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World Detention Practices
As part of its ongoing investigation into global detention conditions and standards for immigrant detainees, JRS/USA has compiled the results of a survey sent 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 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.

Research by Thomas Herman, Karina Folk, Ashley Standfield and Erin Kelly.

Please use the tabs below to jump to more information, which will be displayed beneath the tabs.


  • Introduction
  • 1—Reasons, Lengths
  • 2—Immigrant vs Criminal
  • 3—Private vs Public
  • 4—Rules & Practices
  • 5—Access
  • 6—Detainee Rights
  • 7—Family/ Health/ Minors
  • 8—Special Considerations
  • 9—Alternatives to Detention
  • Australia
  • Croatia
  • Denmark
  • France
  • Germany
  • Italy
  • Lithuania
  • Malta
  • Netherlands
  • Portugal
  • Slovenia
  • Spain
  • Sweden
  • Thailand
  • Ukraine
  • United Kingdom
  • United States
Introduction


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

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.)

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.)

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.)

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.)

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.

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.)

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.)

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.)

___________________________

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

Australia Detention Overview

Introduction

According to the 2006 census, nearly twenty-five percent of all persons living in Australia were born abroad, making Australia’s foreign-born population one of the largest in the world.[i] Treatment of detained immigrants in Australia is consequently an issue of great significance not only to the Commonwealth itself but also to the international community. Hundreds of thousands of immigrants worldwide continue to seek refuge and a better life beyond the shores of this island nation.

Legal reforms over the last 30 years have resulted in improvements in standards and legal remedies for immigrants in detention in Australia. Nonetheless, detention of immigrants continues to undergo legislative scrutiny, and calls for greater sensitivity to the plight of persecuted foreigners continue. Between 2009 and 2010 there was a 123 percent increase in the total number of individuals held in immigration detention, from 4,397 people in 2008-09 to 9,802 in 2009-10.[ii] 

Current Detention System

Australian law calls for detention of “unlawful non-citizens,” those persons who have arrived without a visa or have overstayed their visa. The vast majority of individuals detained re irregular maritime arrivals (IMAs), constituting 95% of persons detained in 2009-10.[iii] The Department of Immigration and Citizenship currently sub-contracts the immediate care and custody of detained immigrants to private entities, notably the security company Serco, but detention policy and standards continue to be set by the federal government. However, following complaints about the operation of the Christmas Island detention centers, the government began inquiry hearings into the company’s management in September 2011.[iv]

After taking office in 2007, former Prime Minister Rudd immediately reversed some of the most controversial policies of the preceding Howard government. He announced an end to his predecessor's asylum practices, known as the Pacific Solution, in January 2008. Legislation in 2008 placed limits on mandatory, indefinite detention, applying it more narrowly to unlawful non-citizens who are considered security or health threats, or undocumented entrants with multiple immigration violations.[v]  These changes have kept some immigrants, including asylum-seekers, from languishing in detention while their cases are processed. Those immigrants who do possess proper legal documentation are typically only detained if convicted of a serious crime. 

Under Rudd, the Australian government made several significant changes to the countries immigration policies and detention practices.  In July of 2009, the government ended the policy of jailing asylum seekers. In July 2009, immigration regulations were changed to allow more asylum-seekers to work while their applications are processed. In September, the government stopped charging asylum-seekers for the cost of their detention.[vi] In November 2009, a bill was passed in the Senate to implement protection for asylum-seekers. The bill gave asylum-seekers who fall outside the scope of the UN Refugee Convention protection from forcible return.[vii]

However, the Rudd government opened a new detention center on Christmas Island that had been previously commissioned by the Howard government to deal with the continuing influx of asylum seekers.[viii] Four thousand Australian islands remained outside Australia's migration zone. Those who arrived by boat were processed on Christmas Island and granted fewer rights and less access to services than those who arrived by plane. [ix] Under the new policy following health, identity, and security checks unauthorized arrivals remain in immigration detention while their applications are being processed only if it is determined that they pose a threat to the community. However, in practice a shortage of community-based accommodation appears to be preventing the release of some detainees from closed detention facilities into community detention.[x]

Additionally the Rudd government issued a suspension of the processing of new asylum claims by Afghan and Sri Lankan nationals on April 8, 2010, which is inconsistent with Australia's international obligations under the 1951 UN Refugee Convention.[xi] This resulted in the arbitrary detention of more individuals who have genuine protection claims.[xii]  Under the current Prime Minister, Julia Gillard, Australia lifted the processing freeze on Sri Lankan asylum seekers in July 2010[xiii] and on Afghan asylum seekers in September 2010.[xiv] However, the current government has reopened the controversial Curtin detention center and is building two new detention centers, increasing total detention capacity by 1,200 people.[xv]

Nonetheless, a shift away from a punitive immigrant detention regime over the last five years has allowed for greater consultation with detainees for input into systemic improvement.  One result of this shift has been the formation of detainee consultative groups in each center that discuss detention conditions such as food, visits and recreation. A grievance system is also currently in place and is readily available to detainees in the event of mistreatment or abuse.  Outside oversight — that is, access to detention facilities by non-governmental organizations—is restricted to monitoring by the Red Cross. The National Human Rights Commission and Ombudsman are the governmental bodies responsible for monitoring and reporting on conditions within these centers.

Conditions in Detention System

Life in the detention remains strictly regulated, although conditions compare favorably with other countries in areas such as health care and communication abilities.  Upon arrival, immigrant detainees are separated by sex, and facility guards inform them of the rules of the detention centers and the rights and privileges afforded to detainees.  Afterwards, those in detention are allowed to communicate with family members, and on a regular basis thereafter by phone, letter and e-mail; they may also receive visits from their families.  If a detainee is transferred from one facility to another, legal representatives and family members of that detainee will be notified.  Medical care at detention centers is universally available to every detainee for little or no cost. The use of solitary confinement in centers has diminished considerably, and there is greater access to amenities such as the Internet, books and periodicals. 

Treatment of the most vulnerable immigrant populations varies in Australia.  Immigrant children, for example, while sometimes housed in low security facilities with their parents, are generally not detained. Instead, they are released into the community in alternative arrangements to detention.  If detained, children do receive some form of education, and the general environment for detained children is less restrictive than that of adult detention centers.  Other vulnerable groups, such as pregnant women and victims of torture, are also given special consideration in detention. 

Practically speaking, however, and despite efforts to ameliorate the harsher aspects of immigrant detention, these detention centers are still substantially similar to criminal prisons.  Detainees are confined to the space within the detention centers and are not allowed to leave unless for health or legal reasons.  Detained immigrants may be strip-searched, restrained with force and searched without cause.  More troublingly, those in detention do not have the right to be seen by a judge or adjudicative official, and on average, the length of stay for an immigrant detained in Australia is six months. The number of individuals detained for a period of greater than six months increased from 258 in March 2010 to 3,901 in March 2011, an increase of 1,412 percent, according to the Refugee Council of Australia.[xvi] The organization partially attributed the length of detention to the riots in the Villawood detention center in April 2011.[xvii]

The immigration detention facilities on Christmas Island are not appropriate for detaining asylum seekers, particularly those with a background of torture or trauma. The Christmas Island Immigration Detention Centre (IDC) is a high security detention centre that looks like a prison.[xviii] The construction camp facility is not appropriate for unaccompanied minors or families with children. Asylum seekers on Christmas Island have very limited access to appropriate services including health and mental health care, legal advice, cultural and religious support, and community-based advocacy and support networks.[xix]

Alternatives to Detention

In response to ongoing calls for reform, a range of alternatives to immigrant detention have been developed since the turn of the century.  By a legislative change in 2005 and under the legal designation “Residence Determination,” the Australian Minister now has the discretion to determine any locale to be a place of detention. Following this change, immigrant children and family members were released in late 2005 to the care of the Australian Red Cross under a “Community Detention” program, which has worked successfully since its inception. 161 people were held in community detention during 2009-10.[xx] In addition, low security detention facilities such as Immigration Transit Accommodation Centres and Immigration Residential Housing (IRH) now house immigrants with short-term turnaround cases and individuals with low security concerns or specialist needs. However, 88 percent of detained individuals in 2009-2010 were held in immigration detention centers.[xxi]

The Community Assistance Support program was launched in July 2009, as the successor to the Community Care Pilot program.[xxii] The case resolution program seeks to provide health, welfare and income support to highly vulnerable clients during the processing of their immigration application. The Australian Red Cross is the primary agency that services these clients, and as of June 2010 the program had assisted 449 clients. 39 of these clients were eligible clients released from immigration detention with a visa to remain lawfully in Australia.




[i]  “Australia’s Diverse Population.” Australian Bureau of Statistics, available at, http://www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/E0A79B147EA8E0B5CA2572AC001813E8/$File/34120_2005-06.pdf[accessed 2 August 2010]

[ii]  Annual Report 2009-2010, Programs 4.2, 4.3 and 4.4—overview. Australian Government Department of Immigration and Citizenship. http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-4/programs-overview.htm[accessed 21 September 2011]

[iii] Ibid.

[iv] “Serco Unfit to Run Centre, Say Workers.” Sydney Morning Herald (4 September 2011), available at http://www.smh.com.au/national/serco-unfit-to-run-centres-say-workers-20110903-1jreq.html [accessed 22 September 2011].

[v] “Sweeping Changes to Mandatory Detention Announced.”  ABC News, available at  http://www.abc.net.au/news/stories/2008/07/29/2317303.htm[accessed 2 August 2010]

[vi] Amnesty International, Amnesty International Report 2010 - Australia, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a842c.html[accessed 2 August 2010]

[vii] Ibid.

[viii] Freedom in the World 2009 - Australia, 16 July 2009, available at: http://www.unhcr.org/refworld/docid/4a6452d3c.html[accessed 2 August 2010]

[ix] Amnesty International, Amnesty International Report 2010 - Australia, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a842c.html[accessed 3 June 2010]

[x] United States Department of State, 2009 Country Reports on Human Rights Practices - Australia, 11 March 2010, available at: http://www.unhcr.org/refworld/docid/4b9e5316c.html[accessed 3 June 2010]

[xi] Amnesty International, Australia asylum suspension could harm world's most vulnerable, 9 April 2010, available at: http://www.unhcr.org/refworld/docid/4bc80afc1d.html[accessed 3 June 2010]

[xii] Ibid.

[xiii] “Sri Lankan situation improving as Australia strengthens asylum seeker policy.” Australian Government Department of Immigration and Citizenship (07 July 2010), available at http://www.newsroom.immi.gov.au/media_releases/825 [accessed 22 September 2011].

[xiv] “More Afghans may be Sent Home.” Sydney Morning Herald (30 September 2010), available at http://news.smh.com.au/breaking-news-national/more-afghans-may-be-sent-home-20100930-15ys9.html [accessed 22 September 2011]

[xv] Amnesty International, Amnesty International Annual Report 2011 - Australia, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce158146.html[accessed 21 September 2011]

[xvi] “Increase in Long-Term Detention at Heart of Unrest.” Refugee Council of Australia (27 April 2011), available at http://www.refugeecouncil.org.au/news/releases/110427_MigAct_changes.pdf [accessed 22 September 2011]

[xvii] “Buildings set alight in Villawood detention centre rooftop protest.” Sydney Morning Herald (21 April 2011), available at  http://www.smh.com.au/nsw/buildings-set-alight-in-villawood-detention-centre-rooftop-protest-20110421-1dp62.html#ixzz1YiMJXGnp [accessed 22 September 2011]

[xviii] Immigration detention and offshore processing on Christmas Island. Australian Human Rights Commission. July 2009, available at http://www.hreoc.gov.au/human_rights/immigration/idc2009_xmas_island.html[accessed 2 August 2010]

[xix] Ibid.

[xx] Annual Report 2009-2010, Programs 4.2, 4.3 and 4.4—overview. Australian Government Department of Immigration and Citizenship. http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-4/programs-overview.htm[accessed 21 September 2011]

[xxi] Annual Report 2009-2010, Community and Detention Services. Australian Government Department of Immigration and Citizenship. http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-4/programs-overview.htm[accessed 21 September 2011]

[xxii] Annual Report 2009-2010, Outcome 4, Part 3: Report on Performance, 169. Australian Government Department of Immigration and Citizenship, available at http://www.immi.gov.au/about/reports/annual/2009-10/ [accessed 22 September 2011]

Croatia Detention Overview

Introduction

Croatia detains fewer immigrants in comparison to other European countries, particularly those in Western Europe, in part because many immigrants view Croatia as a transit country.  The number of illegal migrants in continued to fall to 2,013 in 2008 compared to 4,000 in 2007 and, as a result, the number of forced returns decreased by 45% in 2008 as compared to the previous year.  

The deportation center at Ježevo accommodated 773 illegal migrants waiting for deportation. Despite lower raw and relative numbers overall however, applications for asylum in Croatia have increased in recent years: from 105 procedures in 2006 to 170 procedures in 2007, and 50 in just the first quarter of 2008, the most recent period for which figures are currently available.The Kutina asylum reception centre is reaching its maximum capacity. Croatia is still perceived as a country of transit, but the situation is likely to change upon its accession to the EU and Croatia needs to build up its capacity to deal with this expected increase.2

While the number of immigrants residing illegally in Croatia has decreased in the last few years, the number of unaccompanied minors has increased.3 In 2007, unaccompanied minors constituted 12% of total undocumented migrants.A major issue is the lack of specific treatment, including separate facilities, and protection for minors, who are subject to risks of abuse and exploitation.5

Current Detention System

Croatia currently detains immigrants who lack the proper legal documents for an extended stay or for entry into the country.  The law exempts asylum-seekers from detention for such infractions, unless an individual seeks asylum after being issued with a removal order.  In practice, however, asylum-seekers are still subject to administrative punishment for entering without proper documentation — a misdemeanor under current Croatian law.6 A lack of access to legal advice or interpreters during misdemeanor proceedings exacerbates the plight of asylum-seekers, often leading to the issuance and execution of deportation orders before a consideration of the asylum claim has occurred.7

The maximum length of detention allowable by law is 90 days. Jesuit Refugee Service of Croatia reports that typical lengths of detention are in the range of several months. These technical limits are not a ceiling for detention lengths — the law stipulates that this 90-day limit may be extended for procedural reasons (e.g. ongoing documentary investigations), security concerns, or, as previously mentioned, if an immigrant submits an asylum application during removal proceedings.

Data regarding detention conditions for immigrants in Croatia was only available for the closed deportation center in Ježevo where, though conditions have reportedly improved over the last few years, vast room for improvement remains.  Reports of overcrowding, instances of inadequate heating, and limited space for movement are infrastructural inadequacies that currently plague the detention center at Ježevo.8

Encouragingly, the Ježevo center requires that all new arrivals be given medical screenings. These screenings are free, and continuing health care is available and free for all detainees during weekday mornings by in-house doctor and nurse andatall other hours by medical hotline; no psychologists, however, currently work at the Ježevo facility.9

Unaccompanied minors detained for general immigration violations are released from detention and appointed legal guardians, and the “Institution for Children with Behavioural Disorders” in Zagreb is responsible for their care and custody.10 Croatian law, however, defines minors as individuals less than sixteen years of age; thus, evaluative visits to the center at Ježevo have returned with reports of detainees as young as sixteen.  Unfortunately, there are no specific treatment and accommodation facilities for other vulnerable groups such as the elderly, pregnant women, or victims of torture. And while the Reception Centre for Asylum Seekers in Kutina offers a separate facility for asylum seekers, including unaccompanied minor applicants, no information is available regarding the material conditions for those in detention at this center, nor do any guarantees exist that asylum-seekers will be placed there.

Treatment of Asylum Seekers at Detention Centers

Croatia's treatment of asylum seekers and migrants continues to fall short of international and European standards. Asylum seekers and migrants held at the Jezevo Detention Center are unable to challenge their detention in a timely manner. Asylum seekers now are able to communicate through an interpreter at all stages of the procedure, but new arrivals at the border have inadequate access to an interpreter.11

The refugee recognition rate remains extremely low: only one of 93 applicants in the first seven months of 2009 was granted.12 Asylum seekers continue to be charged with the offense of illegal entry.13 Recognized refugees face difficulties and discrimination in accessing their rights due to their status.14

Alternatives to Detention

No data was available at the time of this report regarding alternatives to detention in Croatia.

Additional Information

From European Union: European Commission, Commission Working Staff Document: Croatia 2008 Progress Report, 5 November 2008, SEC(2008) 2694 final, available at: http://www.unhcr.org/refworld/docid/4912e6f92.html (accessed 29 July 2009) (publication date 5 November 2008)

Chapter 24: Justice, freedom and security

There has been some progress in the field of migration. The Action Plan for the implementation of the migration policy was adopted by the Government in May 2008. It covers a short period (2007-2008) and tackles issues such as legal and illegal migration, protection of asylum seekers and other refugees, and suppression of trafficking in human beings. The new Aliens Act, entered into force in January 2008. It restricts inter alia the conditions for a temporary residence permit and for family reunification for non-Croatian citizens.

The illegal migration deportation center at Ježevo remains overcrowded. The number of
illegal migrants fell in 2007 to about 4,000 compared to 5,564 in 2006. However, there has been an increase in illegal unaccompanied minors, who make up 12% of total illegal migrants in 2007. There are no specific treatment and accommodation facilities for minors and vulnerable groups. The number of forced returns has increased by 3% (2,439 cases in 2007 compared to 2,348 in 2006). There has been no increase in the number of staff at the Ministry of Interior for dealing with forced return and illegal migrants.
Croatia has 24 readmission agreements in force. Seven of these still have to be aligned with the EU model. Further readmission agreements are to be finalized with Serbia, Montenegro, Slovakia, Ukraine, Moldova and Cyprus.

