Opinions

Immigration Detention: Barriers to Justice in Bahrain 

Posted on by Salam Media
19
Dec

Panchami Manjunatha*

Foreign employment in Bahrain reached over 582,674 at the end of the fourth quarter of 2022. It has increased by an annual rate of 9.9% from the same quarter last year. Since 2010, the number of immigrants outnumbers citizens. Migrants currently account for more than 51% of the country’s population and nearly 80% of the workforce. Bahrain has experienced a large number of protests since the Arab Spring in 2011, which are regularly suppressed by security forces. Sectarian and migration politics overlap in the region as the Government of Bahrain (GoB) has consistently whitewashed social and political challenges faced by migrants in the country by marketing its position as a leading reformer of labour laws in the Gulf. 

The GoB’s claims of engaging in reforms have some credibility. There has been a considerable shift in Bahrain’s legal framework for migrants. In 2009, the Labor Marketing Regulatory Authority (LMRA) enacted legislation towards reform such as granting migrant workers the right to transfer to new employers without the consent of the current employers. Efforts to enable meaningful change continued in 2012, when Bahrain enacted new labour regulations for the private sector, expanding the scope of applicability to include domestic workers who are now employed within valid contractual terms. However, there are significant gaps between the stated intentions and goals of these established institutions and the reality on the ground. These gaps have not been bridged by the GoB’s efforts to investigate the failings of these institutions or remedy their lack of transparency and accountability. This has demonstrable consequences for the migrant population in Bahrain, who face structural barriers to accessing justice in the Bahraini society. Their condition is exacerbated by institutional prejudices informing their standing as political bodies. 

Various United Nations mechanisms that emphasise that access to justice must be people-centric, accessible, and capable of delivering quality justice to all. The intersectional nature of social discrimination faced by migrants in Bahraini society means that they are seldom able to adequately access the Bahraini criminal justice system or be informed of their rights, due to lack of effective legal representation. Migrants bear a disproportionate impact within the domestic criminal justice system when convicted or accused of crimes. This report traces the legal standards related to immigrant detention under international law and the standards related to immigration detention provided for under Bahraini law. It also analyses the immigration detention system of Bahrain in comparison to standards provided for under international law, highlighting key areas of challenge and reform. 

Immigrant Detention under International Law 

Immigration detention is the deprivation of the individual liberty of persons for migration related reasons, in contrast to criminal incarceration, which is the deprivation of liberty due to convictions or criminal charges being levied against such persons. Article 4 of the Optional Protocol to the Convention Against Torture defines the deprivation of liberty as ‘any form of detention or imprisonment or the placement of a person in private or public custodial settings that which a person is not permitted to leave at will by order of any judicial, administrative or other authority.’ Migrants are particularly vulnerable to deprivation of liberty, either in violation of the host state’s immigration regulations or on grounds of being a threat to public order and security. Article 9 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR) prohibit arbitrary detentions and provide that those arrested are entitled to representation before the court without delay, so that the judiciary has the opportunity to authorise their release if the arrest is unlawful. 

According to the body of principles provided by the ICCPR, persons under detention are to be informed at the time of arrest, the reason for their arrest and their rights in a language they understand. They are also further entitled to access legal counsel to be informed of their rights and the assistance of an interpreter in connection to the legal proceedings free of charge. The foreign detainees are also entitled to communication with consular authorities regarding their arrest under Article 36 of the 1963 Vienna Convention on Consular Relations. In addition to providing all of these legal protections, administrative detention must not extend the ‘period to which the state can provide appropriate justification.’ The Working Group on Arbitrary Detention notes that the maximum period of such detention should not be unreasonably excessive or arbitrary in length. 

Detention should be not punitive in character and care must be taken to ensure that as provided for in Article 10 of the ICCPR, detainees must be treated with inherent respect to their dignity and autonomy. They must not be subjected to degrading, cruel, and inhumane treatment or kept in conditions that do not consider their needs or their unique status. Article 17 Paragraph 3 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Family provides that the state should, as far as possible, ensure that  immigration detainees are kept separate from those convicted under the criminal justice system or charged with offences. Paragraph 7 of the same article makes certain that migrants and their family members who are subject to detention are entitled to the same rights as nationals of the host state who are in the same situation. Victims who have been victims of unlawful arrests are entitled to an enforceable right of compensation under Article 16 paragraph 4 of the same convention. 

Immigration Detention in Bahrain 

The key norms governing immigration related detention in Bahrain are provided for in the Aliens Immigration and Residing Act of 1965 (amended in 1980) and Law no. 19 of 2006 which regulates the labour market. Article 19 of the 2002 Bahraini Constitution provides safeguards against unlawful detention. Detention can be ordered under Article 26 (4) of the 1965 Act by the General Director of Police and Public Security. Additionally, under Articles 25 and 26, authorities can arrest migrants or other foreign nationals when it is for ‘public benefit.’ A broadly drafted Article 30 also provides power to immigration functionaries to arrest any person who is ‘suspected’ for a sound reason of having committed crimes under Bahraini law. The length of administrative detention varies, as Article 26 (4) of the act does not provide any time limit on the length of the time a person can remain in administrative detention. According to the Bahrain’s Migrant Workers Protection Society (MWPS) detention can last as little as two weeks or as long as several months, largely dependent on the willingness of the sponsor to co-operate with the investigation. 

