Worldwide Detention Practices

Introduction

Research by Thomas Herman and Karina Folk

As part of its ongoing investigation into global detention conditions and standards for immigrant detainees, JRS/USA sent a survey to organizations working in the immigration detention arena in countries throughout the world, in particular those where JRS staff members are present. The survey contained twenty-three questions related to detention conditions for immigrants and asylees.

Data was also collected from an identical survey returned by one other non-governmental organization (Danish Refugee Council), as well as from research from websites run by JRS-Europe, the Ministry of Foreign Affairs of Denmark, Amnesty International-Netherlands, the Swedish Migration Board, Detention Watch Network and UNHCR.

These sources of information allowed JRS/USA to include the following countries in the study:

Australia	Croatia	Denmark	France	Germany
Italy	Lithuania	Malta	Netherlands	Portugal
Slovenia	Spain	Sweden	Thailand	Ukraine
United Kingdom	United States

Data could not be obtained in full for each of the respondent countries; nevertheless, countries for which data is incomplete are included in the survey, and missing country data is indicated after each category.

Topic Headings

Legal Grounds for Detention and Average Lengths of Stay in Detention Centers
Immigrant Detention versus Criminal Detention
Private versus Public Control of Immigrant Detention Centers; Detainee Freedom of Movement
Detention Center Rules, Practices/Abuses, and Procedures for Redress
Detainee Access to Outside World
Family Notification Practices; Due Process Rights
Immigrant Family Detention Protocols; Detainee Medical Care; Educational Programming and Detention Conditions for Immigrant Minors
NGO Access to Detention Centers; Special Consideration for Vulnerable Groups in Detention
Alternatives to Detention

1. Grounds for Detention & Average Lengths of Stay

The most common basis for immigrant detention is deficient or improper legal documentation to support lawful immigrant presence in the detaining country — for this type of infraction, detention is standard practice in Australia, France, Croatia, Germany, Lithuania, Malta, Netherlands, Portugal, Slovenia, Spain, Thailand, Ukraine, the United Kingdom, and the United States. Countries that detain immigrants upon a request of asylum at a point of entry include France, Germany, Malta, Netherlands, Portugal, Ukraine, the United Kingdom and the United States. (Australia, Croatia, Denmark, Italy, Lithuania, Malta, Slovenia, Spain, Sweden and Thailand do not detain asylum-seekers.) Immigrants convicted of serious crimes are detained after their prison term in Australia, Thailand, and the United States. (Data was not available for Italy.)

Regarding detention periods, Lithuania, Malta and the United Kingdom report the longest stays for detained immigrants — on average, six months or longer. Non-asylum-seeking immigrants in Portugal also face average waits of more than six months in detention before their cases are resolved. Slightly lower averages — in the area of several months — were shown in Australia, Croatia, Denmark, Germany, Italy, Slovenia, Spain, and the United States; similarly, and despite a legal limit of up to six months, stays in Netherlands typically last about three months. (It is notable that in the United States, officials are legally required to carry out deportations for detainees within six months of the issuance of a final order of deportation; however, internal procedures for carrying out these legal requirements are absent within the agency responsible for enforcing the standard (ICE), so detainees must often resort to challenging their detention in federal court.) Detention periods of only a few weeks can be found in Sweden as well as Slovenia, although the latter shows greater variation in average length of detention. In Thailand, detention periods of only a few days occur in conjunction with the practice of “voluntary” repatriations of Lao, Burmese and Cambodian immigrants; other detained immigrants in Thailand, however, can spend weeks, months or even years in immigrant detention centers. The shortest detention periods occur in France and Portugal (limited to asylum-seekers), where on average, a detainee will spend only a few days in jail. (Data was not available for Ukraine.)