Some progress can be reported in the field of asylum, as the new Asylum Act entered into force in January 2008. The Commission for asylum (second instance appeal body replacing the former Government Commission for asylum) was formed in April 2008. A full-time president of the Commission was appointed, together with four part-time members, two of whom come from civil society and the academic world. Although this is a step in the right direction, there is still concern regarding the independence of this Commission, given the oversight role of the authorities in the appointment process. In March 2008, five implementing acts for the Ministry of the Interior were adopted covering accommodation forms and data collection; legal aid, financial aid, and medical examinations. However, further alignment of the legislation with the acquis in this area is needed.

The case workers in the Ministry of the Interior have received training on the Refugees
Convention and the EU acquis, as well as a manual on case handling, the direct outcome of which is the improved quality of the procedure for determining refugees' status. On the other hand, the restricting of personal interviews in the accelerated procedure for asylum seekers is a matter of concern.

The number of asylum seekers in Croatia continues to increase, with 170 procedures in 2007 (compared to 105 in 2006) and already 50 for the first quarter of 2008. Croatia granted asylum status in two cases. Even if Croatia is still a transit country (50% of the asylum seekers leave Croatia before their case is settled), the increase in applications is likely to expand after Croatia's accession to the EU. Current staffing levels are not adequate to meet this future demand.

To date, a number of asylum seekers applying at the border or at the illegal migrants'
detention centre of Jezevo have been detained and convicted of illegal entry. This shows a very restrictive interpretation of the new law. EN 57 EN

Some progress has been made concerning Visa policy. Following the new Aliens Act, a new Regulation on the Visa Regime entered into force in May 2008, which further aligned with EU rules. The visa requirement for citizens from Serbia and Montenegro has again been suspended, until end of 2008. IKOS, the information system which forms the basis of the future Croatian Visa Database, has now been implemented in 68 of the 72 diplomatic missions and consular posts and should be completed. The number of visas issued at the borders increased again in 2007, reaching over 8,300 visas - a 60% increase over 2006. Croatia should aim to minimize the issuing of visas at the border to exceptional cases. Currently there is limited equipment available at the borders to detect false or forged documents. The system for issuing visas is also still not unified or consistent.

Croatia also needs to step up its preparations for the introduction of biometric identifiers in passports and travel documents.


1 European Union: European Commission, Commission Working Staff Document: Croatia 2008 Progress Report, 5 November 2008, SEC(2008) 2694 final, available at: http://www.unhcr.org/refworld/docid/4912e6f92.html (accessed 2 August 2010)


2 European Union: European Commission, Commission Staff Working Document: Croatia 2009 Progress Report, 14 October 2009, SEC(2009) 1333, available at: http://www.unhcr.org/refworld/docid/4adc274a2.html (accessed 2 August 2010)


 3European Union: European Commission, Commission Working Staff Document: Croatia 2008 Progress Report, 5 November 2008, SEC(2008) 2694 final, available at: http://www.unhcr.org/refworld/docid/4912e6f92.html (accessed 2 August 2010)


4 European Union: European Commission, Commission Working Staff Document: Croatia 2008 Progress Report, 5 November 2008, SEC(2008) 2694 final, available at: http://www.unhcr.org/refworld/docid/4912e6f92.html (accessed 2 August 2010)


5 European Union: European Commission, Commission Staff Working Document: Croatia 2009 Progress Report, 14 October 2009, SEC(2009) 1333, available at: http://www.unhcr.org/refworld/docid/4adc274a2.html (accessed 2 August 2010)


6 Human Rights Watch, World Report 2009 - Croatia, 14 January 2009, available at: http://www.unhcr.org/refworld/docid/49705fa542.html [accessed 2 August 2010]


 7Ibid.


 8Ibid.


9 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Croatian Government, 9 October 2008, available at: http://www.detention-in-europe.org/images/stories/cpt%20report_detention %20facilities_croatia_4-14%20may%202007.pdf


10 Jesuit Refugee Service, Detention in Europe – Croatia, 22 October 2008, available at: http://www.detention-in europe.org/index.php?option=com_content&task=view&id=165 &Itemid=199 (accessed 2 August 2010)


 11 Human Rights Watch, World Report 2010 - Croatia, 20 January 2010, available at: http://www.unhcr.org/refworld/docid/4b586cf6c.html (accessed 29 June 2010)


 12Ibid.


 13European Union: European Commission, Commission Staff Working Document: Croatia 2009 Progress Report, 14 October 2009, SEC(2009) 1333, available at: http://www.unhcr.org/refworld/docid/4adc274a2.html (accessed 9 June 2010)


 14Ibid.



Denmark Detention Overview

Introduction

Immigration law and immigrant detention policy have undergone a series of legislative revisions in Denmark in the last decade, some the formulations of a center-right political bloc whose foothold in the central government has deepened of late—in large part because of increased tension between native Danish citizens and a growing Muslim immigrant population.  For example, new legislation passed in November 2008 imposed further restrictions on unlawful immigrants whose orders of expulsion cannot be executed for reasons of safety.  With few exceptions, the new law requires these immigrants to live in designated centers for asylum-seekers and to report daily to the police, imposing a one-year imprisonment sanction for those who fail to comply with this requirement.1  Such volatile cultural and political attitudes towards immigrants in Denmark and Danish immigration policy in general require increased vigilance in safeguarding the rights of those detained in immigrant prisons and working towards alternatives to the detention model.

Current Detention System

Danish law mandates detention for foreign nationals who lack the proper immigration documents for presence in the country.  In addition, in limited circumstances, immigration officials will also detain asylum applicants.  Once detained, men and women are kept in separate facilities.  Those being held in detention are permitted to receive visits from their families and to be seen by a judge or some other adjudicative official. Free legal aid is given to all those in detention.2

Parents or guardians of minor children are held in detention with their children, rather than children being released to foster care or into community settings. If detained, children are held in less restrictive environments than adult-only detention centers. The average length of detention in Denmark is several months. 

There are also some exceptions to the general prohibition against detaining asylum seekers.  Accordingly, enforcement officials detain asylum seekers in the following circumstances: 1) when it is not possible to establish the identity of an asylum seeker; 2) when an asylum seeker is refused for possible deportation to another country according to the Dublin Convention or return to a safe third country; 3) when an asylum seeker refuses to comply with law enforcement following a denied asylum application,; 4) when an asylum seeker's application for asylum is expected to be processed expeditiously; 5) when an asylum seeker works in Denmark without a residence permit; and  6) when an asylum seeker commits a crime and is awaiting deportation following a denied asylum claim.

A detained asylum seeker must be brought before a court within 72 hours and thereafter every four weeks.  Detention of a person whose case is expected to be processed expeditiously cannot be detained from more then 7 days.  Otherwise there is no limit on the duration of detention.

Denmark operates only one closed detention center for immigrants: the Ellebaek Foreigners Detention Centre, established and run by the Prison and Probation Service of the Danish government. Here, several classes of immigrants may be detained in accordance with the Aliens Act: regular asylum seekers; asylum seekers awaiting a decision on which European Union state will adjudicate their applications under the Dublin II Regulation; asylum seekers awaiting deportation; and asylum seekers who had been sentenced for a criminal offence and were awaiting deportation while their asylum application was still pending.3 In addition to the detention facility at Ellebaek, a number of open centers for asylum seekers exist throughout the country, the largest of which is the Sandholm Camp for asylum seekers.4  The Danish Red Cross oversee the day-to-day operation of the Sandholm camp, while ultimate responsibility for its occupants lies with the Ministry of Refugee, Immigration and Integration Affairs.5

Immigrant detainees in Denmark receive medical treatment and other types of health care while in detention. At the Sandholm Centre, for example, a general practitioner attends for 10-15 hours each week along with three nurses.  All newly arrived inmates receive a basic medical screening.  By recommendation of the resident medical staff, an inmate may be referred to a specialist outside the detention center.  Although no psychiatrist or psychologist is available at the center itself, under certain circumstances a detainee may be referred to a psychiatrist in different detention facility.

According to a recent report, general conditions within the Ellebaek detention center are satisfactory, although compared to the Danish prison system in general, the Ellebaek center demonstrates troubling inadequacies.  Immigrants detained at Ellebaek often go uninformed as to the estimated length of their detention, a situation complicated by a lack of controls on length of detention for immigrants.

Alternatives to Detention

According to the Danish Aliens Act, detention of a foreign national should only take place if other, less coercive, measures are deemed insufficient to ensure the presence of the person in question.6  Consequently, the Act allows the police to order certain measures as alternatives to detention.  Alternative measures to the detention of asylum seekers are used according to article 6.1 unless they are considered insufficient—that is, if the circumstances of the asylum seeker fall under one of the enumerated conditions for detention.  Another article of the Act—Article 34—dictates other alternatives to detention, which include the use of measures such as bail, single address continuity, and regular check-ins with the police.  The last of these alternatives—police reporting—may be applied for failing to comply in providing information regarding an immigration case, failing to report to an immigration interrogation, acting with violent or threatening behavior, failing to comply with order of living in specific place, or refusal to assist the police in making arrangements for departure.

___________________________

1 Amnesty International, Amnesty International Report 2009 - Denmark, 28 May 2009, available at: http://www.unhcr.org/refworld/docid/4a1fadf2c.html (accessed 30 July 2009)

2 UN Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak : addendum : mission to Denmark, 18 February 2009, A/HRC/10/44/Add.2, available at: http://www.unhcr.org/refworld/docid/49b794bb2.html (accessed 30 July 2009)

3 Council of Europe: Committee for the Prevention of Torture, Report to the Government of Denmark on the visit to Denmark carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 11 to 20 February 2008, 25 September 2008, CPT/Inf (2008) 26, available at: http://www.unhcr.org/refworld/docid/48db4e5f2.html [accessed 30 July 2009]

4 European Parliament Committee on Civil Liberties, Justice and Home Affairs: Delegation to Denmark, Minutes, 10/11 April 2008, available at: http://www.europarl.europa.eu/document/activities/cont/200804/20080428ATT27782/20080428ATT27782EN.pdf

5 Ibid

___________________________

From Freedom House, Freedom in the World 2009 - Denmark, 16 July 2009, available at: http://www.unhcr.org/refworld/docid/4a6452bfc.html (accessed 30 July 2009)

Denmark has closed 47 asylum centers since the introduction of the 2002 immigration law. In June 2006, the government secured reforms including tighter unemployment rules designed to promote job-seeking and greater workforce integration by immigrants. However, in the 2007 Migrant Integration Policy Index, Denmark was ranked the second-worst performer out of 28 mostly EU countries for migrant eligibility to enter the labor market.

From Amnesty International, Amnesty International Report 2009 - Denmark, 28 May 2009, available at: http://www.unhcr.org/refworld/docid/4a1fadf2c.html (accessed 30 July 2009)

Refugees and asylum-seekers

At least 11 Iraqis were forcibly returned to Iraq, contrary to the recommendations of the UNHCR, the UN refugee agency.

Some asylum-seekers who had been subjected to torture or other ill-treatment did not receive adequate medical treatment in Denmark.

From Jesuit Refugee Service, Detention in Europe, Denmark. http://www.detention-in-europe.org/index.php?option=com_content&task=view&id=160&Itemid=193

Family, lawyers, representatives of the Church(es) and of NGOs may visit the detainee. Apart from visitor hours, there are no restrictions on visits. The detainees are allowed one weekly visit but more visits can be granted. The authorities may restrict a certain person for visiting a detainee if this is considered necessary due to security reasons.

Women are accommodated separately.

In order to prevent violent behavior an inmate may be excluded from association with other inmates, if "the inmate exhibits gross or frequently repeated impermissible behaviour obviously incompatible with continued association with other inmates." If there is a risk of assault or intimidation an inmate can be moved to another section.

Children under 15 years of age cannot be deprived of their liberty. Only very few persons under 18 years of age are deprived their liberty in the institution. If a person under 18 years of age has to stay in the institution, the institution will consider in which unit he/she can be accommodated in the best way. The institution will be very attentive to the young persons’ special needs.

There is a special section (two rooms with toilet and bath) where one family/mother can be accommodated with a child(ren) less than 7 years of age. They have no contact with other inmates and they will be in the section for less than 72 hours. 

The overall average of detention duration (January 2006 – July 2006) is 42 days. After 3 days of administrative detention, the court should take a decision of continued detention, and as such the detention can after 3 days not longer be considered as "administrative detention."

In relation to administrative detention, the legal maximum duration is three days, but it can be prolonged if decided by the court.

Further Information: 

From UN Human Rights Council, Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak : addendum : mission to Denmark, 18 February 2009, A/HRC/10/44/Add.2, available at: http://www.unhcr.org/refworld/docid/49b794bb2.html (accessed 30 July 2009)

48. The Special Rapporteur notes that an alien must be brought before a court for it to rule on the lawfulness of deprivation of liberty (section 37 (1) of the Aliens Act). The court must fix a time limit for the detention, which it may extend repeatedly by four weeks each time. The Special Rapporteur welcomes the fact that such a mandatory habeas corpus procedure exists and that free legal aid is provided to all aliens in detention. However, according to information received, in the past five years, on only two occasions did the court not confirm the prolongation of detention when requested by the police. Furthermore the Special Rapporteur was informed that about 50 per cent of the inmates of Ellebaek accept an automatic prolongation of their detention by signing a document to that effect in advance (According to the Government, in cases where a person has accepted and signed the prolongation of the detention, this prolongation must always be approved by the court). To the Special Rapporteur, these are signs that de facto the procedure of legal challenge of deprivation of liberty under article 37 of the Aliens Act is not as effective as one might expect.

From Council of Europe: Committee for the Prevention of Torture, Report to the Government of Denmark on the visit to Denmark carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 11 to 20 February 2008, 25 September 2008, CPT/Inf (2008) 26, available at: http://www.unhcr.org/refworld/docid/48db4e5f2.html (accessed 30 July 2009)

C. Establishments for foreign nationals detained under aliens legislation

1. Preliminary remarks

81. Ellebæk (formerly "Sandholm") Prison and Probation Service Establishment for Asylum-seekers and others deprived of their liberty had previously been visited by the CPT in 1990 and 2002.41 It is located twenty-five km north of Copenhagen, on the premises of a former military barracks. With an official capacity of 118, at the time of the visit it was holding 72 detainees, of whom 8 were women.

The Ellebæk Institution was used to hold several categories of persons detained in accordance with the Aliens Act: asylum seekers processed according to the normal procedure; asylum seekers awaiting a decision on whether Denmark or another EU member state was responsible for dealing with their applications in accordance with the so-called “Dublin II Regulation”; persons whose asylum applications had been rejected and who were awaiting deportation; and, finally, asylum seekers who had been sentenced for a criminal offence and were awaiting deportation while their asylum application was still pending.

According to the Aliens Act, detention of a foreign national should only take place if other, less coercive, measures are deemed insufficient to ensure the presence of the person in question. The Aliens Act does not establish a maximum length of time during which a foreign national may be detained. Pursuant to Section 37(3), the court determines a time-limit for continued detention which may subsequently be extended, but by no more than four weeks at a time. In practice, the courts have accepted detention periods of up to two years.

2. Ill-treatment

82. The CPT's delegation did not receive any allegations of physical ill-treatment by staff working at the Ellebæk Institution and there were no indications of inter-detainee violence. The delegation observed that the general atmosphere was relatively relaxed, despite the fact that detainees obviously experienced considerable psychological stress and frustration due to the uncertainty of their situation.

However, a number of allegations were made about verbal abuse and rude behaviour with racist connotations by certain members of custodial staff. The CPT recommends that custodial staff at the Ellebæk Institution be reminded that they must always treat detainees in their custody with respect.

3. Conditions of Detention

83. At the outset, the CPT wishes to reiterate that persons detained under aliens legislation should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation. Care should be taken in the design and layout of such premises to avoid as far as possible any impression of a carceral environment. As regards in particular asylum seekers, they should only be detained as a last resort, for the shortest possible duration, and after other, less coercive, measures have proven insufficient to ensure the presence of the person in question.

a. Material Conditions

84. The Ellebæk Institution comprised five detention units (16 East, 16 West, 17, 18 East and 18 West). Another detention unit (unit 67) was not in use at the time of the visit.

Detainees were as far as possible placed in units in accordance with their nationality. Two to three persons shared cells measuring some 18 m². Female detainees were being held in a separate unit (No. 17), and a small unit was reserved for families. The delegation was informed that the latter unit was used three to four times a year on average, and the detention period for families usually lasted between 24 and 48 hours. The CPT welcomes the fact that female detainees and families are now being detained separately.

A special high security unit (18 West), with reinforced walls, was used to house detainees who were suspected of planning, or who had attempted, to escape; there was no difference in the regime applied to these detainees in comparison to the other units.

85. Material conditions of detention were on the whole adequate. However, the delegation noted that the detention units were in a rather run-down state, and most of the cells visited were in need of cleaning. Moreover, beds and other furniture were not of the same high standard as those in the other Danish prisons and detention establishments visited. Indeed, the beds were uncomfortably hard, and bed linen was in some cases worn to the seams. Further, the recreational areas appeared to be in a bad state of repair. The CPT recommends that efforts be made to clean and refurbish the detention units of the Ellebæk Institution, improve the bedding arrangements and make the environment more appealing.

