Under international law, the United States is obligated to uphold noncitizens’ fundamental rights, including their rights to health. However, current US immigration laws—and their enforcement—not only fail to fulfill migrants’ health rights but actively undermine their realization and worsen the pandemic’s spread. Specifically, the US immigration system’s reliance on detention, which precludes effective social distancing, increases risks of exposure and infection for detainees, staff, and their broader communities. International agreements clearly state that the prolonged, mandatory, or automatic detention of people solely because of their migration status is a human rights violation on its own. But in the context of COVID-19, the consequences for migrants’ right to health are particularly acute. Effective alternatives exist: other countries demonstrate the feasibility of adopting and implementing immigration laws that establish far less restrictive, social services–based approaches to enforcement that respect human rights. To protect public health and realize its global commitments, the United States must shift away from detaining migrants as standard practice and adopt effective, humane alternatives—both amid COVID-19 and permanently. (Am J Public Health. Published online ahead of print April 15, 2021: e1–e7. https://doi.org/10.2105/AJPH.2021.306253 )
The COVID-19 pandemic has shined a spotlight on the fundamental incompatibility of immigration detention with health. Yet immigration detention's threats to human rights did not begin with COVID-19. International treaties are clear that detaining children based on citizenship is a violation of human rights law. However, for international treaties and agreements to be fulfilled, most individual countries must enact domestic laws and policies to implement their commitments. In this study, we examine how many countries have laws to limit the detention of children.To assess the legislative protections for migrant and refugee children from detention, we created quantitatively comparable data on legal provisions across the 150 most populous UN member states. Our primary sources consisted of national-level laws, regulations, ministerial decisions, and executive decrees pertaining to asylum-seekers, refugees, and immigration.Globally, less than a quarter of countries legally protect unaccompanied asylum-seekers from detention and only 11% do so for accompanied minor migrants. Among countries that permit detention in at least some circumstances, only a minority address basic rights such as separation from adult strangers, family unity, access to education, and access to health care. Yet effective and human rights-respecting alternatives to detention exist; the evidence on these is provided.
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