By resolution 1997/50, the Working Group was requested by the Commission to devote all necessary attention to reports concerning the situation of immigrants and asylum- seekers who are allegedly being held in prolonged administrative custody without the possibility of administrative or judicial remedy.
In the light of the experience gained from its missions carried out in this framework, the Working Group took the initiative to develop criteria for determining whether or not the deprivation of liberty of asylum seekers and immigrants may be arbitrary.
After consultation, in particular with the Office of the United Nations High Commissioner for Refugees, the Working Group, in order to determine whether the above situations of administrative detentions were of an arbitrary nature, adopted the following deliberation:
Deliberation No. 5
For the purposes of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment:
The term "a judicial or other authority" means a judicial or other authority which is duly empowered by law and has a status and length of mandate affording sufficient guarantees of competence, impartiality and independence.
House arrest under the conditions set forth in deliberation No. 1 of the Working Group (E/CN.4/1993/24, para. 20) and confinement on board a ship, aircraft, road vehicle or train are assimilated with custody of immigrants and asylum-seekers.
The places of deprivation of liberty concerned by the present principles may be places of custody situated in border areas, on police premises, premises under the authority of a prison administration, ad hoc centres (centres de rétention), so called international or transit zones in ports or international airports, gathering centres or certain hospital premises (see E/CN.4/1998/44, paras. 28-41).
In order to determine the arbitrary character of the custody,
the Working Group considers whether or not the alien
is enabled to enjoy all or some of the following guarantees:
I. GUARANTEES CONCERNING PERSONS HELD IN CUSTODY
Principle 1: Any asylum-seeker or immigrant, when held for questioning at the border, or inside national territory in the case of illegal entry, must be informed at least orally, and in a language which he or she understands, of the nature of and grounds for the decision refusing entry at the border, or permission for temporary residence in the territory, that is being contemplated with respect to the person concerned.
Principle 2: Any asylum-seeker or immigrant must have the possibility, while in custody, of communicating with the outside world, including by telephone, fax or electronic mail, and of contacting a lawyer, a consular representative and relatives.
Principle 3: Any asylum-seeker or immigrant placed in custody must be brought promptly before a judicial or other authority.
Principle 4: Any asylum-seeker or immigrant, when placed in custody, must enter his or her signature in a register which is numbered and bound, or affords equivalent guarantees, indicating the person's identity, the grounds for the custody and the competent authority which decided on the measure, as well as the time and date of admission into and release from custody.
Principle 5: Any asylum-seeker or immigrant, upon admission to a centre for custody, must be informed of the internal regulations and, where appropriate, of the applicable disciplinary rules and any possibility of his or her being held incommunicado, as well as of the guarantees accompanying such a measure.
II. GUARANTEES CONCERNING DETENTION
Principle 6: The decision must be taken by a duly empowered authority with a sufficient level of responsibility and must be founded on criteria of legality established by the law.
Principle 7: A maximum period should be set by law and the custody may in no case be unlimited or of excessive length.
Principle 8: Notification of the custodial measure must be given in writing, in a language understood by the asylum-seeker or immigrant, stating the grounds for the measure; it shall set out the conditions under which the asylum-seeker or immigrant must be able to apply for a remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure and, where appropriate, order the release of the person concerned.
Principle 9: Custody must be effected in a public establishment specifically intended for this purpose; when, for practical reasons, this is not the case, the asylum-seeker or immigrant must be placed in premises separate from those for persons imprisoned under criminal law.
Principle 10: The Office of the United Nations High Commissioner for Refugees (UNHCR), the International Committee of the Red Cross (ICRC) and, where appropriate, duly authorized non-governmental organizations must be allowed access to the places of custody.