The legislative criteria for administrative detention in Bahrain allow for a high degree of discretion, as migrants can be detained for ‘public benefit’ – the definition of which is indeterminate. Those legal vagaries provide arbitrary power to immigration authorities. This high degree of discretion, coupled with broad powers to detain, can result in severe human rights violations. Therefore, it is imperative that detailed legal criteria are provided to curb discretion and prevent de facto discriminatory patterns of arrest and deportation of migrants. Additionally, lack of effective channels towards judicial review of administrative detention violates migrants’ rights under international law. Migrants and asylum seekers are often detained at airport transit zones and ports under no clear authority; the difficulty or the near impossibility of accessing assistance from outside impedes their ability to appeal administrative detention orders or even apply for asylum with legitimate claims. This is exacerbated by the fact that Bahrain is not a signatory to the 1951 Convention on Refugees or its 1967 protocol. Moreover, the GoB has not established any mechanisms for providing protection to the refugees. 

Bahrain has two primary detention facilities for immigration related detention: the Al Eker Detention Centre and Isa Town Women’s Detention Centre. Several activists have also reported that persons under immigration related detention are placed in prisons such as the Jau Central Prison and Dry Dock Detention Center, alongside the general prison population, as they await deportation. This was confirmed by the UN Working Group on Arbitrary Detention (WGAD) themselves in 2001. This violates the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which calls for separate detention facilities to be provisioned. 

Failure to separate prison populations has also resulted in overcrowding, which remains one of the primary challenges in Bahrain’s prisons and detention centres. There have also been consistent complaints regarding the poor treatment of detainees and the worsening material conditions in these centres by numerous Human Rights groups working in the region. Prison authorities frequently mistreat detainees during interrogations and deny medical treatment to those who are ill. These practices violate the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

Migrant workers who flee abusive employers are often charged as “runaways” and sentenced to detention. The UN Special Rapporteur on Trafficking in 2006 recommended that there should be systematic screening of trafficked persons in detention centres. The overall lack of access to justice to immigrants detained is particularly concerning because Bahrain remains notorious for imprisoning large numbers of foreign workers, who have at times reportedly made up over 30% of the country’s prison population. 

Bahrain’s Obligations Under International Law: Recommendations and Conclusions  

The ratification of the International Covenant on Civil and Political Rights (ICCPR) in 2006 and the Convention against Torture in 1998 means that Bahrain is obligated to uphold international standards in immigration related detention. However, the GoB has never reported on its implementation of the ICCPR. In addition to establishing effective mechanisms towards implementation of treaties ratified, the GoB must also make concerted efforts to ratify other treaties in relation to immigration related detention such as the International Convention on Protection of the Rights of all Migrant Workers and the Convention Relating to the Status of Refugees, and the Optional Protocol to CAT (OPCAT), both of which mandate the establishment of national preventive mechanisms to visit all places of detention. 

Although the GoB has not currently ratified the Convention Relating to the Status of Refugees and the Optional Protocol to CAT (OPCAT), which seeks the mandatory establishment of preventive national mechanisms to visit and monitor places of detention. It has instituted the PDRC to monitor places of detention and investigate allegations of torture and ill-treatment. Of the nine reports published by the body since 2015, none have discussed immigration related detention. 

The mechanisms of PDRC currently fail to meet international standards outlined by the OPCAT. Several of the PDRC’s members are from the prosecutor and judicial offices, who were themselves responsible for rendering sentences against the prisoners, raising serious questions about the independence and impartiality of the functioning of the body. Further, the PDCR has consistently failed to investigate substantial and credible allegations of torture within the Bahraini prison system. The commission has thus far failed to implement investigative methodologies drafted by the UN. While the premise of the PDRC’s methodology is to investigate detention standards as they are at the time of investigation, there is no indication that the commission has accounted for the history of systematic abuse in the places of detention they have investigated. The PDRC’s inspections also fail to exhibit a coherent methodology. Its reports do not suggest that clear guidelines were followed, or that a code of conduct has been developed. 

In order to address these gaps, the GoB must:

  • Make a concerted effort to make alternative arrangements to safely house persons identified as trafficked other than placing them within administrative detention; 
  • Realise its obligations under international law and make efforts to inform the reasons of arrest in a language migrants understand and provide them with effective legal assistance when requested along with ensuring effective channels with their embassies in accordance with the Vienna Convention;
  • Allow Bahrain’s detention facilities investigated and coherently monitored by an independent and impartial body to put an end to systematic abuse and torture; 
  • Amend Bahrain’s legislative framework governing immigration detention to ensure that immigrants have a legal right to access legal representatives, translators, and other resources necessary to challenge detention orders on appeal. This includes efforts to underscore the complexity of migrants’ social and political disadvantages while implementing the law;
  • Ensure that administrative detention should not be punitive or conducted in an arbitrary manner; and
  • Make a sustained and dedicated effort to ensure that detention facilities meet international human rights standards and account for the needs of various marginalised groups such as disabled people, women, and other gender minorities. 

Despite its efforts to cultivate a reputation of being the bastion of labour reforms in the Middle East, the GoB continues to impose harsh conditions on its foreign workers and immigrants. This results in the systematic repression of their access to justice and reinforces nominal detention standards in prisons across the country. Efforts to generate accountability are hindered by lack of access to information regarding immigrant detention practices in the country. All these practices collectively contribute towards sustaining a burgeoning immigration detention regime with little to no independent oversight. Therefore, it is imperative that the GoB establishes mechanisms to undertake a swift, effective, and independent overview of its immigration detention practices and takes measures to ensure its functional compliance with the norms and standards under international law. 

* Panchami Manjunatha is a fourth year law student studying at the National Law School of India University (NLSIU), Bengaluru, India.