86. As regards food, the delegation was informed that it was delivered ready-made to the establishment and supplemented with fresh salad, rice and bread; fruit was served twice a day. Halal and vegetarian dishes were offered to detainees in order to cater for their dietary habits. This is a welcome improvement in comparison with the situation observed at the time of the 2002 visit. However, many detained persons still complained that the food was not varied enough. The CPT invites the Danish authorities to consider enabling persons detained at the Ellebæk Institution to prepare their own food.

b. Activities

87. Detainees benefited from an open door regime within their units throughout the day, which is a welcome approach in an establishment for immigration detainees. There was a reasonable offer of activities, including production work, maintenance work, gardening, education (English and social studies) and communal activities (once a month). Participation in work and educational activities was remunerated in the same way as for prisoners. The delegation was informed that some 20-25 detainees were occupied in production activities and about 15 other detainees were engaged in cleaning, gardening, and maintenance activities.

Further, detainees had access to TV (including to foreign and international channels) and newspapers (however, only in Danish). At least one hour of outdoor exercise was offered every day. As for sports activities, detainees had access three times a week to a gym and, weather permitting, outdoor sports activities were also offered.

88. Nevertheless, it appeared that the regime at the Ellebæk Institution was based mutatis mutandis on that applicable to remand prisoners in Danish prisons, which did not reflect sufficiently the specificity of the establishment’s functions and limited the number of activities available. In the CPT’s view, both detainees and staff would benefit from a regime especially tailored to an establishment holding foreign nationals who are not serving sentences, but who are being detained administratively with a view to enforcing deportation.

In the light of the above remarks, the Committee encourages the Danish authorities to enlarge the offer of purposeful activities to persons held at the Ellebæk Institution (e.g. provision of books and recent newspapers in various foreign languages, games, etc.). The longer the period for which persons are detained, the more developed should be the activities which are offered to them, including the possibility to acquire skills that may prepare them for reintegration in their countries of origin upon return.

4. Health Care

89. At the time of the visit, the health-care staff at the Ellebæk Institution consisted of one general practitioner (attending for 15 hours a week) and two full-time nurses (30 hours per week). Dental care and access to medical specialists was provided by means of outside consultations.

The delegation did not receive any complaints from detainees regarding access to medical care in the Ellebæk Institution. Quite to the contrary, many detainees expressed their satisfaction with the work of health-care staff. The delegation was satisfied that the level of somatic, including dental, care provided to detainees in the establishment was adequate.

90. In accordance with the previously-mentioned Executive Order No. 374 of 17 May 2001 on the provision of health care in institutions under the Prisons and Probation Department, all new arrivals were offered an initial interview with a nurse in order to ascertain their medical needs, including for psychiatric treatment or psycho-social intervention. This is a positive step forward. However, as already pointed out in paragraph 58, the initial interview of new arrivals should be obligatory, not an option offered to them. This is particularly important in view of the fact that a large proportion of detainees held at the Ellebæk Institution come from parts of the world affected by tuberculosis and may otherwise have poor health.

The CPT recommends that the Danish authorities take urgent steps to introduce systematic medical screening of all persons admitted to the Ellebæk Institution as soon as possible after their admission.

91. As regards psychiatric care, the delegation was informed that detainees in need of examination or treatment were transferred to the hospital adjacent to the Western Prison in Copenhagen or, in acute cases, to the psychiatric department of the nearby Hillerød Hospital.

However, the delegation was concerned by the lack of arrangements for regular visits to the Ellebæk Institution by a psychiatrist and a psychologist. The CPT must stress the need for particular attention to be paid to the mental health and psychological state of foreign nationals in custody, some of whom are asylum seekers and may have experienced difficult situations – including torture and other forms of ill-treatment – in their home countries, while others might be suffering from psychological stress while awaiting deportation. The Committee recommends that measures be taken to ensure regular attendance by a psychiatrist and a psychologist at the Ellebæk Institution and to step up psycho-social interventions.

5. Other issues

a. Staff

92. The staff at the Ellebæk Institution consisted of 55 full-time and 3 part-time custodial officers, 4 workshop supervisors, a teacher, a pedagogue, a gym instructor and a maintenance worker. At the time of the visit, three more positions were not filled (two workshop supervisors and one pedagogical assistant). A Lutheran priest of the Danish State Church was attached to the establishment; however, according to the management it had for a long period proved difficult to find an imam. A decision in this regard was expected to be taken by the Prison and Probation Service in the summer of 2008. Taking into account the relatively large number of Muslims among the detained persons, the CPT trusts that the Danish authorities will be able to provide the services of an imam in the near future.

93. The delegation observed that, on the whole, staff-detainee relations were reasonably relaxed. All staff spoke English and relied on detainees to translate into their own languages in every day dealings. Professional interpretation was available for more important conversations, including with the medical doctor. The delegation noted that some progress had been made in comparison to the situation in 2002 in terms of sensitizing custodial staff to the cultural differences of detainees and the importance of being able to recognize if detainees were showing stress symptoms. The CPT welcomes this positive development and urges the Prison and Probation Service to continue focusing on the special training needs of custodial staff dealing with immigration detainees.

94. The ability to identify staff, either by name or number, constitutes an important safeguard against ill-treatment during detention. In this respect, the delegation noted that none of the custodial staff at the Ellebæk Institution was wearing any visible means of identification. The CPT recommends that all custodial staff at the Ellebæk Institution be required to wear some form of identification in a visible place on their uniform.

b. Information to Detainees and Contact with the Outside World

95. The delegation received copies of a leaflet in English (which also existed in French and German) containing information about the administrative detention of foreigners and the regime applicable in the Ellebæk Institution. The introduction of this leaflet, which contains useful and comprehensive information for detainees, is a welcome development. However, many detainees alleged that they had not been given a copy of the leaflet and lacked information concerning their situation. The CPT recommends that steps be taken to ensure that the information leaflet is systematically provided to all detained persons upon their arrival at the Ellebæk Institution.

96. Detained foreign nationals were entitled to make phone calls (including international calls) and to receive visits of at least one hour per week.42 Further, all detainees had the right to unlimited visits from their legal advisers. No particular problems were observed in this respect.

c. Discipline

97. Detained foreign nationals who committed a violation of the internal regulations could incur disciplinary punishment in the form of a warning, fine or confinement to a disciplinary cell. Temporary prohibition of association could also be imposed.

The disciplinary procedure appeared to be satisfactory. Before a disciplinary punishment was imposed, a hearing was held at which the detainee had the possibility to give his/her version of the matter at hand. Detainees had the right to receive the disciplinary punishment decisions in writing and could lodge complaints against them with the Prison and Probation Service. The latter’s decision could in turn be appealed against to the Parliamentary Ombudsman, and in certain cases before the courts. Further, the delegation gained the impression that disciplinary punishments were imposed sparingly and in a proportionate manner. However, the delegation noted that the disciplinary cells (which were empty at the time of the visit) were very cold; when in use, adequate heating should be provided in the disciplinary cells.

Detention Overview: France

Introduction

France receives the highest number of asylum seekers per annum (35,160 in 2008) of any country in Western Europe and is third among industrialised nations after the United States and Canada. The largest numbers of asylum seekers in France in 2008 originated from Russia, Serbia, Turkey, Sri Lanka, and the Democratic Republic of Congo. French immigration and asylum policies have tightened in recent years. In 2006, the French Interior Ministry instituted the controversial practice of establishing targets for deporting undocumented immigrants each year.

Current Detention System

France currently detains immigrants who lack the proper immigration documents for entry or presence in the country, as well as immigrants who declare an intent to seek asylum at a point of entry.  Authorities maintained administrative holding centers for foreigners whom they could not immediately deport. There were 26 holding centers on the mainland and three in the overseas territories.1

From the point of arrest, an immigrant will typically be sent to one of two types of immigrant detention centers: 1) point-of-entry centers, where immigrants may be held up to 20 days and 2) general holding centers, where immigrants may be held up to 32 days.  Either a government entity or the civilian police are responsible for day-to-day management, depending on the facility. 

These immigrant-specific detention centers house immigrants who are awaiting permission to enter the country or awaiting arrangements to be made for their deportation; however, a third possibility exists for immigrant detention in France: criminal prisons. French law permits foreigners who lack the proper documents for staying in the country to be detained in criminal detention centers rather than immigrant detention centers.

Treatment in Detention

Whether France’s detention centers are substantially similar to criminal prisons is a matter of interpretation.  As places designed for the deprivation of liberty and replete with prison-like structural elements such as barbed wire, these detention centers are very like criminal prisons.  As places where foreigners are permitted to move about the holding center, receive visitors, and keep person cell phones, among other allowances, these centers are not like criminal prisons.  

In all facilities, men and women are kept in separate areas. Promulgation of detention center rules, however, varies—in some places, the rules are told by the guards; in others, a series of orientations are given; in others, the rules are unknown. Those being held in detention are allowed to call their families both when they arrive and on a regular basis thereafter. They can also write and receive letters and receive visits from their families.  At the same time, there is no grievance system in place for immigrant detainees unless access to a non-governmental organization is available. Those in detention are sometimes locked in holding rooms without food, searched without reasons, strip searched, or restrained with force. 

In centers at ports of entry, a foreigner must be seen by after four days of detention, and eight days after that, if still detained. Those detained in holding centers have the right to be seen by a judge or adjudicative official after the 48th hour of detention, and again fifteen days later, if still detained.  An immigrant appearing before a judge in France has a right to free counsel, or to hire a private attorney. In theory, family and/or lawyers of immigrant detainees should be informed when a detainee is transferred to a new facility, although the reality may depart from this standard.  

Regarding health care, French immigration law provides that a detained immigrant has the right to be seen by a doctor. Whether or not a facility has an on-site doctor or medical station varies center-by-center. Despite any medical attention a detainee may receive, in general, these services are inadequate for mental health issues.  

Parents or guardians of minor children are detained in specific facilities with their children. Children do not receive any education while detained.  Children’s detention environments are not less restrictive than those of adults. No special consideration is given in immigrant detention centers to victims of torture, asylum seekers or the elderly. Special consideration is inadequate or non-existent even with respect to  pregnant women or women with young children. At various different times, immigrant facilities have kept several-week old babies in detention with their parents, eight-month old pregnant women, the elderly, and the infirm. Non-governmental agencies are permitted inside the immigrant detention centers, and they offer programs or services. Detention stays are on average several days long, and by law last a maximum of thirty-two days.

The conditions in “transit zones” are even more alarming. Transit zones remain the only place in France where children are detained jointly with adult strangers, and where men and women are held in one single facility. The airport detention center is poorly supervised and children have been sexually harassed by fellow detainees, have seriously harmed themselves, and suffered from anxiety and sleep disorders.2

The government has been criticized for substandard treatment of unaccompanied minor children arriving at the country's international airports.3 Following its June review of France, the United Nations Committee on the Rights of the Child said it was "deeply concerned" about the situation of unaccompanied children held in airport waiting zones. Those arriving at Paris Charles de Gaulle airport were routinely detained with adults and deported, including to countries they had merely transited, rather than their countries of origin. Those seeking protection as refugees faced obstacles to filing a claim and appealing negative decisions based on fast-track evaluations, an expedited procedure which makes it difficult to challenge one’s deportation.4

Alternatives to Detention

French law allows for some immigrants to be released from detention facilities and kept under supervision.  Immigrants under state supervision are treated differently depending on the center: some are allowed to leave from time to time and return only to report to supervision; others are allowed to leave their room but not the facility; other are made to stay in their room unless leaving for meals or recreation.

In some centers, after being seen by a judge, a foreigner can be "assigned at residence" until a deportation measure is executed (if executed) under the following conditions: if the individual has a valid passport (that the Administration keeps), if the individual has an address, if the individual offers guarantees that s/he will not flee, and if the individual goes on a daily basis at the police station to sign.

Additional Information

From Freedom House, Freedom in the World 2009 - France, 16 July 2009, available at: http://www.unhcr.org/refworld/country,,FREEHOU,,FRA,,4a6452b828,0.html (accessed 14 September 2011)

Normal.dotm 0 0 1 27 156 Jesuit Refugee Service/USA 1 1 191 12.0

France's antiterrorism campaign has included surveillance of mosques, and apparently unrelated government raids, such as those involving tax violations, have appeared to target places where Muslims in particular are found, like halal butcher shops. Terrorism suspects can be detained for up to four days without being charged. France is more willing than other European countries to deport radical Muslim clerics for speech that is considered incitement to extremism or terrorism. The police are frequently criticized for aggressiveness in random personal checks, which often target youths of North and sub-Saharan African descent. Such police checks have deepened resentment between minorities and the authorities. A Council of Europe delegation reported in 2004 that French prisons suffer from overcrowding and poor conditions, though no prisoner maltreatment was found.

The violence of 2005 and 2007 has fueled concerns about Arab and African immigration and the failure of integration policies in France. The rise of the National Front has tempted the government to tighten immigration and asylum rules, which are perceived to be abused by economic migrants. In 2005, the government supported the beginning of talks on Turkish accession to the EU, but there is strong popular opposition in France to Turkish membership and the influx of Muslim migrants it could bring. Rachida Dati was named justice minister in 2007, making her the first Muslim, and the first person of non-European descent, to become a minister in the French cabinet. 

From United States Committee for Refugees and Immigrants, World Refugee Survey 2009 - Europe, 17 June 2009, available at: http://www.unhcr.org/refworld/docid/4a40d2a6c.html (accessed 30 July 2009)

…the Dublin Regulation, which generally makes the first EU country through which asylum seekers pass responsible to adjudicate their claims.

In February, the Norwegian Immigration Appeal Board decided against returning asylum seekers to Greece under the Dublin Regulation based on reports of violations of asylum seekers' rights there. In March, a local court in Sweden ruled against returning a handicapped Iraqi asylum seeker to apply there. In April, UNHCR advised other governments similarly to refrain and to examine the cases themselves. Finland promptly did so but France refused.

Most EU member states consider asylum seekers who pass through what they deem to be safe countries of transit to be ineligible for asylum and may return them to those countries, including fellow EU member states or countries that they deem to uphold the 1951 Convention.

France uses airport transit visas to prevent asylum seekers with onward tickets, particularly Chechens, from stopping to apply in France.

France's new Aliens Bill grants asylum seekers at the border 24-hour suspensions of deportation to file appeals but the deadline for filing appeals inside the country was 15 days, suspending deportation for the appeal only in certain cases. 

From Amnesty International, Amnesty International Report 2010 - France, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a82a3c.html (accessed 2 August 2010)

Allegations of police ill-treatment and excessive use of force continued. Disciplinary procedures and criminal investigations into such incidents continued to fall short of international standards. Hundreds of migrants and asylum-seekers, including unaccompanied minors, were forcibly evicted from makeshift housing in Calais. Three Afghan nationals were forcibly returned to Afghanistan. Two released Guantánamo Bay detainees were granted residency in France. There were concerns that two new police databases could undermine the presumption of innocence. Legislative reforms threatened to weaken the independent oversight of law enforcement agencies.

Migrants, refugees and asylum-seekers

In May, the Minister of Immigration, Integration, National Identity and Mutually Supportive Development pursued a reform which could restrict the role of the six NGOs nominated to work in migration detention centres. The NGO Cimade launched legal challenges against the measure due to concerns that it would limit their role to providing information only and prevent them from giving legal assistance to detained migrants. In November, the Council of State upheld the reform.

In September, the Minister of Immigration stated that 20 million euros had been secured to build a new migration detention centre in the French overseas territory of Mayotte. However, no timeline was given for its construction. Photographs had been published anonymously in December 2008 showing the severe overcrowding and poor hygiene inside the existing centre.

On 22 September, approximately 300 migrants and asylum-seekers living in encampments around Calais, believed to be mostly Afghans trying to reach the UK, were detained by police. Their makeshift homes were demolished by bulldozers. According to police statements, 140 adults were taken into police custody and transferred to migration detention centres; 132 minors were taken to special accommodation centres. At the end of the year it was reported that all of the adults had been released; many were believed to have returned to the destroyed camps in Calais. Most of those released were left without shelter as a result of the destruction. Some were later granted asylum and others had asylum claims pending at the end of the year. The rest remained in France without regular status, at constant risk of being forcibly returned to their countries of origin. Further police operations against smaller encampments around Calais took place between October and December.

Three Afghan nationals, one of them detained at Calais, were forcibly returned to Afghanistan in October. 

[1] United States Department of State, 2009 Country Reports on Human Rights Practices - France, 11 March 2010, available at: http://www.unhcr.org/refworld/docid/4b9e52f62.html [accessed 14 June 2010]

[2] Human Rights Watch, Lost in Transit: Insufficient Protection for Unaccompanied Migrant Children at Roissy Charles de Gaulle Airport, 29 October 2009, 1-56432-557-1, available at: http://www.unhcr.org/refworld/docid/4aeab4b02.html [accessed 14 June 2010]

[3] United States Department of State, 2009 Country Reports on Human Rights Practices - France, 11 March 2010, available at: http://www.unhcr.org/refworld/docid/4b9e52f62.html [accessed 14 June 2010]

[4] Human Rights Watch, World Report 2010 - France, 20 January 2010, available at: http://www.unhcr.org/refworld/docid/4b586cf25d.html [accessed 14 June 2010]


Detention Overview: Germany

Current Detention System

German law mandates detention for immigrants most commonly when an immigrant states an intention to seek asylum at a port of entry or when an immigrant lacks the proper documentation for a lawful entry or stay within the country.

Once designated as eligible for detention, immigrants are usually brought to one of several detention centers throughout Germany, all of which are run by local law enforcement.  Some of these centers are designed exclusively for housing immigrant detainees, although others will incarcerate both criminals and foreign nationals together. Regardless of the demographic makeup of these centers, the conditions are substantially similar to those of criminal prisons or jails. (One exception is that detainee access to the outside world is more severely restricted in mixed criminal-foreign national detention centers than in immigrant-only centers.) NGO’s and other outside organizations may access most, but not all, detention centers for immigrants, in order to monitor conditions within the centers and to offer programs and services.

