A/HRC/37/50
pushed growing numbers of migrants outside official immigration and admission procedures
and towards irregular routes and methods marked by lack of transparency and oversight,
corruption, violence and abuse. In response to increasing numbers of such "irregular"6
migrants arriving at their borders, many States have initiated an escalating cycle of repression
and deterrence designed to discourage new arrivals, and involving measures such as the
criminalisation and detention of irregular migrants, the separation of family members,
inadequate reception conditions and medical care, and the denial or excessive prolongation
of status determination or habeas corpus proceedings, including expedited returns in the
absence of such proceedings. Many States have even started to physically prevent irregular
migrant arrivals, whether through border closures, fences, walls and other physical obstacles,
through the externalisation of their borders and procedures, or through extra-territorial
"pushback" and "pullback" operations, often in cooperation with other States or even nonState actors. In addition to their direct impact on the rights and safety of irregular migrants,
these laws, policies and practices have also given room to an almost uncontrolled growth of
abusive practices on the part of a wide variety of individuals seeking to exploit irregular
migration for personal gain, including corrupt State officials, criminals and private citizens.
9.
As a consequence, throughout their journey and even upon arrival at their country of
destination, irregular migrants experience increasing uncertainty, danger, violence and abuse,
including an escalating prevalence of torture and ill-treatment at the hands of both State
officials and non-State actors. Numerous studies have shown that, apart from often-lifelong
physical effects, torture survivors suffer disproportionately from posttraumatic stress
disorder (PTSD), anxiety, depression, disassociation, disorientation and self-isolation, with
grave long-term consequences.7 According to a study involving more than 12'000
participants, depending on the context, the confirmed prevalence of torture victims among
irregular migrants ranges up to 76%, with the overall average being 27%.8 Even when
discounting widespread underreporting and focusing exclusively on recognized refugees and
asylum seekers, this extrapolates to a staggering 7 million victims of torture, thus raising
serious questions as to the compatibility of current laws, policies and practices with the
universal prohibition of torture and ill-treatment.
10.
In addressing this trend, the present report aims to: (a) recall the broad range of
international legal obligations flowing from the prohibition of torture and ill-treatment; (b)
examine the legal implications of these obligations for some of the most prevalent laws,
policies and practices employed by States in response to irregular migration; and (c) provide
recommendations with a view to supporting States in addressing irregular migration in full
compliance with these obligations, avoiding protection gaps and preventing impunity for
violations. Given that the discussed policies and practices are generally well documented in
the public domain, and in order to avoid any perception of contextual bias, reference to
individual State practice and related jurisprudence will be made only in support of points of
law and not, in principle, in support of points of fact.
B.
Legal Framework
11.
The absolute and non-derogable prohibition of torture and ill-treatment has been
codified in a wide range of universal and regional instruments and, today, is recognized as
part of customary international law. Furthermore, the prohibition and its applicability “at any
6
7
8
4
The term "irregular migrants" or, more accurately, "migrants in irregular situations", includes all
migrants failing to comply with the regular domestic immigration legislation of their current transit or
destination State, including asylum-seekers.
Heeren, Mueller, et al., "Mental_health_of_asylum-seekers:_a_crosssectional_study_of_psychiatric_disorders", BMC_Psychiatry(2012),_12:114; Carswell, Blackburn,
Barker, "The_relationship_between_trauma,_postmigration_problems_and_the_psychological_wellbeing_of_refugees_and_asylum_seekers", Int'l
Journal of Social Psychiatry, 2011_Mar; 57(2):107-19.
Sigvardsdotter et al, "Prevalence_of_torture_and_other_warrelated_traumatic_events_in_forced_migrants:_A_systematic_review", in: TORTURE, Vol. 26,_No.
2(2016), pp. 41-73.