2. Comparison Between Immigrant & Criminal Detention

In the following countries, some or all of the immigration detention centers are substantially similar to prisons or jails: Australia, France, Germany, Malta, Slovenia, Thailand, the United Kingdom, and the United States. In two of these cases — Australia and France — survey respondents acknowledged similarities between immigrant detention centers and criminal jails or prisons, but also distinguished them as more humane. In two other cases — Malta and Thailand — the survey respondents noted the same similarities, but distinguished immigrant detention conditions in these countries as worse than criminal jails or prisons. Sweden is the only country to report immigrant detention centers as dissimilar to prisons or jails. (Data was not available for Croatia, Lithuania, Netherlands, Portugal, Spain and Ukraine.)

Practices vary with regard to the separation of immigrant and incarcerated criminal population. The United States and France follow three models: putting immigrants and criminals in the same areas and/or cells, separating them within the same facility, and confining the two populations to separate detention centers. Italy fully integrates criminal and immigrant populations in its prison facilities. Australia, Malta, Sweden, Thailand and Ukraine all incarcerate immigrants in separate facilities from convicted criminals, although Malta and Australia both house convicted criminal immigrants who have served their sentences together with non-criminal immigrant detainees. Germany detains immigrants in separate facilities from criminals, or separates these populations within a facility. Slovenia has one detention center in the country designated specifically for immigrants, but occasionally immigration detainees with criminal records or convictions are mixed with the general immigrant detainee population. (Data was not available for Croatia, Denmark, Lithuania, Netherlands, Portugal, Spain and the United Kingdom.)

Australia, Denmark, France, Germany, Slovenia, Sweden, and the United States all keep male and female detainees in separate facilities or cells. In Thailand, however, separation of the sexes depends on the location (separate in Bangkok, mixed-gender detention in Mae Sot). Malta reported no separation of men and women in immigrant detention. (Data was not available for Croatia, Italy, Lithuania, Netherlands, Portugal, Spain, Ukraine and the United Kingdom.)

3. Private versus Public Control of Immigrant Detention Centers; Degree of Freedom Granted to Immigrant Detainees

A range of public and private entities administer immigration detention in the Netherlands, Portugal, the United States and the United Kingdom; facilities in these countries are run by federal agencies, local law enforcement and private contractors. Other surveyed countries showed greater uniformity of administration of immigrant detention centers. Government agencies in Malta, Slovenia, Sweden, and Thailand are the sole administrators of immigrant detention facilities. Detention centers in France are run by a mix of government agencies and local law enforcement. Detention facilities are run by local law enforcement in Germany, and are privately-run in Australia. (Data was not available for Croatia, Denmark, Italy, Lithuania, Spain and Ukraine.)

Regarding types of confinement, the most stringent practice — detainee movement restricted to cells or similar detention areas — can be found in border facilities in Thailand. Immigrant detainees in Australia, France, Slovenia, Thailand and the United States are slightly less restricted, and are permitted to leave their rooms for meals or limited recreation. (Note that some facilities in the United States, under certain circumstances, utilize Special Management Units (SMU’s) for immigrant detainees — these units are akin to temporary solitary confinement.) Detention centers in Germany, Malta and Sweden, as well as some in France, allow for minimally-restricted to unrestricted movement within detention centers. The least restrictive facilities are in Spain, as well as some centers in France, where immigrants may qualify for supervised leave, allowing them to come and go from detention facilities within pre-set guidelines. (In Spain, for example, detained immigrants may leave Temporary Holding Centers during the day; however, absent special permission, they must return each night.) (Data was not available for Croatia, Denmark, Italy, Lithuania, Netherlands, Portugal, Ukraine, and the United Kingdom.)

4. Detention Center Rules; Detention Center Practices; and Internal Procedures for Redress

In Australia, Slovenia and Sweden, facility guards inform detainees of their rights upon arrival. In some centers in France and the United States, NGO’s or non-profit organizations may enter the premises to conduct “know-your-rights” presentations for detainees. Detention center rules are vague or largely unspecified in Germany, Malta and Thailand, and in some centers in France and the United States. (Data was not available for Croatia, Denmark, Italy, Lithuania, Netherlands, Portugal, Spain, Ukraine, and the United Kingdom.)