Once detained, an immigrant under state custody may leave his or her room, but not the detention facility itself. Detainees often go uninformed as to the rules or protocols of the detention centers, and no grievance system exists through which to lodge complaints or redress wrongdoing by center staff members.  There are no reports of strip searches, unreasonable searches, lockdowns in rooms without food, or forced restraint.  Men and women are kept in separate facilities. General communication policies in immigrant detention centers grant fairly broad permission to detainees to call their families on a regular basis, write and receive letters, and receive visitors.  

Telephone calls are considered affordable by Jesuit Refugee Services staff working in the area.  As noted above, however, immigrants detained in criminal prisons find communication with the outside world strictly limited, with restrictions as sever as one telephone call during the whole time detention or one visitation a month.  Medical care for detained immigrants is basic, limited to treatment for those suffering serious or chronic health conditions.

To regularize status or contest immigration violations, immigrants in detention may exercise their right to a hearing before a judge or some adjudicative official.  In addition, each detainee has the right to the services of legal counsel, although the government does not subsidize or cover the cost of attorney legal fees.  If retained as counsel, an attorney will usually be apprised of an impending detainee transfer by officials from the center where a client is detained, as will family members of the detainee.  In practice, the average length of detention is several months.

Treatment of vulnerable populations within the immigrant detention system varies.  A child discovered with irregular immigration status in Germany will typically not be detained.  Instead, the child will either be released to foster care or released with his or her family.  In those cases where a child is detained, however, no educational programs will be offered.  Pregnant women are also given special consideration while detained for immigration infractions. Asylum seekers, torture survivors and the elderly, however, are not treated differently from other adult detainees. Additionally irregular migrants and their children had limited access to health care, education, and judicial remedies in cases of labor rights violations.1

Amendments to the Law on the Legal Status of Foreigners adopted in 2006 eliminated the legal basis for the detention of asylum seekers. Since then, asylum seekers have generally not been detained; instead, they have been housed in a non-secure section of the Foreigners’ Registration Centre or in other open reception centers (Caritas 2007, p. 66, JRS 2010). According to UNHCR, however, asylum seekers are often turned away at the border without having their claims reviewed (U.S. State Department 2010). 

Alternatives to Detention

Many immigrants in detention are ordered deported, but for reasons of safety or other humanitarian reasons cannot be returned to their respective countries of origin.  In the event of a suspended deportation, an immigrant detainee may be released from detention and restricted to residence in the administrative district with jurisdictional authority over the immigrant.  Some districts also have departure facilities for foreigners who are legally required to leave the country.

Current Detention System

German law mandates detention for immigrants most commonly when an immigrant states an intention to seek asylum at a port of entry or when an immigrant lacks the proper documentation for a lawful entry or stay within the country.

Once designated as eligible for detention, immigrants are usually brought to one of several detention centers throughout Germany, all of which are run by local law enforcement.  Some of these centers are designed exclusively for housing immigrant detainees, although others will incarcerate both criminals and foreign nationals together.  Regardless of the demographic makeup of these centers, the conditions are substantially similar to those of criminal prisons or jails.  (One exception is that detainee access to the outside world is more severely restricted in mixed criminal-foreign national detention centers than in immigrant-only centers.)  NGO’s and other outside organizations may access most, but not all, detention centers for immigrants, in order to monitor conditions within the centers and to offer programs and services.

Once detained, an immigrant under state custody may leave his or her room, but not the detention facility itself. Detainees often go uninformed as to the rules or protocols of the detention centers, and no grievance system exists through which to lodge complaints or redress wrongdoing by center staff members.  There are no reports of strip searches, unreasonable searches, lockdowns in rooms without food, or forced restraint.  Men and women are kept in separate facilities. General communication policies in immigrant detention centers grant fairly broad permission to detainees to call their families on a regular basis, write and receive letters, and receive visitors.  

Telephone calls are considered affordable by Jesuit Refugee Services staff working in the area.  As noted above, however, immigrants detained in criminal prisons find communication with the outside world strictly limited, with restrictions as sever as one telephone call during the whole time detention or one visitation a month.  Medical care for detained immigrants is basic, limited to treatment for those suffering serious or chronic health conditions.

To regularize status or contest immigration violations, immigrants in detention may exercise their right to a hearing before a judge or some adjudicative official.  In addition, each detainee has the right to the services of legal counsel, although the government does not subsidize or cover the cost of attorney legal fees.  If retained as counsel, an attorney will usually be apprised of an impending detainee transfer by officials from the center where a client is detained, as will family members of the detainee.  In practice, the average length of detention is several months.

Treatment of vulnerable populations within the immigrant detention system varies.  A child discovered with irregular immigration status in Germany will typically not be detained.  Instead, the child will either be released to foster care or released with his or her family.  In those cases where a child is detained, however, no educational programs will be offered.  Pregnant women are also given special consideration while detained for immigration infractions. Asylum seekers, torture survivors and the elderly, however, are not treated differently from other adult detainees. Additionally irregular migrants and their children had limited access to health care, education, and judicial remedies in cases of labor rights violations.(1)

Amendments to the Law on the Legal Status of Foreigners adopted in 2006 eliminated the legal basis for the detention of asylum seekers. Since then, asylum seekers have generally not been detained; instead, they have been housed in a non-secure section of the Foreigners’ Registration Centre or in other open reception centers (Caritas 2007, p. 66, JRS 2010). According to UNHCR, however, asylum seekers are often turned away at the border without having their claims reviewed (U.S. State Department 2010). 

Alternatives to Detention

Many immigrants in detention are ordered deported, but for reasons of safety or other humanitarian reasons cannot be returned to their respective countries of origin.  In the event of a suspended deportation, an immigrant detainee may be released from detention and restricted to residence in the administrative district with jurisdictional authority over the immigrant.  Some districts also have departure facilities for foreigners who are legally required to leave the country.

Additional Information 

From: Freedom House, Freedom in the World 2009 - Germany, 16 July 2009, available at: http://www.unhcr.org/refworld/docid/4a6452b628.html (accessed 2 August 2010)

Anti-immigrant sentiments have led to attacks on members of ethnic minorities, but immigrants in Germany are less "ghettoized" than in some neighboring countries, such as France. A 2000 reform made it easier for those born in Germany of foreign parents to obtain citizenship, though the process remains cumbersome.

From: United States Committee for Refugees and Immigrants, World Refugee Survey 2009 - Europe, 17 June 2009, available at: http://www.unhcr.org/refworld/docid/4a40d2a6c.html (accessed 30 July 2009)

The EU's 2004 Qualification Directive requires members to grant refugee status to persons fleeing persecution by non-state actors and gender-based persecution and to include subsidiary forms of protection. The substance of its refugee definition broadly reflects that of the 1951 Convention except for its limitation to "third country national" or "stateless person" not including nationals of EU Member States. Besides being discriminatory, the repercussions may be greater as the EU enlarges and if other regions take it as a precedent. Notably, in 2008, nearly 900 Roma sought protection in Canada, making the Czech Republic a larger source of asylum claimants to that country than Iraq, Afghanistan, or Somalia.

The Directive's minimum standards also fall short of the 1951 Convention in their failure to recognize compelling reasons based on prior persecution as exceptions to the cessation of refugee status based on changes in country conditions. Its standards for internal protection alternatives to asylum are malleable enough for Germany and the Slovak Republic to consider almost any portion of the Russian Federation suitable for Chechens even as France does not

Under the Aliens Act of 2004, Germany revisits the basis of all grants of refugee status if the circumstances justifying them, namely the risk of persecution, have ceased and annulled the refugee status of 17,000 Iraqis. According to UNHCR, however, this process does not take into consideration whether any functioning government effectively protects the applicants' safety or basic rights.

Countries grant subsidiary protection—aspects and situations faced by asylum-seekers not covered in the 1951 UN Geneva Convention on the Status of Refugees—and refugee status at widely varying rates even to applicants of the same nationality. Sweden, for example, granted only just over 700 Iraqis refugee status but more than 2,900 subsidiary protection, while Germany granted refugee status to nearly 11,700 Iraqis and subsidiary protection to only 126.

In January 2008, Germany's federal Administrative Court ruled that the Government could no longer restrict the residence of refugees to the locality that issued their residence permits simply because they received public assistance.


From: United States Department of State, 2009 Country Reports on Human Rights Practices - Germany, 11 March 2010, available at: http://www.unhcr.org/refworld/docid/4b9e52f378.html (accessed 2 August 2010)

Freedom of Movement, Internally Displaced Persons, Protection of Refugees, and Stateless Persons

Protection of Refugees

The country is a party to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees. The constitution extends to persons persecuted on political grounds a right to apply for asylum in the country. The Asylum Procedure Act regulates the asylum procedure. The Residence Act can also grant refugee status in cases of non-state persecution.

As a rule an asylum seeker whose application has been rejected can appeal the decision within a period of two weeks of a notice being served. If an appeal is filed, deportation cannot be carried out until the court proceedings have been concluded with a final negative ruling. If the court confirms the rejection, the applicant is obliged to leave the country. If the applicant does not comply with this obligation, the applicant is deported to his/her home country.

The government processes the asylum applications of individuals found to have come from a safe country of origin at an international airport prior to their entry into the country. The same applies to applicants without any passport or without a valid passport. In these cases the law requires the Federal Office for Migration and Refugees either to make a decision on an asylum application within 48 hours or to allow the person to enter the country. An applicant has three days to appeal a negative decision to an administrative court. The law requires the court to rule within 14 days or allow the individual to enter the country.

Local nongovernmental organizations (NGOs) continued to criticize these periods of time as insufficient to allow applicants to prepare for hearings. In the case of a final rejection of a claim, authorities did not allow the individual to enter the country, and he or she had to stay at the airport reception center until departure. If it is not possible to return the individual within 30 days after arrival, the law requires a judicial order in order to keep the individual at the airport in the transit zone. The federal government claimed not to maintain statistics about detentions in airport facilities.

In May the human rights NGO Pro Asyl sharply criticized the government's "fast" procedure, whereby a person can apply for asylum at the airport and the Federal Office for Migration makes a decision within two days. Based on its examination of 32 cases between 2006 and 2007, the organization asserted that the minimum requirements for a fair procedure were not met, since the decision was made so rapidly. According to Pro Asyl's analysis, several decisions were incorrect and resulted in unjustified deportations. Pro Asyl also asserted that, during the two days they were awaiting an asylum determination, asylum seekers were detained in the transit portion of the airport under "inhumane" conditions.

According to the constitution, individuals who attempted to enter the country through a "safe country of transit," i.e., a member state of the EU or a country adhering to the 1951 convention, were ineligible for asylum and could be turned back at the border or, if they had entered the country, be deported to that safe country of transit. Several NGOs questioned this regulation during the year; they called for a right of appeal and individual consideration of each case in the country. Several courts in the country stopped planned deportations to another EU country under the abovementioned law. On July 20, the Frankfurt administrative court ruled that the federal government had to allow the Iranian defendant to file his asylum application in the country, although he entered the country via another EU country. On September 8, the Federal Constitutional Court suspended, for similar reasons, the deportation of an Iraqi asylum seeker to another EU country, where he had originally filed a first asylum application.

In practice the government generally provided protection against the expulsion or return of refugees to countries where their lives or freedom would be threatened on account of their race, religion, nationality, membership in a particular social group, or political opinion. In December, the Federal Ministry of Interior instructed the federal states to suspend the deportation of Syrians who face immediate deportation due to uncertainty about their treatment upon return to Syria.

Although the government processes refugee and asylum cases according to existing law, the approval rate was low. From January through July, authorities processed 16,854 asylum applications and granted 5,261 persons (31.2 percent) refugee protection under the 1951 convention and its 1967 protocol. In addition, authorities granted 860 persons (5.1 percent) temporary suspension of expulsion due to the situation in their countries of origin or based on other humanitarian grounds. The country rejected 6,248 applications (37.1 percent) and "resolved otherwise" (e.g. procedures were closed or applications withdrawn) another 4,485 applications (26.6 percent). All cases in which asylum was granted must be reviewed after three years to determine whether the grounds for asylum still apply.

On December 4, the interior ministers of the country's 16 federal states extended the residence permits of "long term" asylum seekers for another two years. This ruling affected approximately 30,000 asylum-seekers in the country who were refused asylum, but who nonetheless could not be sent back to their countries of origin. In order for these asylum seekers to remain in the country as residents, they are required to prove that they have "made a concerted effort" to find employment and can be expected to support themselves in the future. Some human rights organizations criticized the ministers' failure to grant the asylum seekers' residency outright.

During the year there were more than 14,000 officially registered refugees from Kosovo living in the country, including 10,000 Roma, all of whom are required by law to leave the country once the government determines they would no longer face any risks of oppression upon return to their homes. The Federal Interior Ministry has pledged to pursue a maximum of 2,500 repatriations per year to ensure that Kosovo is not overburdened by a sudden influx of returnees. In 2008, 900 Kosovars returned to the


From JRS Germany website

Germany detains

• asylum seekers who apply for asylum at international airports

• Illegally staying third-country nationals.

Concerning asylum seekers who apply for asylum at an international airport, legislation does not provide for a maximum duration of detention (§ 18 a Asylverfahrensgesetz/Section 18 a of the Asylum Procedure Act).

As far as illegally staying third-country nationals are concerned, they can be detained for 6 resp. 18 months (§ 62 Aufenthaltsgesetz/Section 62 of the Residence Act). Illegally staying third-country nationals are detained either in particular detention facilities/premises for the purpose of removal or in penitentiary institutions.



1 Amnesty International, Amnesty International Report 2010 - Germany, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a829c.html (accessed 2 August 2010)
Detention Overview – Italy

Introduction

The current political climate towards detained immigrants in Italy is hostile and punitive. A decision in early July 2009 by the government of Silvio Berlusconi and his allies in the Italian Senate to pass draconian legislation aimed at criminalizing unlawful migration has ushered in a new era for this Mediterranean coastal nation—an era that has worsened an already troubling and challenging environment in which to advocate for the rights of detained immigrants.  Although immigration remains a pressing issue for most European states, Italy’s unique geographic position ensures comparatively greater numbers of arrivals of asylum seekers and other immigrants from Africa, a situation that has inflamed some parts of the public against such an influx and allowed inhumane legislation to pass with some degree of public support.  Despite the passage of such legislation, the detained immigrant population in Italy is expected to rise, and without advocacy and policy reform, the already-poor treatment of immigrants in Italy will continue its downward slide.

General Detention Practices

An immigrant may be detained in Italy for failure to possess the proper documentation for entry into or continued presence in the country.  Although some centers exists that are designed specifically for immigrants, foreigners detained under immigration charges are generally detained with criminals; no real distinctions are made between immigration detainees and prisoners serving time for criminal offenses.  Although the average length of stay for detained immigrants is four months, these averages could skyrocket with the enforcement of new laws criminalizing illegal entry, the penalties for which can be as much as four years in prison.1  Even more troubling, in some cases, immigrants and asylum seekers have been denied the right to appeal the conditions or lawfulness of their detention.2

Conditions in centers for immigrants vary, although generally, treatment is sub-standard in almost all pertinent areas. Overcrowding, poor hygienic conditions, the denial of NGO and attorney access, and a lack of protections for vulnerable populations, including children, led one commission to recommend the closing of all immigration detention centers in 2007. Legal aid is also not provided for detained immigrants.  No improvements appear to have been made to the immigrant detention system since then, although the once-bustling immigrant detention and asylum center at Lampedusa — Italy’s Mediterranean outpost—now stands empty, a testament to the "success" of an agreement between Italy and Libya by which arrivals to the island are summarily returned to Libya without recourse to Italian administrative courts.3 The closing of this center is a grim capstone to broad policy initiative set in motion by the Berlusconi administration that has seriously eroded the rights of immigrants in detention as well as eliminated the possibility of establishing a place of refuge for thousands of asylum seekers crossing into Italy from Libya.

___________________________

From: Freedom House, Freedom in the World 2009 - Italy, 16 July 2009, available at: http://www.unhcr.org/refworld/docid/4a6452ac23.html [accessed 4 August 2009]

2 From: Amnesty International, Amnesty International Report 2009 - Italy, 28 May 2009, available at: http://www.unhcr.org/refworld/docid/4a1fade141.html [accessed 30 July 2009]

3 From Human Rights Watch, Treating refugees as refuse, 14 June 2009, available at: http://www.unhcr.org/refworld/docid/4a39e90fc.html [accessed 30 July 2009]

Alternatives to Detention

In some cases, asylum seekers will not be detained; however, this occurs only when the asylum seeker has the proper documentation to enter or remain in the country.  Following detention in a temporary center and identification by administrative authorities, an asylum seeker may be released from detention to an area designated by the local prefect.  Movement is restricted to that area until the resolution of the asylum claim.


From: Freedom House, Freedom in the World 2009 - ItalyF, 16 July 2009, available at:http://www.unhcr.org/refworld/docid/4a6452ac23.html [accessed 4 August 2009]

Berlusconi ran on pledges to crack down on crime and illegal immigration, and the new Parliament passed a number of measures on those issues during the year. One law criminalized illegal entry and set penalties of up to four years in prison for the offense, and another required the fingerprinting of all Romany residents, including children.

Italy is a major entry point for undocumented immigrants trying to reach Europe, and the government has been criticized for holding illegal immigrants in overcrowded and unhygienic conditions and denying them access to lawyers and other experts. The new government in 2008 began a crackdown on illegal immigration, starting with a major raid in May that led to the arrests of hundreds of suspected illegal immigrants, and a new law made illegal immigration a crime, punishable by up to four years in prison.


