort.
Throughout the COVID-19 pandemic, wars, persecution, discrimination and climate-related emergencies continued to force people to leave their homes. People on the move, or detained in settings across the world, were particularly exposed to the risk of contracting COVID-19.
On March 30 2020, all non-essential activities in Mexico were suspended and the following agreement was published in the Official Gazette of the Federation: Agreement establishing extraordinary actions to address the health emergency generated by the SARS CoV 2 virus (Extraordinary Actions Agreement). This document ordered the suspension of all non-essential activities excluding those necessary to ensure public safety in order to try and control the spread of COVID-19.
Despite the risk of keeping refugees and asylum seekers in detention centers without any adjustments to avoid contagion, no plans to avoid further detentions or any extraordinary measures were announced. The National Migration Institute (INM) still reported having 3,059 detainees in 59 detention centers in March 2020.
On April 15 2020, three Mexican organizations dedicated to the defense of human rights initiated a lawsuit filed in Mexican District Courts demanding, among other things, the immediate release of all migrants held in the detention centers run by the INM. They argued that migratory detention is not a necessary security measure that excluded it from being suspended under the Extraordinary Actions Agreement.
The organizations bringing the claim (the claimants) approached the Council to intervene as amicus in this case. Specifically the Council provided the Court with critical information on the relevant international law obligations to which the Mexican State is subject.
The Council supported the case by providing objective legal advice on the interpretation of international law regarding the detention of refugees and migrants. It clarified that to deprive someone of their liberty is an extraordinarily punitive measure that must always be justified and regulated. States have the obligation to make sure their laws and policy contain the appropriate measures to protect people from being detained arbitrarily. Detention for immigration reasons should not be the exception.
Given the highly contagious nature of COVID-19 and the conditions in which detainees were forced to live during the pandemic, the Council also focused its intervention on Alternatives to Detention (ATD) which encompass non-custodial forms of case management. You can find the full amicus brief here.
The amicus provided by the Council argued that Mexico had violated the following principles of international law:
There are various types of ATDs including engagement and community-based alternatives such as case management and other forms of support that enable people in mobility situations to live in freedom, as well as alternatives based on the application of laws. Examples include supervision requirements such as periodic appearance or fixed residence, or the offer of a bond or guarantee that obliges the person to attend appointments and hearings.
In this case, the claimants successfully showed, taking into account our amicus, that the detention of migrants in Mexico are not individually assessed by any authority. Consequently the specific vulnerabilities of each person and the possible ATDs that could be applied in each case had not been taken into account (or were not known). This was especially relevant for the populations that may be more susceptible to infection in the context of the pandemic.
The United Nations Working Group on Arbitrary Detention in its Deliberation No. 11 emphasized the importance of conducting this vulnerability analysis, since failure to do so renders detention arbitrary because it is unnecessary and disproportionate.
Although this case specifically concerns Mexico’s practices of detention and associated lack of consideration of ATDs, it highlights an important principle that applies across the world: that detention should only be a last resort after all ATDs have been properly considered.
Alternatives to detention, especially community-based alternatives, allow people to integrate sooner into the society in which they seek to settle. When people are deprived of their liberty, they are unable to access basic necessities such as work, education and medical services that enable them, at a minimum, to survive and ultimately help them rebuild their lives.
Although small in scale currently, there are positive examples of ATDs in use in other countries that show promising movement towards ATDs and away from detention:
We hope the judgment in this case, taking account of our submissions, will set a positive precedent for the rights of refugees and migrants at risk of detention: Arbitrary detention like that seen by Mexico during COVID-19 is unacceptable and more broadly, the intervention seeks to encourage Mexico and other countries to review and implement ATDs.
In the face of changing migration patterns that include women, children and people in vulnerable conditions, against a backdrop of new, emerging contexts not lived through before – like the COVID-19 pandemic – ATDs are of vital importance. Not only are they necessary to consider under international law as part of a thorough analysis of other options in order to avoid arbitrariness, they are arguably the humane response to people who have already overcome danger, fear and persecution once.
Lawyers working on the case provided the following testimonial: “The support of the Council has been very important for the case. The judges will now take into account an international perspective on the matter and the repercussions on the health of migrants in detention. Very useful technical information has been provided for judges not specialized in migration issues.”
If you would like to request support from the Council with regards to any litigation or advocacy that you are working on, please complete this form and a member of our team will be in touch.