Of the countries surveyed, only France reported the existence of all four categories of coercive and/or invasive detention practices listed in the survey: strip searches, forced restraint, imprisonment without food and random searches. Australia and Malta reported three of these practices: strip searches, forced restraint, and random searches. Slovenia, Thailand and the United States all reported the occasional use of forced restraint, while Sweden and the United States both reported incidences of strip searches, although they are allegedly rare in Sweden. (Data was not available for Croatia, Denmark, Germany, Italy, Lithuania, Netherlands, Portugal, Spain, Ukraine, and the United Kingdom.)

Australia, Sweden and the United States all have grievance systems in place for immigrant detainees, although in the United States, it is underutilized due to fear of staff reprisals or ignorance of its existence. Malta’s Board of Detention Visitors hears complaints during bi-monthly visits to each center; however, the mandate of the Board is limited. France, Germany, and Thailand have no system for hearing detainee grievances, although detainees with access to non-governmental organizations can occasionally log grievances through these groups. (Data was not available for Croatia, Denmark, Italy, Lithuania, Netherlands, Portugal, Slovenia, Spain, Ukraine, and the United Kingdom.)

5. Detainee Access to Outside World

Australia, Slovenia, Sweden and some Thai facilities currently have liberal policies on detainee communication with friends and families on the outside, wherein detainees are permitted to call families upon arrival and on a regular basis throughout their detention, receive family visitors, and send and receive letters (Australia and Sweden permit e-mail as well). Limited and varied contact is permitted in facilities in other countries: regular phone calls to family, letter-writing and visitations in Germany; phone access and visitor access in France and Malta; family visitations in Denmark and Lithuania (in theory, if not in practice, with respect to Lithuania); and letter-writing and restricted phone access in the United States, with some facilities allowing visits from family members. (No data was available for Croatia, Denmark, Italy, Netherlands, Portugal, Spain, Ukraine and the United Kingdom.)

France is the only surveyed country in which some detention centers do not charge for phone calls. In Australia, Germany, Malta, Slovenia, Sweden, Thailand, the United States, and some facilities in France, detainees are charged for use of the telephone. With the exception of Malta and the United States, these calls are considered affordable by survey respondents. (No data was available for Croatia, Denmark, Italy, Lithuania, Netherlands, Portugal, Spain, Ukraine, and the United Kingdom.)

6. Notification of Transfer; Right to Hearing; Right to Counsel

Detention centers in Australia, France (legally, though not in practice), Germany, and Sweden all inform family members or legal counsel when a detained immigrant is transferred to a new facility. No such practice exists in Malta, Thailand, or the United States. (No data was available for Croatia, Denmark, Italy, Lithuania, Netherlands, Portugal, Slovenia, Spain, Ukraine, and the United States.)

Immigrant detainees have a right to a judicial hearing before a judge or magistrate in Denmark, France (after the 48th hour of detention), Germany, Lithuania, Malta (legally, if not practically), Netherlands, Slovenia, and Sweden. A right to a hearing in Thailand and the United States exists in some cases but not in others, depending on nationality/ethnicity (Thailand) or the legal and geographic circumstances of their arrest (United States). Immigrants detained in Australia do not have the right to be seen by a judge or some other adjudicating official. (No data was available for Croatia, Italy, Portugal, Spain, Ukraine, and the United Kingdom.)

Of those countries granting immigrants a right to a hearing, France is alone is providing access to free counsel. In some cases in Slovenia and Sweden, detainees will have access to free or minimally expensive representation; however, in some cases, detainees in these countries must pay for private counsel. In Germany and Malta, all detainees pay for their own legal services. Access to counsel varies in the United States: some detainees retain pro-bono counsel, others pay for private counsel, and many have no access to legal representation at all. Immigrants detained in Thailand do not have access to legal representation.