From "Italy's immigrants despair at new laws" at http://news.bbc.co.uk/2/hi/europe/8170187.stm 27 July 2009

Italy has come under fire from groups as diverse as the Vatican and the European Commission for its strict new anti-immigration laws, which were passed in early July. Under the legislation, illegal immigrants are liable to pay a fine of 10,000 euros (£8,700; $14,200) and can now be detained by the authorities for up to six months. In addition, people who knowingly house undocumented migrants can now face up to three years in prison. The new law also permits the formation of unarmed citizen patrol groups to help police keep order. The European Commission is investigating the new laws to see if they comply with existing EU legislation on immigration.


From: Human Rights Watch, Italy: Reject Anti-Migrant Bill, 22 June 2009, available at:http://www.unhcr.org/refworld/docid/4a3f8d3ec.html [accessed 30 July 2009]

The bill, approved by the lower house of deputies in mid-May, makes entering and remaining in Italy without a permit a crime punishable by a fine of up to ‚¬10,000. Doctors' unions and rights groups have expressed concern that the measure could compel public health and education officials to report undocumented migrants seeking medical care and other services, since the criminal code requires public officials to report criminal conduct.  Although the government dropped an earlier proposal to make this requirement explicit, as currently written, the bill could have the same result.

The law would also increase from two months to six the maximum time that authorities are allowed to detain migrants and asylum seekers for administrative purposes.

One of the most potentially dangerous aspects of the bill is a provision for a national framework for "citizens' groups" to patrol the streets to help law-enforcement authorities to combat crime. The groups would not be armed or have arrest powers, but preference for membership would go to retired police and military personnel. The controversial provision was initially approved in a February 2009 emergency decree, and subsequently dropped in April when the decree was converted into law.

From: United States Committee for Refugees and Immigrants, World Refugee Survey 2009 - Europe, 17 June 2009, available at: http://www.unhcr.org/refworld/docid/4a40d2a6c.html (accessed 30 July 2009)

Out of about 67,000 people crossing to Europe by sea, some 35,000 arrived in Italy and 2,800 in Malta, mostly via Libya. About three-quarters of those arriving in Italy applied for asylum and Italy granted around half of them refugee status or protection on other humanitarian grounds.

Italy does not recognize gender-based persecution claims under the particular social group ground of the 1951 Convention relating to the Status of Refugees (1951 Convention). Although its Constitution provided a right of asylum, Italy has not fully implemented it into legislation.

Detention conditions for illegal aliens are overcrowded in Italy and amount to serious human rights violations in Greece.

__________________________

From Human Rights Watch, Treating refugees as refuse, 14 June 2009, available at: http://www.unhcr.org/refworld/docid/4a39e90fc.html (accessed 30 July 2009)

With the visit of Libyan leader Muammar Gaddafi to Rome this week, Italy and Libya are celebrating their recently ratified Friendship Treaty. But this pact, which has already resulted in joint naval patrols that run roughshod over refugee and migrant rights - as Tana de Zulueta commented - is hardly cause for celebration.

About 500 migrants have already been summarily returned to Libya since early May, and boat departures from Libya have been sharply curtailed. Today, the migrant detention centre and asylum reception centres on Italy's outpost island of Lampedusa are empty, a dramatic contrast to the way they looked in January, when 1,850 people were crammed in space designed for 800, with many sleeping on the floor. But asylum seekers don't simply disappear. Many will be denied the opportunity to seek asylum from war and persecution and almost all will be subjected to indefinite detention, poor conditions and perhaps abuse.

From: "The Italian asylum procedure – some problematic aspects." Maria Cristina Romano. (Maria Cristina Romano works as a lawyer in Milan.  She is a member of ASGI (Association of Juridical Studies on Immigration) and is also the ELENA coordinator for Italy.) Ireland: Refugee Documentation Centre, The Researcher, June 2009, June 2009, Volume 4, Issue 2, available at: http://www.unhcr.org/refworld/docid/4a545b34a.html (accessed 30 July 2009)

The Italian asylum system is, since 2008, modeled on the European Asylum system.

Procedure for the recognition of international protection. The actual Italian law provides that the application must be submitted as soon as possible when the migrant arrives at the border or at the main police office (Questura) in the town where he or she is domiciled.

Detention in specific centers is provided under certain circumstances: if the asylum seeker has presented the application only after having been stopped in irregular conditions or if he or she entered irregularly with no documents. In both these cases temporary detention in specific centers is provided, although in the second case it will last only for the time necessary to identify the person. If the asylum seeker applies for asylum only after having been expelled from the country, he or she will be detained in a detention centre for irregular migrants until the end of the procedure. Once the asylum request has been presented, the asylum seeker who is without means, will be sent to a reception centre if a place is available or will be given a small amount of money and will have to find his or her way.

The prefect can fix an area of the territory where the asylum seeker must stay until the decision. After six months from the date of application, the asylum seeker, if his or her request has not already been examined, will be entitled to work.

A lawyer can assist the asylum seeker during the asylum interview, but no legal aid is provided at this stage. The commission provides an interpreter. The asylum seekers receive a copy of the interview report, which is written only in Italian. Negative decisions can be appealed within 30 days at the civil court. The applicant is automatically entitled to stay in the territory until the court decision, except in some specific cases. Legal aid can be given if the case is considered well-founded by the legal aid board. Against a decision of the civil court an appeal must be filed at the appeal court within 10 days. Applications presented by irregular migrants only after having been stopped in the country in irregular conditions or after an expulsion are examined with priority and the appeal against negative decisions must be filed within 15 days. In these cases there is no automatic right to stay in the country pending the appeal but the Court can grant it.

Regarding the access to procedure, the first problem arises from the mixed fluxes of migrants that reach the Italian coasts by sea, as some of the migrants are asylum seekers in need of protection. However there is not much clarity on which kind of information is given to these people, especially when they reach the isle of Lampedusa. There, they are kept in a centre for the time necessary for their identification and are then sent back to their home countries47, unless they apply for international protection. The situation became more worrying in the last few weeks. The Italian authorities, in application of an agreement with Libya, began to send back there migrants rescued in the sea between Libya and Sicily. The people are sent back without even identifying them, regardless of their nationality, without knowing if there are asylum seekers or others in need of protection.

From: Amnesty International, Amnesty International Report 2009 - Italy, 28 May 2009, available at: http://www.unhcr.org/refworld/docid/4a1fade141.html (accessed 30 July 2009)

Roma were subjected to serious attacks throughout the year, and there was little available information on effective investigations into these incidents. Forced evictions against Roma drove them deeper into poverty. Several people were given deportation orders and at least two people were deported to Tunisia where they were at risk of serious human rights violations. Italy still lacked comprehensive legislation for the protection of asylum-seekers. However, a more extensive set of rules, including some improvements in the asylum procedure, entered into force following the implementation of EU legislation. Investigations into allegations of ill-treatment by law enforcement officials were inadequate.

Migrants' and asylum-seekers' rights

Migrants and asylum-seekers without valid documentation, including pregnant women and families with children, were routinely detained upon arrival in detention centers before having the chance to apply for international protection. Migrants and asylum-seekers detained in some centers were not granted the right to appeal in court against the lawfulness or conditions of their detention.

• In Cassabile detention centre, asylum-seekers were detained for up to five weeks before being given the chance to apply for asylum.

There were reports of the deaths of migrants in detention centers due to delays in medical help.

• On 24 May, Hassan Nejl, a Moroccan national, died in the Turin Temporary Stay Centre after being taken ill. According to other detainees, he was not given prompt or adequate medical care. A judicial investigation was launched, but no results were available at the end of the year.

A decree adopted on 3 October suspended the deportation of asylum-seekers appealing against rejection of their asylum claim. The decree also gave local prefects the power to limit the movements of migrants and asylum-seekers to a specified area.

Several measures were adopted by municipal authorities against migrants. On 11 February, a court in Milan cancelled a circular issued by Milan City Council because of its discriminatory nature. The circular restricted kindergarten enrolment of the children of migrants without a residence permit.

The European Commissioner for Human Rights and the UN Working Group on Arbitrary Detention raised concerns after a set of legislative proposals known as the "security package" was adopted on 21 May to tackle irregular migration. One decree which was converted into Law 125/08 on 24 July ruled that if a migrant committed an offence, their irregular status would be added to the list of aggravated circumstances as set out in the Penal Code, which could result in the imposition of a more severe punishment.

From European Council on Refugees and Exiles, Memorandum to the JHA Council Memorandum to the JHA Council of 4/5 June 2009: Guaranteeing refugee protection and safeguarding respect for fundamental rights, May 2009, available at: http://www.unhcr.org/refworld/docid/4a2534ec2.html (accessed 30 July 2009)

Push-backs to Libya

From 7 to 10 May, over 500 migrants, including pregnant women and children, were intercepted by the Italian coast guard and forcibly returned to Libya without assessing their need for protection. According to media reports, the Italian Home Affairs Minister, Roberto Maroni, hailed the deportations as a “turning point” in the fight against irregular migration. States have a legitimate right to control their borders. However, forcibly returning people to countries where they may face serious violations of their human rights and be pushed back into the hands of their persecutors violates international law. The Council of Europe’s Commissioner for Human Rights and the United Nations High Commissioner for Refugees have expressed immediate and grave concern in response to Italy’s actions. United Nations High Commission for Refugees (UNHCR) has called on Italy to readmit any of those individuals returned who are determined to be in need of international protection.

… Furthermore, the obligation of non-refoulement, which prohibits returning refugees to countries where they may face persecution does not arise only when a refugee is within or at the borders of a state, but also when a refugee is under its effective or de facto jurisdiction outside its territory, including in international waters as well as in the territorial waters of another state.

Council of Europe: Commissioner for Human Rights, Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Italy on 13-15 January 2009, 16 April 2009, CommDH(2009)16, available at: http://www.unhcr.org/refworld/docid/49e87da72.html (accessed 30 July 2009)

Law N° 125 of 24 July 2008:

a) Aliens are deported and EU nationals are removed from the territory by court decision if sentenced to more than two years’ imprisonment;

b) The irregular status of aliens who commit a criminal offence is added to the list of aggravating circumstances of the Criminal Code;

c) The letting of accommodation to irregular migrants is subject to a sentence ranging from 6 months to three years’ imprisonment. As soon as the relevant judgment is final, the building is seized, unless it belongs to a person not related to this offence. The revenues originating from the sale of seized property may be used by the state for the reinforcement of activities aimed at the prevention and repression of the offences related to irregular migration;

d) The ‘Temporary Residential and Assistance Centres’ (CPTAs), where there have been detained immigrants subject to expulsion or asylum seekers during examination of their applications, are renamed ‘Identification and Expulsion Centres’;

e) Mayors have the power to adopt, inter alia, urgent measures for coping with ‘threats to public and urban security.'

Even though Italy has ratified all major international human rights treaties, including the UN Convention on the Rights of the Child, and despite the commendable efforts made by Italy in this domain, recent expert reports have highlighted a series of major shortcomings, such as delays in identifying the presence of unaccompanied migrant children in the country, long detention of non-EU unaccompanied migrant children in administrative detention centres, lack of adequate law and policy regarding guardianship44 and serious lack of homogeneity in the application of the law concerning unaccompanied migrant minors.45 These shortcomings compound the vulnerability of these children and make them easy prey to many kinds of exploitation and criminality.




Detention Overview - Lithuania

Introduction 

Over the last two decades, Lithuania has become an important destination for irregular migrants and asylum seekers from the former Soviet republics and Central Asia, receiving considerably higher numbers of asylum seekers compared to the other Baltic countries. Although Lithuania does not generally detain asylum seekers, irregular migrants are often detained for as long as nine months in very poor conditions.

Current Detention System

An immigrant is detained in Lithuania when he or she lacks the proper documents for being present in the country.  Articles 112 and 113 of the Law on the Legal Status of Foreigners specifies that a foreign national may be detained on administrative grounds in order to prevent unauthorized admission into national territory, in case of unauthorized entry or stay, upon suspicion that a non-citizen is using false documents, if he or she has been placed in deportation proceedings, to prevent the spread of dangerous or communicable diseases, or when a person is considered to be a threat to public security.1

Article 114 of the Law on the Legal Status of Foreigners authorizes the police or any law enforcement officer to detain non-nationals for an initial maximum period of 48 hours. There is no legal maximum duration of administrative detention.2

Asylum seekers are exempt from detention under these circumstances according to a 2006 amendment to the Law on the Legal Status of Aliens (Aliens Act).3  This development, while positive, does not apply to all asylum seekers: many of those arriving from safe countries of transit are turned away without having their asylum claims reviewed.The rejection of asylum seekers with potentially valid claims is particularly troubling in light of the fact that Lithuania receives more asylum seekers than any other Baltic State.5 According to the Lithuania government’s Migration Department, 292 foreign nationals were detained for unlawful entry or presence in the country in 2008, while 759 total foreigners were deported that same year.

Only one immigrant detention center currently exists in Lithuania, located in Pabrade. This facility, also known as the Foreigners’ Registration Center, provides mandatory medical screenings to newly arrived asylum seekers; these screenings, however, do not identify persons with special needs and possible victims of torture or ill-treatment.In general, ongoing medical attention for those living in the centers is considered inadequate. On paper, detainees are permitted to receive visits from family members; practically speaking, however, access to detained immigrants by family members is very difficult. Non-governmental organization’s (NGOs) are allowed access to detention facilities with permission of the Minister of Foreign Affairs. Those detained have the right to a hearing before a judge or adjudicative official, though this often takes time — in practice, the average length of detention is six months or longer.

Alternatives to Detention

Refugees and individuals who have been granted subsidiary protection are offered housing at a reception center in Rukla.

Additional Notes

From: United States Department of State, 2008 Country Reports on Human Rights Practices - Lithuania, 25 February 2009, available at: http://www.unhcr.org/refworld/docid/49a8f1762.html (accessed 30 July 2009)

Asylum seekers coming from a safe country of transit were prohibited from entering the country and were returned to the transit country without a review of the substantive merits of their applications. According to the Migration Department, authorities did not have a list of safe third countries, but defined such countries as ones in which the person's life or liberty would not be threatened on account of membership in one of the categories specified in the 1951 UN refugee convention and its 1967 protocol, and from which the individual would not be sent to another country in contravention of his rights under these agreements.

The government can grant "temporary protection" in the event of mass influx of aliens, but an individual alien has no right to apply for this protection. No persons were granted temporary protection during the year. An additional form of protection, "subsidiary protection," may be granted to an individual alien who does not qualify as a refugee but who cannot return to his country of origin because of fear of torture or inhuman treatment, prevailing violence or military conflict, or systematic violation of human rights in that country would endanger his basic rights or fundamental freedoms. Between 1997 and 2007 more than 500 persons were granted subsidiary protection.

From: UN Committee against Torture (CAT), Concluding observations of the Committee against Torture: Lithuania, 19 January 2009, CAT/C/LTU/CO/2, available at: http://www.unhcr.org/refworld/ docid/4986bc0c6.html (accessed 2 August 2010)

Notes:  

1) Lithuania Detention Profile Global Detention Project. June 2010, available at: http://www.globaldetentionproject.org/countries/europe/lithuania/introduction.html (accessed 2 August 2010)

2) Lithuania Detention Profile Global Detention Project. June 2010, available at: http://www.globaldetentionproject.org/countries/europe/lithuania/introduction.html (accessed 2 August 2010)

3) UN Committee Against Torture (CAT), Concluding observations of the Committee against Torture: Lithuania, 19 January 2009, CAT/C/LTU/CO/2, available at: http://www.unhcr.org/refworld/docid/4986bc0c6.html (accessed 2 August 2010)

4) United States Department of State, 2008 Country Reports on Human Rights Practices - Lithuania, 25 February 2009, available at: http://www.unhcr.org/refworld/docid/49a8f1762.html (accessed 2 August 2010)

5)  Focus Migration: County Profile, Lithuania. January 2007. http://www.focus-migration.de/typo3_upload/groups/3/focus_Migration_Publikationen/Laenderprofile/CP_07_Lithuania.pdf (accessed 2 August 2010)

6) UN Committee Against Torture (CAT), Concluding observations of the Committee against Torture: Lithuania

Asylum-seekers

The Committee welcomes the information provided by the delegation that the Law on the Legal Status of Aliens (Aliens Law) has been amended in November 2006 and that asylum seekers are now exempt from detention, even in cases where they enter or stay illegally in the State party. While noting that the State party provides mandatory medical screening to newly arrived asylum-seekers upon arrival to the accommodation facilities at the Foreigners’ Registration Centre (FRC) in Padrade, the Committee is concerned that there is no mechanism in place to identify persons with special needs and possible victims of torture or ill-treatment. The Committee is also concerned that all asylum-seekers, including single women or women with children, and traumatized asylum-seekers, are accommodated in the same building (arts. 2 and 16).

From: Focus Migration: County Profile, Lithuania.  January 2007. 
http://www.focus-migration.de/typo3_upload/groups/3/focus_Migration_Publikationen/
Laenderprofile/CP_07_Lithuania.pdf
(accessed 2 August 2010)

Detention Overview: Malta

Introduction

As the first stop for many asylum seekers traveling by boat from Libya, Malta receives the greatest number of irregular immigrant arrivals relative to its population of any country in Europe. Since joining the European Union in 2004, the country has seen a significant increase in the number of undocumented migrants arriving by boat from Africa.1 The Maltese government has struggled to cope with this influx, and there is concerned that the country’s detention centers are not prepared to house the additional people.2 The Maltese government, responsible for the custody of irregular immigrants, has been unwilling or unable to respond humanely to the needs of these thousands of asylum seekers, many of who are detained and deported without recourse to Maltese courts. Most of the time these individuals spend in Malta is inside one of a number of detention centers run by the Detention Service, a government agency and life inside is generally considered worse than that of criminal jails or prisons.3

Current Detention Practices 

The government’s policy of mandatory detention of asylum seekers has been heavily criticized. Malta generally detains all those caught entering or staying in Malta without permission from the immigration authorities.  Because of Malta’s unique geographic location vast majority of immigrants in Maltese detention are placed in detention from the moment of their arrival for lack of proper documentation. Other classes of immigrants may be detained who, despite having the requisite permission, are declared "prohibited immigrants." These may include persons convicted of certain crimes,4 persons suffering from mental health problems and persons who are unable to maintain themselves.  Once detained, Maltese immigration laws allow for the continuous detention of immigrants who are refused admission into Malta or against whom a removal order has been issued.  

