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DETENTION OF REFUGEES, ASYLUM SEEKERS & MIGRANTS

Posted June 12, 2009

June 2, 2009

On this, the 10th anniversary of the UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, the Guidelines remain a valuable tool and the primary international mechanism available for States to determine appropriate minimum
standards for the detention of asylum seekers.

At this milestone, it is important that the UNHCR undertake an assessment of the Guidelines, not only to determine their impact and usage by States, UNHCR and civil society, but also to explore strategies to reaffirm and promote the Guidelines.

Background

While some States are actively using the Guidelines in their implementation of detention policy, many are not. Increasingly States are using various forms of detention as a migration management tool. They are also cooperating bilaterally or multilaterally in attempts to restrict migration flows, sharing information and personnel in these efforts. Hundreds of thousands of people are held in prisons, jails, administrative detention centres, closed camps and other facilities around the world, with:

Conditions of detention in most countries falling below international standards;
Restrictions on access to judicial review and asylum procedures for people who need international protection from serious human rights abuses; and
Serious protection problems for refugees within closed refugee camps.

Men, women and children, the elderly, the disabled, those with physical or mental health needs, torture survivors, refugees and asylum seekers are held against their will in removal centers, immigration detention centres, jails, prisons, police stations, airports, hotels, ships and containers
pending a final decision in their case or removal from the country. Decisions may take months or years, often while detainees languish in overcrowded, unhygienic conditions.

The IDC has listed a number of recommendations below for UNHCR’s consideration and attached a list of the top ten elements we have identified as requiring urgent consideration by States in relation to immigration detention, based on international law and standards, including the 1999
UNHCR Guidelines.

Recommendations

There is an urgent need to tackle the global problem and assess and address the impact of government detention policies and practices on the lives of refugees, asylum seekers and migrants.

The International Detention Coalition makes the following recommendations:

The IDC welcomes the UNHCR Division for International Protection Service’s recent initiative to organize the first Detention Workshop in Geneva in November 2008. We hope to see this as a regular event to help further develop the recommendations that emerged.
An assessment should be undertaken of the 1999 Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, focusing on detention practices and international developments. This should include an evaluation of the use of the Guidelines by States, civil society and UNHCR; the extent to which States are meeting the standards outlined in the Guidelines; and definition of strategies, including the use of the Guidelines, that UNHCR should adopt to protect the human rights of detained refugees and asylum seekers.
Greater resources should be made available for training and capacity building on the implementation of the Guidelines, including for the use of alternatives to detention, detention review and monitoring, and ensuring access to RSD in places of migration-related detention.
The issue of immigration detention, including the Guidelines, should be a priority in the 2010 UNHCR- NGO Annual Consultations and the High Commissioner’s Dialogue, and in discussions concerning mixed migratory movements and the 10 Point Plan of Action, and be a recurring Consultation subtopic.
Urgent dialogue should take place among international bodies, including UNHCR, OHCHR, UNICEF, IOM, ICRC, civil society and States in relation to:
- The detention of children, refugees, asylum seekers and other vulnerable persons
- The need for meaningful judicial review, access to asylum and monitoring in places of detention;
- The promotion and development of community-based alternatives to detention.

We note that a number of these recommendations emerged from the UNHCR’s Detention Workshop. We look forward to working with you on these matters and hope to meet with you soon to discuss in more detail how we can proceed together.

Position of the
International Detention Coalition

The detention of refugees, asylum seekers and migrants is inherently undesirable.
Vulnerable individuals - including children, pregnant women, nursing mothers, survivors of torture and trauma, trafficking victims, elderly persons, the disabled or those with physical or mental health needs – should not be placed in detention.
Children should not be detained for migration-related purposes. Their best interests must be protected in accordance with the Convention on the Rights of the Child. Children should not be separated from their caregivers and if they are unaccompanied, care arrangements must be made.
Asylum seekers should not be detained or penalized because they were compelled to enter a country irregularly or without proper documentation. They must not be detained with criminals and must have the opportunity to seek asylum and to access asylum procedures.
Detention should only be used as a measure of last resort. When used it must be necessary and proportionate to the objective of identity and security checks, prevention of absconding or compliance with an expulsion order.
Where a person is subject to detention, alternatives must first be pursued. Governments should implement alternatives to detention that ensure the protection of the rights, dignity and wellbeing of individuals.
No one should be subject to indefinite detention. Detention should be for the shortest possible time with defined limits on the length of detention, which are strictly adhered to.
No one should be subject to arbitrary detention. Decisions to detain must be exercised in accordance with fair policy and procedures and subject to regular independent judicial review. Detainees must have the right to challenge the lawfulness of their detention, which must include the right to legal counsel and the power of the court to release the detained individual.
Conditions of detention must comply with basic minimum human rights standards. There must be regular independent monitoring of places of detention to ensure these standards are met. States should ratify the Optional Protocol to the Convention against Torture, which provides a strong legal basis for a regular and independent monitoring of places of detention.
The confinement of refugees in closed camps constitutes detention. Governments should consider alternatives that allow refugees freedom of movement.

