1. Detention as a last resort
Deprivation of liberty under aliens legislation should only be a measure of last resort, after
a careful and individual examination of each case. In addition, the continued need for it
should be the subject of periodic review. Alternative (non-custodial) measures should be
developed and used wherever possible.4
Whenever asylum seekers are deprived of their liberty, as an exceptional measure,
pending the outcome of their application, they should be afforded a wide range of
safeguards in line with their status, going beyond those applicable to irregular migrants and
should be kept separately from foreign nationals who have not lodged an application for
If members of the same family are detained under aliens legislation, every effort should be
made to avoid splitting up the family.6
The CPT is of the view that the prolonged detention of persons under aliens legislation,
without a time limit and with unclear prospects for release, could easily be considered as
amounting to inhuman treatment.7
2. Safeguards during detention
Every instance of deprivation of liberty should be covered by a proper individual detention order,
readily available in the establishment where the person concerned is being held; and the
detention order should be drawn up at the outset of the deprivation of liberty or as soon as
possible thereafter. This basic requirement applies equally to irregular migrants who are deprived
of their liberty. Further, the fundamental safeguards of persons detained by law enforcement
agencies are reinforced if a single and comprehensive custody record is kept for every such
person, recording all aspects of his/her custody and all action taken in connection with it.8
Detained irregular migrants should, from the very outset of their deprivation of liberty,
enjoy three basic rights, in the same way as other categories of detained persons. These
rights are: (1) to have access to a lawyer, (2) to have access to a medical doctor, and (3) to
be able to inform a relative or third party of one’s choice about the detention measure.9
The right of access to a lawyer should include the right to talk with a lawyer in private, as
well as to have access to legal advice for issues related to residence, detention and
deportation. This implies that when irregular migrants are not in a position to appoint and
pay for a lawyer themselves, they should benefit from access to legal aid.10
All newly arrived detainees should be promptly examined by a doctor or by a fully-qualified
nurse reporting to a doctor.11
Notifying a relative or third party of one’s choice about the detention measure is greatly
facilitated if irregular migrants are allowed to keep their mobile phones during deprivation
of liberty or at least have access to them.12
Malta: 2004 visit, paragraph 14; Serbia and Montenegro: 2004 visit, paragraph 65.
19th General Report on the CPT’s activities, paragraph 76; Spain: 2014 visit, paragraph 9.
6 Germany: 2005 visit, paragraph 56; 19th General Report on the CPT’s activities, paragraph 87.
7 Bulgaria: 2008 visit, paragraph 29.
8 19th General Report on the CPT’s activities, paragraph 85.
9 19th General Report on the CPT’s activities, paragraph 81.
10 19th General Report on the CPT’s activities, paragraph 82.
11 19th General Report on the CPT’s activities, paragraph 82.
12 19th General Report on the CPT’s activities, paragraph 82.