Inter-American Court of Human Rights Rules on Irregular Migrants' Rights

We conclude this year with some good news from the Inter-American Court of Human Rights in Costa Rica, which just handed down a landmark case regarding the human rights of irregular migrants.

In the case Vélez Loor v. Panamá, published 10 December 2010, the Court held that Panamá was liable for a breach of the American Convention on Human Rights for the deprivation of liberty of the plaintiff, who was an irregular Ecuadorian migrant (see here for the judgment and here for the press release, both in Spanish).

The Court emphasized that while States are allowed to establish mechanism to control the incoming migrant flows, such mechanisms must not infringe the American Convention on Human Rights. In this regard, the Court ruled, among other things, on the incompatibility of a Panamanian act providing for a prison sentence against repeated irregular migrants. The Court held that States could, in principle, use the detention measures against irregular migrants but only subject to strict conditions. More specifically, the Court required that the detention is necessary and proportionate to ensure the migrant’s participation in the relevant legal proceedings or, if applicable, to ensure the implementation of the deportation order. Hence, migration policies whose central element was the mandatory detention of irregular migrants were held to be arbitrary and thus incompatible with the Convention. Also, the Court underscored that the competent authorities must verify in every individual case the possibility to use less restrictive measures.

This judgment is very timely, given that a number of States are currently considering to put more “teeth” to their migration policies and to criminalize irregular migration. It may also provide some inspiration for the European Court of Human Rights, which has, so far, taken a rather cautious stance on the human rights of irregular migrants – especially regarding detention measures – and has, in the view of many, overly emphasized the States’ sovereignty regarding migration issues.