This document outlines a summary of the International Detention Coalition’s (IDC) position on the detention of refugees, asylum seekers and migrants, based on identified international law, standards and guidelines. For the full position of the IDC please visit: www.idcoalition.org

Who we are

The International Detention Coalition (IDC) is a network of 200 nongovernmental organizations, faith-based groups, academics and individuals from some 50 countries around the world, providing legal, social, medical and other services, carrying out research and reporting, and doing advocacy and policy work on behalf of refugees, migrants, and asylum seekers. These groups and individuals have formed the coalition to share information and promote best practices in the use of detention.

This statement was written by members of the International Detention Coalition and endorsed:

By the following organizations:

Act for Peace, National Council of Churches Australia (NCCA)
Africa IDP Voice, Zambia
Amnesty International
Asociación Idas & Vueltas, Uruguay
Association for the Prevention of Torture (APT)
Asylum Access
Asylum Welcome, Oxford UK
Bail for Immigration Detainees, UK
British Refugee Council
Chaldean Federation of America (CFA)
Church World Service, Immigration and Refugee Program, USA
Coordination et Initiatives pour et avec les Réfugiés et Étrangers (CIRE), Belgium
The Equal Rights Trust (ERT), UK
Frontiers Ruwad Association, Lebanon
Gatwick Detainees Welfare Group, UK
The National Human Rights Society of Malaysia (HAKAM)
Hebrew Immigrant Aid Society (HIAS), USA
Human Rights First
Jesuit Refugee Service (JRS) Asia Pacific
Jesuit Refugee Service (JRS) Australia
Jesuit Refugee Service (JRS) Belgium
Jesuit Refugee Service (JRS) Europe
Jesuit Refugee Service (JRS) USA
Legal Clinic for Refugees and Immigrants, Bulgaria
Lawyers for Human Rights (LHR), South Africa
London Detainee Support Group (LDSG)
Lutheran Immigration and Refugee Service (LIRS)
Medical Justice Network, UK
National Human Rights Education Committee of Australia
Office of Global Justice & Peace, School Sisters of Notre Dame – Milwaukee, USA
Refugee Council of Australia (RCOA)
Religion and Human Rights Project, USA
U.S. Committee for Refugees and Immigrants
Women’s Refugee Commission

By the following individual signatories:

Anna Marie Gallagher, President, IDC
Grant Mitchell, Director, IDC
Carole Angier, Trustee, Asylum Welcome
Gideon Aronoff, President and CEO, HIAS (The Hebrew Immigrant Aid Society), USA
Joseph Chilengi, Executive Director, Africa Internally Displaced Persons Voice (Africa IDP Voice), Zambia
Donna Covey, CEO, British Refugee Council
Nic Eadie, Coordinator, Gatwick Detainees Welfare Group, UK
Josephe Marie Flynn, SSND, Chair, Justice for Immigrants Committee, Archdiocese of Milwaukee
Fr. Kenneth Gavin, S.J., Director, Jesuit Refugee Service (JRS) USA
Ms. Diane Gosden, IDC member, Australia
Mary Latham, Victorian Council of Social Service (VCOSS), Australia
Lavinia Limón, President and CEO, U.S. Committee for Refugees and Immigrants
Valeria Ilareva, lawyer and academic, Bulgaria
Rev Monsignor John Murphy, Director, Australian Catholic Migrant and Refugee Office
Dr Sev Ozdowski, OAM FAICD, Australia
Michael Schöpf S.J., Regional Director, Jesuit Refugee Service (JRS) Europe
Dr Rosie Scott, Member of PEN, Australia
Hannah Song, Executive Director, Liberty in North Korea (LiNK)
Roxanne Schares, International Justice, Peace and Integrity of Creation Coordinator, School Sisters of Notre Dame, Italy
Samira Trad, Executive Director, Frontiers Ruwad Association, Lebanon
Stancea Vichie, Good Shepherd Social Justice Network, Australia

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