Much of the discussion of third-country transfers concerns the sending state’s decision. This article concerns what happens next, and it is the point at which ordinary torture-prevention machinery has something concrete to offer without any need for confrontation between states.
What OPCAT establishes
The Optional Protocol to the Convention against Torture creates a system of regular visits to places where people are deprived of liberty, carried out by the Subcommittee on Prevention of Torture internationally and by a National Preventive Mechanism in each State Party. Article 4 defines the scope broadly: any place under the state’s jurisdiction and control where people are or may be deprived of liberty, whether by order of a public authority or with its consent or acquiescence.
Why transferred people are within scope
That definition contains no exception for people who arrived from somewhere else, and no requirement that the detention be lawful, or ordered by a court, or connected to a criminal charge. A guarded facility holding transferred people who are not free to leave is a place of deprivation of liberty. If the state is a party to OPCAT, its National Preventive Mechanism may visit, may speak with those held there in private, and may report.
The mechanism’s ordinary powers are exactly what these situations call for. Under Articles 19 and 20 an NPM is entitled to access to all places of detention, to information about the number of people held and the treatment they receive, to unsupervised private interviews, and to choose the places it visits.
What a visit can establish
- Whether the people held know why they are being held, and for how long.
- Whether any of them wish to make a claim about onward transfer, and whether they have been able to.
- Whether they have access to counsel, to interpretation, and to contact with family.
- Whether medical needs, including consequences of past torture, are being addressed.
- Whether anyone is held in isolation, and on what basis.
Each of these bears on the legal questions discussed in our explainer on removal to a third country, and none requires the monitoring body to take a position on another state’s immigration policy.
Where the gap lies
Two gaps recur. Some receiving states have not ratified OPCAT, so no mechanism exists. Others have ratified but their mechanism is under-resourced, or has not previously considered such facilities to be within its programme. The first gap is a case for ratification. The second is a case for support, and it is the work ICET was constituted to do: our training and technical assistance work describes the training and technical assistance we provide to mechanisms and to the institutions that supply their members.
Where a National Preventive Mechanism, national human rights institution or ombudsman would find assistance useful in bringing such facilities into its visiting programme, please contact us. Further background is available in our resource directory and in About ICET.
This article is published for educational purposes and is not legal advice. The law described here changed several times between 2025 and 2026. Anyone facing removal, or advising someone who is, should consult a qualified immigration lawyer. See also our explainer on removal to a third country.