7. Family Detention Protocols; Medical Care; Educational Programming and Detention Conditions for Immigrant Minors

Family detention practices vary widely both between and within the countries surveyed. Immigrant parents or guardians are held in detention with their children in Denmark, France (in special facilities), Malta, Netherlands, Thailand, the United Kingdom, and in some centers in United States (two family-based detention facilities). In Germany, parents with children are either not detained, or detained while their children are released to foster care. In Sweden, typically only fathers are detained, while mothers and children stay in open facilities; occasionally, however, children are detained with their parents. In Australia, children are usually not detained, but rather released to alternative arrangements in the community. In the United States, those children not detained with their parents in one of two family facilities are released to Office of Refugee Resettlement (ORR) custody, though occasional parents with infants are released. (No data was available for Croatia, Italy, Lithuania, Portugal, Spain, and Ukraine.)

Children detained in Australia, Slovenia and the United States receive some form of education while detained — a substantial amount in Australia, a superficial amount in the United States, and some or none in Slovenia, depending on how long a child has been detained. France, Germany, Malta and Thailand do not offer education to detained children. Sweden only detains children for a maximum of 72 hours, so no educational programming is offered. (No data was available for Croatia, Denmark, Italy, Lithuania, Netherlands, Portugal, Spain, Ukraine, and the United Kingdom.)

Children are detained in less restrictive environments in Australia, Denmark, and Slovenia. France, Germany, Malta and Thailand, however, do not provide less restrictive facilities for children. In the United States, detention environments vary for children: facilities for children run by the Office of Refugee Resettlement are typically less restrictive, while the family detention centers are more prison-like. (No data was available for Croatia, Italy, Lithuania, Netherlands, Portugal, Spain, Sweden, Ukraine, and the United Kingdom.)

The highest standards of health care for detained immigrants — universal availability for little or no cost — can be found in Australia, France, Malta, Slovenia, and Sweden, though some have criticized the health care in France, Malta, and Sweden as inadequate. Germany offers health care to detainees suffering from serious or chronic conditions. Health care varies widely in Thailand, although it tends to be inadequate in all but serious life-threatening conditions, and inconsistently given even in those situations. Lithuania reported the lowest indices of adequate health care for detained immigrants among the surveyed countries.

Health care for immigrants varies widely in practice in the United States. Although emergency medical care is often — though not always — provided to detained immigrants, a focus on emergent health care responses has often come at the expense of treatment for chronic or non-emergent illnesses or health issues. In addition, prioritizing health care savings over treatment has led to insufficient and inadequate health care for detainees. Finally, while a clear set of standards (“Performance-Based National Detention Standards”) have been adopted by Immigration and Customs Enforcement for the medical treatment of detainees, these standards are not codified, nor are they rigorously followed or enforced. A bill to improve these standards is scheduled to be re-introduced by Rep. Lofgren and Sen. Menendez — this legislation would require DHS to develop procedures to provide adequate health care for immigrant detainees. (No data was available for Croatia, Denmark, Italy, Netherlands, Portugal, Spain, Ukraine, and the United Kingdom.)

8. NGO Access to Detention Centers; Special Consideration for Vulnerable Groups

Of the countries researched for this study, only Italy denies in-person access to its detention facilities to non-governmental agencies. Australia, France, Germany, Lithuania, Malta, Slovenia, Sweden, Thailand and United States all allow varying degrees of access — from permission to monitor detention conditions to the establishment of programs and services — in all or some detention centers. (No data was available for Croatia, Denmark, Netherlands, Portugal, Spain, Ukraine, and the United Kingdom.)

Regarding vulnerable populations, minors are the only such group given special consideration in all survey respondent countries: Australia, France, Germany, Slovenia, Sweden, Thailand, the United Kingdom, and the United States. Pregnant women receive special consideration in Australia, France, Germany, Slovenia, Sweden, and Thailand. Asylum-seekers/refugees are given special consideration only in Australia (in very limited cases), Slovenia and Sweden, and torture survivors receive special treatment only in Australia and Slovenia. In Australia, Slovenia, Sweden, and Thailand, the elderly are given special consideration. (No data was available for Croatia, Denmark, Italy, Lithuania, Malta, Netherlands, Portugal, Spain or Ukraine.)