Although detention laws are technically targeted not at asylum seekers but at immigrants caught without proper legal status or refused entry at a port of entry, an asylum application will not grant the applicant any special consideration or trigger automatic release from detention—even if the applicant is a first-time asylum seeker. Generally, immigrants who seek asylum after having been apprehended for unlawful entry or presence remain in custody until either a) their asylum applications are given a final determination; or b) they are removed or repatriated following the rejection of their asylum applications. Those awaiting a determination for more than twelve months are released from detention to await the outcome of their asylum application in the community. Those awaiting removal for more than eighteen months are released from detention to await their removal in the community. At present, the average length of a detention stay in Malta is six months or longer.

For irregular migrants not seeking asylum — a group that constitutes the minority of all detained immigrants in Malta — the provisions for delayed processing also apply. Once detained, their immigration status will be assessed, and if their cases are processed for more than twelve months or if they await removal for more than eighteen months, alternative accommodation will be sought within the community.

Regarding detainee freedom of movement and living space, detainees do not have cells or rooms, as detention centers are usually made up of little more than sleeping space (one or more large dormitories), shared sanitary facilities and a small inside recreation area.  All detention facilities have some kind of yard for outdoor recreation, and in most cases, detainees have daily access to open air.  In one case—a center where people are accommodated in tents—detainees have unlimited access to the yard.  Most other centers allow yard access for a number of hours each day.  In one center where women and children are housed together, access to the yard is only available a couple of times a week for one or two hours. 

Detainee awareness of detention center rules and procedures is minimal.  Upon arrival, detainees are given a sheet entitled “Your Rights and Obligations While in Detention,” but the language is vague and lacks references to any clear rules.  It is also only available in English, French, and Arabic, which are not the languages most commonly spoken by detainees (Somali and Tigrinya).  Part of a research project that involved interviews with immigrant detainees in Malta revealed that, when asked about detention rules, most stated there are no rules in the center apart from those created among detainees themselves.

Despite reports from JRS staff of unreasonable strip searches and forced restraint, no official system of grievances currently exists by which to register such complaints or allege rights violations, nor do clear regulations exist regarding the implementation or administration of discipline in detention centers.  The Board of Detention Visitors—a monitoring body set up by law—does hear complaints from detainees when they visit the detention centers approximately once every two months.  Outside of these visits, however, no established channels are in place to ensure complaints arrive at the Board.  In addition, the mandate of the Board is limited: it exists only to listen to complaints and inform the minister and/or make recommendations to the Commander at the Detention Service.  There is no obligation to take these complaints into serious consideration or implement changes in response to them.

Communication with the outside world is infrequent. Although most centers have a phone for detainee use, arrangements only provide for one free call every two months (or less)—and up to two months may pass before a detainee place his or her first phone call.  Detainees must pay out-of-pocket for any other phone calls; however, facility rules do not permit detainees to receive or earn money while in detention, and any money found on a detainee’s person upon arrival is confiscated until that individual is released from detention.  Detainees may write and receive letters, but they cannot receive visitors or communicate with family and friends by e-mail.  

Once an immigrant is detained, Maltese law grants a right to a hearing before a judge or adjudicative official.  In practice, however, legal remedies are out of reach for almost all detainees.  Despite a theoretical right to free legal assistance from legal aid agencies, few immigrants have access to these services.  Although Maltese regulations require immigrants to first go to court to request such services, Detention Services typically refuse to bring detainee to court to receive legal aid.  Uninformed and unprepared, most immigrants appearing before an adjudicative official are ordered deported.

The Maltese government continued to detain asylum seekers and irregular migrants, including the most vulnerable populations — children, the elderly, the infirm, and pregnant women.(5) Once again, most enacted provisions for the care of such individuals are not a reality within the walls of the detention centers.  For example, detainees are legally entitled to universal medical care; in practice, however, health care is inadequate.  In addition, parents of minor children are held in detention with their children when the family is detained.  Children are not educated in detention, nor are they held in a less restrictive environment.  

Alternatives to Detention

Policy guidelines on immigrant detention in Malta state that vulnerable immigrants should not be detained.  Nevertheless, most are detained initially, at least until their situation is assessed, medical clearance is obtained, and accommodation is found in the community.  Once released from detention, Open Centers may accommodate these individuals. 

 

In addition, detainees may apply to the Immigration Appeals Board to challenge the reasonableness of their detention, either because of an length estimated stay prior to deportation or because the length of detention to date is unreasonable.  If the Board accepts the application — a rare occurrence, since most officials adopt government policy as the standard of reasonableness — the Board may decide to impose a reporting obligation, which requires signing at the police station on a daily or weekly basis.

Detention Overview: Netherlands

Introduction

As of 2007, approximately 20,000 irregular migrants and asylum-seekers are detained in the Netherlands each year and the use and duration of detention and other restrictive administrative measures is increasing.1

Current Detention System

According to government figures, around 4,500 irregular migrants and asylum-seekers were subject to administrative detention in the first half of 2008.2 In the Netherlands, an immigrant is detained when he or she declares his/her intent to seek asylum at a port of entry, or when s/he has improper documents for an extended stay. Government agencies, local law enforcement and private contractors run the detention centers. By law, those being detained have the right to be seen by a judge or some adjudicative official. "Asylum seekers refused entry at the border are provided with legal assistance. Those who do not apply for asylum sometimes must wait for up to two weeks for representation." According to the law, parents and guardians of minor children are held in detention with their children. As far as lengths of stay, there is "no legal limit, in practice the limit is six months."3

Dutch detention practices have been heavily criticized. The government engages in controversial practices such as using boats as detention sites, detaining large numbers of asylum seekers, and placing unaccompanied minors in juvenile justice centers.4 There has been significant public outcry over harsh conditions at detention sites, which was sparked in part by a 2005 fire at the Schiphol Airport detention facility that resulted in the deaths of several detainees, has gradually led to some reforms, in particular with respect to safety regulations at detention facilities.5

According to 2009 reports, some asylum seekers were detained for excessive periods- in some cases more than a year. Alternatives to detention were used infrequently, even for people belonging to vulnerable groups, such as unaccompanied minors and victims of trafficking or torture.6

In January the government announced reforms to the policy governing the detention of asylum-seeking families with children, including the introduction of a maximum detention period for families of two weeks prior to expulsion, and the improvement of detention conditions. However, the government indicated it would continue to detain unaccompanied minors in juvenile justice institutions.7

The Dutch government proposed amendments to the Aliens Act. If implemented, many asylum claims would be processed through an expedited process within eight days, including complex cases that require more consideration. The UN Human Rights Committee expressed concern that existing accelerated procedures, allowing determination of asylum applications within 48 working hours, and the proposed eight-day procedure, might not allow asylum-seekers to substantiate their claims adequately, putting them at risk of forcible return.8

According to government figures, thousands of irregular migrants and asylum-seekers were taken into immigration detention centers during the year and held on a remand regime. Those detained included vulnerable individuals, such as trafficking and torture survivors, with little to no consideration given to alternatives to detention. Even unaccompanied minors continued to be detained and the government asserted they had no legitimate claim to remain or reside in the Netherlands. 9

Additional Links

1. Freedom House, Freedom in the World 2010 - Netherlands, 24 June 2010, available at: http://www.unhcr.org/refworld/docid/4c23123b28.html [accessed 2 August 2010] 

2. United States Committee for Refugees and Immigrants, World Refugee Survey 2009 - Europe, 17 June 2009, available at: http://www.unhcr.org /refworld/docid/
4a40d2a6c.html
[accessed 2 August 2010]

3. Amnesty International, Amnesty International Report 2010 - Netherlands, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a80f32.html [accessed 2 August 2010] United States Department of State, 2008 Country Reports on Human Rights Practices - Netherlands, 25 February 2009, available at: http://www.unhcr.org
/refworld/docid/49a8f169aa.html
[accessed 2 August 2010]

4. Council of Europe: Secretariat of the Framework Convention for the Protection of National Minorities, Report submitted by the Netherlands pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities, 16 July 2008, ACFC/SR(2008)001, available at: http://www.unhcr.org
/refworld/docid/48b3fdfc2.html
[accessed 2 August 2010]

5. Amnesty International, The Netherlands: The Detention of Irregular Migrants and Asylum-Seekers, June 2008, EUR 35/02/2008, available at: http://www.unhcr.org/refworld/docid/4875bc882.html [accessed 2 August 2010]

NOTES:

1) The Netherlands: The Detention of Irregular Migrants and Asylum Seekers. Amnesty International. AI Index: EUR 35/02/2008, 17 June 2008, available at http://www.amnesty.nl/documenten/wereldnieuws/rapport_vreemdelingendetentie.pdf [accessed 2 August 2010]

2) Netherlands: Amnesty International 2009 Report. Amnesty International, available at http://report2009.amnesty.org/en/regions/europe-central-asia/netherlands [accessed 2 August 2010]

3) Ibid.

4) Netherlands Detention Profile. Global Detention Project. December 2009, available at: http://www.globaldetentionproject.org/countries/europe/netherlands/introduction.html [accessed 2 August 2010]

5) Ibid.

6) Amnesty International, Amnesty International Report 2009 - Netherlands available at http://report2009.amnesty.org/en/regions/europe-central-asia/netherlands [accessed 2 August 2010]

7) Ibid.

8) Amnesty International, Amnesty International Report 2010 - Netherlands, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a80f32.html [accessed 2 August 2010]

9) Ibid.


Detention Overview: Portugal

Introduction

Portugal has seen steady growth in its immigrant population during the last decade. In recent years it has established new immigration and asylum laws, in particular addressing the detention of undocumented immigrants.[1]

Current Detention System

An immigrant is detained in Portugal when a declaration of intent to seek asylum is made at a point of entry, or when an individual is found without the proper documentation for a stay in the country.

Portugal’s detention policy is laid out in Act 23/2007 of 2007, which provides “the legal framework for entry, permanence, exit, and removal of foreigners into and out of national territory.” Under Article 146, a person illegally entering or staying in Portugal who is detained by “a police authority” must be brought before a judge within 48 hours. If a removal order is made, the person is to be detained “at a temporary lodging centre or a matching facility,” where he/she can be held for a maximum of 60 days.[2]

Portugal has one dedicated immigration detention centre, the Unidade Habitational de Sao Antonio (UHSA) in Porto, which is managed by the Immigration and Borders Service (SEF) and falls under the authority of the Ministry of Internal Affairs. Opened in 2006, the center had as of 2007 a capacity of 30 adults and six children.[3] In addition, Portugal uses transit zone sites at three Portuguese airports, known as Temporary Installation Centers (CITs), for the short-term detention of asylum seekers and undocumented migrants.[4] Individuals are held in such centers for a maximum of 24-48 hours. The CITs at the airport in Lisbon has the capacity for 56 persons, while Faro and Porto each have 24 places.

Portugal grants several basic rights to detainees. In addition to a legal right to be informed about the cause for their detention, individuals are entitled to a state-provided interpreter at hearings preceding and during their detention.[5] Detainees have access to medical care through the National Heath Service, and have both telephone privileges and the right to receive visits from whomever they wish.

Alternatives to Detention

Portugal has two non-secure centers for housing foreign nationals: the Bobadela Reception Center for asylum seekers and the Pedro Arupe Reception Center for “vulnerable undocumented foreign nationals.”[6] JRS-Portugal manages the Pedro Arupe facility, which can accommodate up to 25 irregular migrants or asylum seekers.[7]

Non-profit organizations provide many of the essential services for detainees at UHSA and the transit zones. [8] JRS-Portugal, through an agreement with the Portuguese government, has a permanent presence at UHSA, providing legal counsel and psychological and social services to detainees. Additionally, the Swiss organization Médecins du Monde provides detainees with access to medical care and psychological consultations.

Additional Links

  1. Freedom House, Freedom in the World 2011 - Portugal, 16 May 2011, available at: http://www.unhcr.org/refworld/docid/4dd21a41c.html [accessed 7 October 2011]
  2. Amnesty International, Amnesty International Annual Report 2011 - Portugal, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce154628.html [accessed 7 October 2011]
  3. United States Department of State, 2010 Country Reports on Human Rights Practices - Portugal, 8 April 2011, available at: http://www.unhcr.org/refworld/docid/4da56d97c.html [accessed 7 October 2011]
  4. UN High Commissioner for Refugees, Submission by the United Nations High Commissioner for Refugees for the Office of the High Commissioner for Human Rights' Compilation Report (Excerpts of Treaty Body Concluding Observations and Special Procedure Reports) - Universal Periodic Review: Portugal, April 2009, available at: http://www.unhcr.org/refworld/docid/49fea6420.html [accessed 2 August 2010]
  5. Council of Europe: Committee for the Prevention of Torture, Report to the Portuguese Government on the visit to Portugal carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 25 January 2008, 19 March 2009, CPT/Inf (2009) 13, available at: http://www.unhcr.org/refworld/docid/49c24f1f78.html [accessed 2 August 2010]
  6. Council of Europe: Committee for the Prevention of Torture, Response of the Portuguese Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Portugal from 14 to 25 January 2008, 19 March 2009, CPT/Inf (2009) 14, available at: http://www.unhcr.org/refworld/docid/49c24fc12.html [accessed 2 August 2010]
  7. Immigration and Refugee Board of Canada, European Union (EU) Member States: Application of the Protocol on Asylum for Nationals of Member States, 12 October 2007, ZZZ102549.E, available at: http://www.unhcr.org/refworld/docid/
    474e89551e.html
    [accessed 2 August 2010]
European Union: European Agency for Fundamental Rights, Separated, asylum-seeking children in European Union Member States: Summary Report, 30 April 2010, 978-92-9192-591-9, available at: http://www.unhcr.org/refworld/docid/4bde87d92.html


[1] Global Detention Project, Portugal Detention Profile (August 2009), available at: http://www.globaldetentionproject.org/countries/europe/portugal/introduction.html#c2341 [accessed 11 October 2011]

[2] Act 23/2007 of 4 July 2007, Legal framework of entry, permanence, exit and removal of foreigners into and out of national territory [Portugal], No. 23/2007, 4 July 2007, available at: http://www.unhcr.org/refworld/docid/48e4910b2.html[accessed 2 August 2010]

[3] Global Detention Project, Portugal Detention Profile.

[4] Ibid.

[5] Jesuit Refugee Service (Europe), Detention in Europe: Portugal. http://detention-in-europe.org/index.php?option=com_content&view=article&id=279&Itemid=212 [accessed 7 October 2011]

[6] Global Detention Project, Portugal Detention Profile.

[7] Jesuit Refugee Service (Europe), Detention in Europe: Portugal.

[8] Global Detention Project, Portugal Detention Profile.


Detention Overview – Slovenia

General Detention Practices

Slovenian law permits the detention of immigrants who attempt to enter the country without proper documentation or who are found residing in the country with expired or without immigration papers.  After their arrest, immigrants may be kept in detention until a hearing and resolution of their cases before an immigration judge or other adjudicative official.  These hearings are available to detainees as a matter of right, although the adjudicative process can take anywhere from several weeks to several months—and in some cases, more than six months.  Once in court, an immigrant may obtain a legal representative for little or no expense, although in certain instances, immigrants must hire private at regular fees. 

Unfortunately for those seeking asylum, Slovenia has one of the lowest recognition rates in Europe, with only one approval in 2006 and two in 2007. Legal reform in 2006 included the addition of provisions that expanded accelerated adjudications for asylum seekers. This change has diminished the effectiveness of the appeals process for asylum seekers, who may find themselves returned to another country where their life or freedom may be threatened. In addition, the law permits broad use of detention for asylum seekers, including asylum seekers with special needs such as families with children.1

General responsibility for the detention of immigrants lies with the Slovene Ministry of Interior.  Direct supervision, however, is the charge of the Slovene police.  Presently, a single immigrant detention center near Postojna accommodates all immigrant detainees, and little distinction in detention standards exists between criminal prisons or jails and immigrant.  In fact, at the Postojna detention center, criminals are occasionally jailed alongside foreigners.

Within the center at Postojna, women and men are kept in separate areas, and all detainees must stay in their room or cell unless leaving for meals, recreation or other sanctioned activities. The rules of the detention centers are told to detainees upon arrival by facility guards.  Sometimes immigrant detainees are restrained with force if necessary, although there are no reports of food deprivation, unreasonable searches, or strip searches.  Those in detention may call their families when they arrive, and communicate with them thereafter on a regular basis.  They may also write and receive letters, and receive visits from their families.  It costs money to use the phone, but according to JRS survey respondents, these calls are affordable.  Medical care is available to all at detention centers for little or no cost.  Parents and guardians of minor children are held in detention with their children.  Depending on the length of their detention, children will receive education while detained.  Children, if detained, are held in less restrictive environments than adults.  Special consideration is given to detained immigrants seeking asylum, victims of torture, pregnant women, minors and the elderly.  Non-governmental groups are allowed in the detention facilities, and they offer program/services.  In practice, the average length of detention is several weeks to several months.  On rare occasions, detention will last six months or longer. 