9. Alternatives to Detention

Australia: Under a program called “Community Detention,” some designated immigrants are released to the care of the Australian Red Cross in lieu of detention. In addition, the government has built some low-security detention facilities for the management of particular immigrant classes, including short-term turn-around cases, individuals with low security concerns and individuals with specialist needs. Finally, the Community Care Pilot is a community-based, holistic care program for individuals awaiting immigration outcomes in which immigrants receive housing assistance from the Australian Red Cross and a slew of additional services —legal, social, etc. — from community groups and other organizations. The Community Care Pilot permits some asylum seekers to participate in the program if they have multiple needs (mental health/physical health issues, for example), but this participation is very limited and the majority of detained asylum-seekers are still kept in detention centers.

Denmark: As an alternative to detaining asylum seekers and some other types of immigrants, the government permits them to live outside of detention centers, usually under one or more of the following conditions: the collection of a deposit ticket or passport (commonly used), a provision for bail, housing assignment to a specific address (commonly used as most live in asylum centers), or scheduled reports to police.

France: Some immigrants can be "assigned at residence" outside of detention centers until a deportation measure is executed (if executed) depending on certain pre-conditions: possession of a valid passport (which the Administration will keep), possession of valid address, personal guarantees not to flee, and daily registries at the police station.

Germany: Occasionally, when a deportation is temporarily suspended (e.g. if a deportation is impossible or for humanitarian reasons), an immigrant awaiting deportation may reside within—and be restricted to—the administrative district most recently responsible for the immigrant. There are also some departure facilities for foreigners who under orders of deportation.

Malta: Government policy on detention states that vulnerable immigrants should not be detained; nevertheless, in practice, they are detained until their situation is assessed, medical clearance is obtained and accommodation is found in the community. Once released from detention, vulnerable persons are accommodated in collective accommodation centers (“Open Centres”) with other persons released from detention. There is also a procedure where detainees may apply to the Immigration Appeals Board to challenge the reasonableness of their detention, either because it is not possible to deport him/her within a reasonable time or because the length of his/her detention to date is unreasonable. If the Board accepts the application (very rare because in most cases government policy is taken to be the standard of 'reasonableness') the Board may decide to impose a reporting obligation, usually reporting and signing at the police station on a daily/weekly basis.

Slovenia: Detained immigrants may go and live outside of the detention center if they receive permission.

Sweden: It is possible for detained immigrants to be released on the condition that they report to the police twice a week.

United Kingdom: Alternatives include temporary admissions to detention and conditional release under bail, reporting requirements, electronic tagging, and/or residence restrictions.

United States: The Office of Detention and Removal (an office within the Department of Homeland Security) created the Alternatives to Detention (ATD) unit in 2002. ATD currently manages two adult detention alternative programs: the Intensive Supervision Appearance Program (ISAP) and the Enhanced Supervision/Reporting Program (ESR). In these programs, electronic tagging is used for immigrants who are not legally required to be detained in DRO custody (e.g., aliens with violent criminal histories or who pose a threat to the community). A total of 12,300 immigrants currently participate in these programs.¹ Although these programs are reportedly cheaper and more effective than traditional detention, participants in alternative programs account for less than five percent of all immigrants awaiting processing or adjudication of their immigrant status.²

In addition, children awaiting judicial hearings may be released to the custody of family members from juvenile detention centers run by the Office of Refugee Resettlement (ORR). These arrangements depend on the successful completion of a series of evaluations of potential host family members conducted by ORR; however, some family members of detained children are reluctant to come forward for fear of being detained themselves, even though ORR does not report undocumented family members to ICE.

(No data was available for Croatia, Italy, Lithuania, Netherlands, Portugal, Spain, Thailand, or Ukraine.)

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¹ “Alternatives to Detention,” U.S. Immigration and Customs Enforcement, Federal Register Notices; http://www.ice.gov/pi/news/factsheets/080115alternativestodetention.htm

² “About the U.S Detention and Deportation System,” Detention Watch Network; http://www.detentionwatchnetwork.org/aboutdetention

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Jesuit Refugee Service/USA is a member of the Detention Watch Network. DWN is a coalition that addresses the immigration detention crisis head on. Together we work to reform the U.S. detention and deportation system so that all who come to our shores receive fair and humane treatment.

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