Alternatives to Detention

As an alternative to detention, some detainees receive special permission to live outside the detention center.


JRS Slovenia:

See DEVAS
Locations of Detention in Slovenia (2005, PDF)

WEBLINKS

Jesuit Refugee Service (JRS) - Slovenia: JRS-Slovenia is part of the Jesuit Refugee Service (JRS), an international Catholic organization, which was set up by the Society of Jesus in 1980 and is now working more than 57 countries worldwide. The mission of JRS is to accompany, to serve and defend the rights of refugees and other forcibly displaced people. JRS-Slovenia works with: asylum seekers (asylum house in Ljubljana), where a social worker helps the women, men and children in different ways (social help, teaching the Slovenian language, helping children with homework etc); refugees in Slovenia who received a legal status (social help in integrating them into society); irregular migrants who are detained in the detention center in Postojna (social help to people in this difficult situation).


REPORTING

President of Slovenia visits detention center in Postojna
On Thursday, 20 July 2006, Dr. Janez Drnovšek, the President of Slovenia, visited the only Slovenian detention centre near Postojna. He visited the centre having received letters from the public complaining about the poor and deteriorating conditions that the detainees face. Dr. Drnovšek met the administrative persons at the detention centre, along with the representatives of the NGO “Network for a permanent visit by foreigners in the centre”. Both the Minister for Health and the Minister for Interior Affairs announced their participation in the visit, but subsequently cancelled. After the visit the President told to the media that “the standards in the detention centre are not bad”. He said that it was clear that the detainees are in a difficult situation, because they are faced with the possibility of being returned to their county, and it was therefore important to understand their position. He also highlighted the importance of “small gestures and communication with detainees.” The administrative persons in this centre “are aware of this and they are working in this direction”. SOURCE: JRS-Europe


Human Rights Press Point

There is one Detention Center in Slovenia; near Postojna (Veliki Otok 44 Z, 6230 Postojna, ++386 5 701 34 40) and under the supervision of the Slovene Ministry of Interior and under the direct administration of the Slovene police. In the center there are 58 employees, 41 of them are uniformed and 17 non-uniformed.

3. Procedure and legal basis

The Republic of Slovenia has concluded agreements on readmission with all neighboring states (Italy, Austria, Hungary and Croatia). Besides Italy and Austria, other EU Member States with which Slovenia has concluded readmission agreements are Denmark, the Benelux states, France and Greece and, as regards non-EU Member States, the Swiss Confederation, Slovakia, Poland, Estonia, Lithuania and the Czech Republic. The readmission agreements signed with Canada, Romania and Germany deal only with nationals of the contracting countries. Agreements with Bulgaria, Latvia and Macedonia are in preparation.

The Republic of Slovenia ratified both the 1951 Geneva Convention and its Protocol of 1967 without any reservations. Refugee status is granted on the basis of the criteria of the Geneva Convention and the provisions of Article 34 of the Law on Foreigners, which stipulates that refugee status in the Republic of Slovenia may be ratified for a foreigner who has abandoned a country of which he is a citizen, or in which he had permanent residence as a person without citizenship, in order to avoid persecution because of his political opinion, his cultural or scientific activities or because of his national, racial or religious affiliations. 

Designed on the EU model, Slovenian legislation is primarily restrictive. Primary legislation is based on Aliens Act (1999, amended in 2006) and International Protection Act which replaced the Law on Asylum (1999, amended in 2006). International Protection Act which came into force on 4th of January 2008 caused strong UNHCR's concern which has submitted during the drafting and legislative review process many detailed comments and suggestions to improve the draft law, but most of them were not accepted. New law, which transposing European Union asylum directives is actually reducing legal standards below international levels and restricting the prospects of asylum seekers to find protection in Slovenia. UNHCR has previously warned that the EU directives had already set minimum norms - some of them below international norms - and the UN refugee agency feared this could thus lead EU member states to subsequently lower their own national legal standards. 

Slovenia has some of the lowest refugee recognition rates in Europe. Only one asylum seeker was recognized as a refugee in 2006, and two in 2007. Among the most worrying provisions of the new law is the increased substitution of accelerated procedures for full-scale asylum procedures. UNHCR believes accelerated procedures should only be applied in exceptional, specifically defined cases. 

At some critical stages in the new asylum process, appeals do not have a suspensive effect. This means that even before their case has been properly evaluated, asylum seekers could find themselves returned to another country where their life or freedom may be threatened. In addition, the law foresees the widespread use of detention for asylum seekers, with no exemption for persons with special needs such as families with children.

From: REPORT on the Implementation of the Border Monitoring Mechanism in the Republic of Slovenia, Written by: Vita Habjan, Legal Information Centre for NGOs – LIC Mag. Neža Kogovšek, Peace Institute, Ljubljana, January 2007

Generally, police stations have no facilities for accommodating migrants and asylum seekers. When migrants are captured they are taken to the nearest border police station when they can be kept over night, but for a maximum of 48 hours before they are taken either to the Asylum Home or the Aliens Centre or returned to their country of origin or safe third country. In some cases border police has separate units at or close to the borders while in other cases border police form only one part of the police squad. While there are no accommodation premises, the border police stations usually have one or two rooms at their disposal where migrants can rest and sleep before they are interviewed.

The Aliens Centre is located in Postojna (southern part of Slovenia) and is under the police’s competence. Its capacity is up to 120 aliens. Detention measures used for illegal aliens differ by the degree of security applied and the restrictions placed on the freedom of movement. Aliens can be placed: 1) in the Aliens Centre or in a social-care facility; 2) in the rigorous police supervision division within the Aliens Centre; 3) at a specific address in case of issued order delaying deportation; 4) outside the Aliens Centre (a lenient measure). The Aliens Centre only has a closed unit, which means that aliens are detained 24 hours per day, but can be allowed to leave the institution in some cases (to visit a legal advisor, a doctor, etc.). Aliens placed in a separate unit to be under rigorous police supervision cannot leave the Aliens Centre.

It is required that aliens be placed in various units, such as special units organized for unaccompanied minors, single women and families. However, since the police in the Aliens Centre lack personnel, aliens are often accommodated together while some units remain vacant. Aliens are locked in their rooms and can move freely within the courtyard only a few hours per day.

Aliens who have declared their intention to lodge asylum application (according to the UNHCR and NGOs standpoint these persons are asylum seekers and no differentiation should be made only based on the fact to which state body an alien lodges his asylum application – for more information on this question see above p. 5) are placed together with other aliens due to a lack of personnel. The regime does not differ from the regime under which the rest of the aliens are placed. In the Aliens Centre they wait until the Asylum Section officials arrive to collect asylum applications. These asylum seekers are never moved to the Asylum Home. The official reason for this is a fact that they had not applied for asylum immediately after entering the country which is why they were treated by the police as illegal migrants. As such they were issued a decision on small offence for crossing the border illegally with a punishment of deportation from the country, and if they could not be deported immediately, a decision on their accommodation at the Aliens Centre was issued to them on the basis of Article 56 of the Aliens Act. 

However, the border monitoring outcome shows that some migrants have tried to apply for asylum immediately after entering the country but the police at the border refused to collect their asylum applications after consulting with the Ministry of the Interior which why they were treated as aliens . The reason why their asylum applications were not collected is a suspicion of the Ministry of the Interior officials that according the to reasons stated by the migrants they are not entitled to international protection in accordance with the Geneva Convention; their lodging of asylum application is therefore seen solely as an attempt to postpone the deportation, hence abuse of the asylum procedure. 

However, although abuse of the asylum procedure is one of the grounds for limitation of movement in accordance with Article 27 of the Asylum Act, these migrants who are already in the Aliens Centre are usually not issued any decision on the limitation of movement on the basis of the Asylum Act, but remain detained on the basis of the Aliens Act. Such practice shows that although the Constitutional Court withdrew the implementation of the police pre-procedure introduced with the revised Asylum Act of 2006, the pre-procedure is in some cases being conducted.

The Aliens Centre is a prison-like police facility with a strict regime equal to detention. Only some NGOs are allowed to access the Centre. Access is allowed to only those NGOs that provide assistance to the police when dealing with aliens or when conducting procedures (i.e. NGOs that provide guardians of unaccompanied minors, NGOs that organize activities for children, etc.).

However, LIC has also been provided with access to the Aliens Centre after several negotiations and years of providing legal assistance to aliens. Namely, LIC offers legal assistance to aliens in areas of regulating their status, gathering documents to return to their country, preparing appeals against detention orders, preparing motions for issuing a more lenient measure, etc. The current arrangement with the Aliens Centre is that LIC only has access to those aliens (i.e. people who are not asylum seekers) who demand to see LIC representatives or when police inspectors consider that such assistance would be helpful. Before every visit LIC is obliged to inform the police of the visit and announce which aliens LIC is going to see. 

LIC has been negotiating to be granted access to every alien without previous notice; however such agreement has not been reached yet. The observance of border monitoring has been that the police do not want any interference with police procedures, especially when deportation procedures are in progress. The police are also under the impression that NGOs, especially those that provide legal assistance, are trying to influence aliens to lodge asylum applications in order to avoid deportation. Therefore, LIC believes it is necessary to restore the police’s comprehension of NGOs’ presence at police procedures and NGOs’ involvement as only to assure due process of law and the respect of rights. Any involvement or interruption of police proceedings should be based on the police’s dereliction of any legal provisions.

On the other hand, LIC has access to all asylum seekers detained in the Aliens Centre, due to the fact of being an implementing partner of UNHCR (by law UNHCR is entitled to unimpeded access to all asylum seekers). Twice per week LIC receives from the Asylum Section data on new arrivals of asylum seekers, both those who have already lodged the asylum application and those who only declared the intention to lodge the asylum application. LIC visits the Aliens Centre twice per week in order to monitor the situation, especially whether new asylum seekers have been placed in the Centre. The particular focus of monitoring is given to the grounds on which detention orders have been issued and to the further proceedings concerning the new arrivals. 

To receive the necessary data for monitoring of the border procedure, LIC conducts interviews with all asylum seekers and persons who declared intent to lodge the asylum application, with an emphasis on the police procedure at the border. At every LIC visit the police ensure privacy between a LIC representative and an alien/asylum seeker during the conversation. Still, it is necessary to note that such practice is not always respected by every police officer or other staff member at the Aliens Centre (social workers, a nurse, etc.). There have been cases observed when an alien called LIC office to discuss his legal matter, and a social worker, who enabled him to make a phone call, refused to leave the room during the conversation.

Access of legal representatives to aliens and asylum seekers is in principle not limited (although in practice such cases have been noted). Also, access of UNHCR is unlimited. Other NGOs and visitors may visit aliens and asylum seekers only during official hours.

Aliens and asylum seekers do not have access to any information provided in writing (brochures) or being displayed on the walls of the Aliens Centre. LIC has been negotiating with the management of the Aliens Centre that the provision of legal information is necessary in order to enable persons to exercise their rights effectively, but the management believes such information may only lead aliens to apply for asylum in order to leave the Aliens Centre and to leave the state or avoid forced deportation. The negotiations have been successful, since the management allowed LIC to bring the information materials to inspectors who will hand out brochures to every asylum seeker who will lodge an asylum application in the Aliens Centre. By this practice asylum seekers will be treated equally with asylum seekers in the Asylum Home with regard to access to information on asylum procedure. Also, with the support of UNHCR, the police agreed to allow putting up pamphlet dispensers at border police stations as well as in the Aliens Centre, informing aliens about their right to seek asylum. The dispensers have already been made and handed out to the police.

Asylum seekers who declare their intention to lodge an asylum application upon entry in the state or declare their intention to apply for asylum at a police station or other state or local authorities within the territory of Slovenia, are in principle immediately referred or transferred to the Asylum Home, in accordance with Article 25 of the Asylum Act. Each person who arrives or is brought to the Asylum Home where he or she later formally lodges the asylum application is accommodated in the Pre-reception Area of the Asylum Home which is a separate facility under Asylum Section’s competence. There the person waits no longer than 12 hours before lodging the application and until then they are not formally considered asylum seekers. 

Standards of living in the Pre-reception Area are lower than in the accommodation part of the Asylum Home: the Pre-reception Area’s capacity is up to 20 persons who share rooms, bathrooms, receive only a hygienic package with a soap, shampoo and a towel, clean bed linen and one package of dry non-cooked food (includes a small carton of milk, a toast bread and a tuna can) per every 24 hours. These persons cannot move freely because the Pre-reception Area is locked and regularly checked by the guards. Access to NGOs and refugee counselors is almost non-existent since they have not been medically checked yet and since these rights (i.e. a right to have access to NGOs, UNHCR, etc.) only apply to asylum seekers.

The Slovene authorities do not regard such persons as asylum seekers until their asylum application is formally lodged before the competent authority (i.e. the Asylum Section). Before that, the person is only regarded as someone who merely declared the intent to lodge an asylum application and therefore does not qualify for receiving any asylum seekers’ rights and benefits (i.e. reception conditions). In UNHCR’s and NGOs’ opinion such standpoint is also included in article 7 of the Asylum Act (see above, chapter “Geneva Convention & National Asylum Legislation). For years, UNHCR and NGOs have been trying to change the Government’s position, arguing that it is not in accordance with the Geneva Convention and the UNHCR view; however, these attempts have been rejected.

The only NGO with access to the Pre-reception Area is LIC which provides first legal information on asylum procedure and rights and duties of asylum seekers in Slovenia to all persons accommodated in the Pre-reception Area. Information is provided orally and in writing, by handing out brochures in thirteen different most frequent languages that asylum seekers speak or understand. The brochure has been prepared jointly by LIC and UNHCR and encompasses most basic legal information. Personal interviews are conducted by LIC staff in order to gain information from asylum seekers on their arrival to the Slovene territory, the police procedures and treatment they received at the border crossings as well as on possible problems encountered in access to asylum procedure.

Although the Asylum Act requires Asylum Home’s staff to provide asylum seekers with necessary information on asylum procedure and rights and duties of asylum seekers in Slovenia, to ensure access to UNHCR, NGOs and to legal representation, the staff only provides the asylum seekers with a list of legal representatives (refugee counselors), which is incomplete (i.e. phone numbers of some counselors are missing and the majority if the counselors from the list is not taking asylum cases anymore), while no information on UNHCR and NGOs is given in writing.

A police officer may detain a person (for a necessary period of time but not longer than 48 hours), who has intended or already crossed the borderline and a reasonable suspicion is established that the person crossed the state border illegally. A detainee has to be notified of the grounds for detention immediately, however after six hours he or she has to be issued a written decision. A detainee has a right to appeal to the district court which has to decide upon the appeal in 48 hours. (Article 32)

The Aliens Act defines other competencies of the border police as well as conditions defining when the entry or residence of an alien is illegal. Pursuant Article 10, upon entry and leaving the state an alien shall undergo border control. Border control when entering the state encompasses personal control; control of transportation; control of things; or control of existence of grounds for rejection of entry in the state. The Aliens Act defines illegal entry in the state as a situation when entry was not allowed; when border control is avoided; or when upon entry forged, of other person or in other way modified documents are used or when false data are used in order to enter the state (Article 11). Pursuant to Article 47, when an alien resides illegally in Slovenia, he should leave the state immediately or in a specified period. An alien resides illegally in Slovenia when he entered the state illegally; his visa has been invalidated or has expired; resides in Slovenia on basis of unlawful reason; or does not have a residence permit or has already expired. An alien who does not leave the territory of Slovenia in accordance with Article 47 (immediately or in a specified period), shall be deported from the state, but only when a deportation order has an executable effect. An alien shall be brought to the borderline and referred across the border in order to extradite him to foreign bodies. The same procedure is conducted when an alien is being extradited on the basis of a readmission agreement (Article 50). If an alien does not leave the state in a specified period and for any reasons cannot be deported immediately, an order of placement in the Aliens Centre or outside the Centre will be issued by the police. In such case the placement may stay in effect no longer than six months. Such measure is used also when an identity of an alien has not been established (Article 56).

In practice, when an alien enters (legally or illegally) the Slovene territory or when after illegal entry he or she goes directly to the nearest police station and declares an intention to apply for asylum at border points or at the police station, he or she is brought directly to the Asylum Home where asylum seekers are accommodated. Before that, the police or state or local authorities merely fill out the registration form, take his documents and send them to the Asylum Section (group 1). If an alien is apprehended by the police on the Slovene territory after illegally entering the territory and does not immediately apply for asylum or is apprehended while leaving the Slovene territory in order to continue his journey towards other EU countries (group 2), he or she is brought directly to the Aliens Centre where illegal migrants are accommodated before returning them to their countries of origin or countries of a formal habitual residence. The difference between both groups of persons is made due to the lack of immediate lodging of asylum applications: the first group conforms with the Article 8 of the Asylum Act (obligation to lodge, without delay, asylum application with the competent authorities) while members of the second group are under a suspicion of misleading or abusive asylum procedure because the obligation to lodge asylum application without delay has obviously been disregarded since all circumstances of the apprehension show persons’ intention to proceed with their journey and therefore their lodging of application is only an act with the purpose of postponing forced deportation. Such behavior is, according to the Slovene administrative-judicial practice, regarded as abusive towards the asylum system and shows the absence of the need for international protection.

The Aliens Act defines an unaccompanied minor as a minor who enters the State illegally, unaccompanied by parents or other legally responsible person, who is apprehended by the police, but cannot be returned to a country which he left in order to enter Slovenia, or to representatives of his country of origin. Unaccompanied minors who do not apply for asylum are temporarily accommodated in the Aliens Centre in a ward for minors. A centre for social work is notified about their arrival in order to assign a temporary representative. Minors cannot return to their country of origin or to a third country willing to accept them until a proper reception is guaranteed. However, under no circumstances a minor may be returned contrary to the provisions of the European Convention on Human Rights and Fundamental Freedoms and its Protocols, Convention against Torture, other Cruel, Inhumane or Degrading Treatment or Punishment, and Convention on the Rights of the Child. A minor shall be accommodated in the Aliens Centre together with his parents or a statutory representative, unless otherwise is in his best interest. For minors under 16 years of age, stricter police surveillance shall be ordered only exceptionally, and only when they are together with their parents (or one of them).

The question which groups of people are considered vulnerable is answered by the Asylum Act. Pursuant the provision of Article 15a, specific care and attention is ensured to persons with special needs and vulnerabilities, especially children, unaccompanied children, the elderly, pregnant women, single parents with children, and persons who have survived rape, torture or other forms of psychological, physical or sexual violence. Special needs and vulnerability shall be established on the basis of an individual assessment of the situation of the asylum seeker, refugee or person with subsidiary protection. The accommodation of vulnerable asylum seekers, refugees or persons with subsidiary protection shall take into consideration their specific situation with regard to material conditions of reception, medical and psychological counseling and care. In addition to that, the Asylum Act defines additional favorable provisions for the following groups: female asylum seekers, unaccompanied minors who applied for asylum, legally incompetent persons and others (for more information see the following paragraphs).

In practice, when vulnerable groups enter the State and are apprehended by the police, minors do not undergo a personal control and women are controlled by female employees. After being taken to the Aliens Centre, single women and unaccompanied minors are accommodated separately from other population in the Centre. Families are also accommodated separately.

From: Human Rights Ombudsman, 12th Annual Report, Republic of Slovenia, July 2007. http://www.varuh-rs.si/fileadmin/user_upload/pdf/lp/Varuh_LP_2006_ANG.pdf 

2.3.3 Aliens illegally residing in Slovenia and asylum seekers

1. 6. The Aliens’ Centre branch II in Prosenjakovci was shut down in 2006. Thus only the

Aliens’ Centre in Veliki otok pri Postojni is available to aliens in Slovenia. Renovation work there has concluded and the capacity of the Centre (220 people) is evidently sufficient for now, for prior to our visit in April 2006, the Centre was occupied on average by 40 or 50 aliens and 83 at the most, and slightly over 100 aliens in 2005.

We did not hear of any allegations of ill-treatment by the staff in discussions with aliens upon our visit, a fact which should be commended. There were only several complaints that individual policeman in discussions with aliens had used words which they deemed demeaning and insulting. Thus all the personnel of the Centre should be reminded on a regular basis of their obligation to treat aliens appropriately (also on the verbal level) and that each such irregularity would be suitably and decisively sanctioned.

Conditions in the renovated Centre are quite good. The Centre enables aliens a high level of living in spacious, ventilated and bright bedrooms. The rooms are kept unlockedatall time and the aliens have permanent access to the common areas which enables mutual contact and socializing. Thus they can freely move about and gather within individual wards but are locked in within these wards. A deficiency we observed was that there were no organized activities. Aliens are locked in wards 23 hours a day. Although they can freely move within a ward, which also includes the possibility of socializing and establishing mutual contact, they cannot ward off idleness and boredom without some types of organized activities. Thus it is not surprising that tension, outbursts, violence and general dissatisfaction among the locked-in aliens arise. 

The Ombudsman had already in the past recommended that the Centre ensure aliens at least two hours in the fresh air daily. During our visit, the aforementioned was limited to an hour or even less. Even minors did not have much more opportunity to take in fresh air. Thus we can only encourage the management to exploit the interior and especially exterior playgrounds for the aliens as soon as possible and to the greatest extent. Sports and other recreational activities should be organised. By assuring more activities, especially outside in the fresh air, the Centre could rank as one of the most contemporary establishments, in line with other (and also richer) countries of the European Union.

The Act Amending the Asylum Act (ZAzil-D) highlighted the year 2006 in the area of asylum and was met with considerable response by the professional and interested publics. In the Annual Report for 2005 we provided several highlights associated with the Ombudsman’s intervention that the amendment and supplementation of the Asylum Act must ensure a fundamental guarantee process that the entire procedure connected with the request for asylum is in accordance with the international obligations of Slovenia. Only some of the recommendations of the Ombudsman were observed in the adoption of the new Act Amending the Asylum Act.

Accommodation and general living conditions of asylum seekers placed in the Asylum Home were favorable upon our visit in May 2006. We only observed overcrowding on particular wards (especially those for families and single men), thus asylum seekers were also temporarily accommodated in group and social areas.

Only in extraordinary circumstances can the movement of asylum seekers be restricted. The restriction of movement is implemented in the closed ward (Restricted Movement Ward) of the Asylum Home and also in other suitable buildings of the Ministry of the Interior (including the Aliens’ Centre). Residence in the closed ward must be limited to the shortest required period of time whereby persons residing there must be ensured equal living conditions comparable to other asylum seekers to the greatest extent possible. This also includes at least two-hours in the fresh air each day and various activities including contact with the outside world.

Detention Overview: Spain

In Spain, an individual is detained for immigration violations if he or she has improper documentation for an extended stay. According to Spanish Ministry of the Interior reports, 3,632 irregular migrants arrived on Spanish coasts in 2010.[1] This 50 percent decrease from the previous year, and the lowest number in a decade, was attributed to the policy of intercepting migrants and asylum-seekers at sea, as well as readmission agreements signed with other countries.[2]

Spain has one of the lowest asylum recognition rates in the European Union, according to Amnesty International.[3] There were reports of racially-motivated identity checks, and monthly quotes of arrests of irregular migrants, although the Ministry of the Interior denied such policies.[4]

There have also been negative reports about the treatment of unaccompanied migrant and refugee children, including a report issued by the UN Committee on the Rights of the Child in October 2010 calling for the Spanish government to extend the protections of the 2009 Asylum Law to all minors, in accordance with international standards.[5]

Spain operates three emergency centers on the Canary Islands with a capacity of approximately 276 children. Humans Rights Watch asserted that systemic factors, including insufficient monitoring and complaint mechanisms, put children at “an increased risks of violence and limited their opportunities for integration into local communities.[6]

Current Detention System

Under the October 2010 amendments to the Law on Foreigners, the maximum period of detention for irregular migrants was increased from 40 to 60 days.[7] However, the amendments also grant NGOs access to migration detention centers.

Immigrants under state supervision are allowed to leave the place of the facilities from time to time, or must only report to the supervision.

Additional Information

From United States Department of State, 2010 Country Reports on Human Rights Practices - Spain, 8 April 2011, available at: http://www.unhcr.org/refworld/docid/4da56d88c.html [accessed 13 October 2011]

Protection of Refugees

…There were no reports of restrictions on refugees' access to employment, health care, housing, education, law enforcement, or judicial redress. The country does accept refugees for resettlement from third countries and provides protections with the assistance of NGOs such as the Spanish Commission for the Assistance to Refugees.

On January 29, the Council of Ministers approved a 2.9 million euros ($3.9 million) program for 2010-2012 for the resettlement of 75 refugees in Spain. The selection of the refugees for this program will be handled by the General Directorate of Interior Policy and the General Directorate for the Integration of Immigrants.

During the year the country received 3,632 undocumented migrants by boat. This reflected a steady decline in undocumented migrants arriving in the country, from 13,000 in 2008 and 7,299 in 2009. The number of illegal immigrants who were deported to their home countries or denied entry at borders during the year was 30,163, a 20.9 percent decrease from 2009…

Additional Links

  1. Jesuit Refugee Service (Europe), Detention in Europe: Spain. Available at http://detention-in-europe.org/index.php?option=com_content&view=article&id=163&Itemid=196 [accessed 13 October 2011]
  2. Amnesty International, Amnesty International Annual Report 2011 - Spain, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce153dc.html [accessed 13 October 2011]
  3. United States Committee for Refugees and Immigrants, World Refugee Survey 2009 - Europe, 17 June 2009, available at: http://www.unhcr.org/refworld/
    docid/4a40d2a6c.html
    [accessed 13 October 2011]
  4. Council of Europe: Committee for the Prevention of Torture, Report to the Spanish Government on the visit to Spain carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 14 to 15 January 2007, 2 March 2009, CPT/Inf (2009) 10, available at: http://www.unhcr.org/refworld/docid/49abc9ac2.html [accessed 13 October 2011]
  5. Council of Europe: Committee for the Prevention of Torture, Response of the Spanish Government to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Spain from 14 to 15 January 2007, 2 March 2009, CPT/Inf (2009) 11, available at: http://www.unhcr.org/refworld/docid/49abca632.html [accessed 2 August 2010]
  6. UN Committee Against Torture (CAT), Consideration of reports submitted by States parties under article 19 of the Convention : Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment : 5th periodic reports of States parties due in 2004 : Spain, 18 February 2009, CAT/C/ESP/5, available at: http://www.unhcr.org/refworld/docid/49f043552.html [accessed 13 October 2011]
  7. Human Rights Watch, World Report 2009 - Spain, 14 January 2009, available at: http://www.unhcr.org/refworld/docid/49705f9069.html [accessed 13 October 2011]
  8. Human Rights Watch, Returns at Any Cost: Spain's Push to Repatriate Unaccompanied Children in the Absence of Safeguards, 17 October 2008, 1-56432-388-9, available at: http://www.unhcr.org/refworld/docid/48f844642.html [accessed 13 October 2011]

[1] Amnesty International, Amnesty International Annual Report 2011 - Spain, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce153dc.html [accessed 13 October 2011]

[2] Ibid.

[3] Amnesty International, Amnesty International Report 2010 - Spain, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a7ff4a.html [accessed 2 August 2010]

[4] Ibid.

[5] United States Department of State, 2010 Country Reports on Human Rights Practices - Spain, 8 April 2011, available at: http://www.unhcr.org/refworld/docid/4da56d88c.html [accessed 17 October 2011]

[6] Ibid.

[7] Amnesty International, Amnesty International Report 2010 - Spain

Detention Overview: Sweden

Introduction

Sweden has been praised for its humane refugee and detention policies. Over the course of the last several years the government has moved away from a punitive system that imposed fines and imprisonment on asylum seekers towards a system where detention and deportation are minimized.[1] Despite their significant advancements, advocates for asylum seeks are troubled by the lengthy detentions of some asylum-seekers as well the Swedish response to Iraqi refugees. 

General Detention Standards

As of December 2009, the Swedish Migration Board operated five secure detention centers and 32 non-secure reception centers for asylum seekers.[2] General policy in Sweden dictates that immigration violations result in detention only when an alien may otherwise go into hiding or pursue criminal activities in Sweden.

The maximum detention period is two weeks for an individual whose status is being determined, and two months for an individual adjudged ineligible to remain in Sweden.[3] Technically, an immigrant may be detained by Swedish authorities for up to two weeks for failure to possess the proper immigrant documents for entry and presence within the country.[4] Asylum seekers are generally not detained unless their asylum case is rejected by the state or they have a removal order pending. 

In addition, within families of immigrants, sometimes only fathers are detained—children and their mothers may stay close by in open facilities run by the Swedish Migration Board.  This arrangement is usually only used for removal orders, and in some cases children may still be detained with their parents.  

Although administrative detention is distinctly distinguished form criminal detention in Sweden, the Migration board may place non-citizens in prisons or police facilities when they are being expelled because of criminal offences or when such forms of detention are considered necessary for the safety of other detainees and staff.[5]

Once detained, immigrants face an average detention stay of several weeks, although the length of detention ultimately depends on the conditions under which an immigrant is detained. The shortest stays are reserved for those immigrants who are detained only to ascertain their identity, a stay typically shorter than 48 hours. If an investigation must be conducted on the right of a particular immigrant to remain in the country, he or she may be detained for up to two weeks. These stays usually apply to those immigrants whose cases are being reviewed under the Dublin II standards, where an immigrant already determined to have passed through a safe country may be returned to that country. 

The lengthiest detention stays usually involve immigrants awaiting an expulsion order. Although the law sets the maximum length of detention for these individuals at two months, the detainee may extend this term following an appeal. Finally, by law, families and unaccompanied minors may not be detained for more than 72 hours. 

Immigrant detention centers are run by an agency of the Swedish government.  Inside these centers, conditions compare favorably to those inside criminal prisons or jails.  Men and women are kept in separate facilities, and no criminals are housed within immigration centers. Upon arrival to the centers, detainees are informed of the rules of the center by facility guards. Detainees may come and go from their rooms at their leisure, although they are not permitted to leave the facility.

In the event of mistreatment or abuse by facility guards, a system is in place and is available to detainees by which to lodge grievances. (Non-governmental agencies are also permitted inside the centers to monitor conditions and offer programs/services.) Strip searches only occur under suspicion of possession of illegal contraband.

Those in detention are allowed to call their families when they arrive and on a regular basis, using cell phones (if they have them) or by phone cards, which must be purchased by detainees themselves. Detainees may also e-mail family or friends, write and receive letters and receive visits from their families. 

Church and other denominational ministers have the right to practice their own religious rites as well as exercise pastoral care. There is a special room for religious services and prayer, accessible for the detainees 24 hours a day.

Medical treatment given to detainees operates under the same standards as the Swedish health care system. As such, medical care is universally available to every detainee for little or no cost. 

Some detainees, however, believe that the health care offered is inadequate, in particular those detainees who require access to health care professionals trained to deal with the special needs of detainees. Pregnant women are given special consideration in detention, as are the elderly and minors. 

Legal counsel may be obtained for free or for a minimal fee, although state-subsidized legal services only cover expenses related to detention. Detainees must cover their own legal expenses for all other legal questions or concerns, although some non-governmental organizations do assist with legal fees. 

When someone is moved to a new facility, the attorney of record and/or family is notified. Each detainee has the right to be provided with a public counsel concerning the detention issue, apart from Dublin II cases. Detainees can also choose their own lawyer.

Despite their more benign approach, Sweden has faced criticism in its handling of Iraqi asylum seekers. Swedish authorities have been detaining Iraqi before deportation without any time limits set by law. The Migration Board rejected most new applications for asylum on the grounds that there was no internal armed conflict in Iraq. In February 2008, an agreement was reached by Sweden and Iraq that gave the Swedish government the authority to forcibly return rejected asylum-seekers to Iraq.[6]

In January 2011, UNHCR expressed concern at Sweden’s continued return policy, particularly as several of the individuals scheduled for return that month were members of targeted religious and ethnic groups.[7] The release noted that a Christian man who had previously been forcibly returned to Baghdad narrowly escapade an attack on a church and had fled Iraq again, although Sweden had agreed to re-admit the individual

Alternatives to Detention

Generally speaking, asylum seekers are not detained in Sweden. Instead, they may choose to live in open centers for asylum seekers or, if possible, with friends and family.  In addition, detainees can sometimes be released on the condition that they report to the police twice a week. 

Additional Information

Jesuit Refugee Service (Europe), Detention in Europe: Sweden, http://detention-in-europe.org/index.php?option=com_content&view=article&id=156&Itemid=189 [accessed 11 October 2011]

From Amnesty International, Amnesty International Annual Report 2011 - Sweden, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce153a50.html [accessed 6 October 2011]

Refugees, asylum-seekers and migrants

Forced returns to Eritrea and Iraq continued despite recommendations to the contrary from UNHCR, the UN refugee agency.

In March the High Court of Migration determined that individuals detained pending transfer to another EU member state under the Dublin II Regulation had the right to legal representation to challenge their detention. 

In November, the Swedish Migration Board announced it would no longer transfer asylum-seekers to Greece under the Dublin II Regulation following serious concerns about the inadequacy of asylum-determination procedures and detention conditions in the country. Following a court ruling in December, it was further agreed that all such asylum-seekers would have their claims examined in Sweden.

In contrast to recent years, the Swedish authorities considered a large number of asylum applications to be “manifestly unfounded”, the majority of which were Roma applicants from Serbia and Kosovo, according to the Migration Board.

The accelerated asylum-determination procedures applied to these cases did not meet international standards for refugee protection; applicants were not given a full asylum interview and were denied access to legal aid. In addition, those whose claims had been rejected could be forcibly returned to their home countries or a third country pending appeal against an initial rejection of their claim.



[1] Global Detention Project, Sweden Detention Profile (December 2009), available at: http://www.globaldetentionproject.org/countries/europe/sweden/introduction.html. [accessed 2 August 2010].

[2] Ibid.

[3] Migrationsverket (Swedish Migration Board), Detention and Supervision, available at  http://www.migrationsverket.se/download/18.770892be1248035046b80003325/forvar_en.pdf [accessed on 6 October 2011]

[4] Ibid.

[5] Global Detention Project, Sweden Detention Profile.

[6] Minority Rights Group International, State of the World's Minorities and Indigenous Peoples 2010 - Sweden, 1 July 2010, available at: http://www.unhcr.org/refworld/docid/4c33310646.html

[accessed 2 August 2010]

[7] UN High Commissioner for Refugees, UNHCR concerned at planned forced return from Sweden to Iraq (18 January 2011), available at: http://www.unhcr.org/refworld/docid/4d37e0c42.html [accessed 6 October 2011]

Detention Overview: Thailand

Current Detention System

An immigrant may be — and is most frequently — detained in Thailand when caught without proper immigrant documentation for entry or presence in the country. Detention may also be used when an immigrant is convicted of a minor or serious legal infraction not having to do with immigrant status.  By law, any alien who enters or comes to stay in Thailand without permission or when such permission expires or is revoked will be deported. Bail is not allowed for those who are charged for illegal entry. 

While Thailand is not a party to the 1951 Convention Relating to the Status of Refugees or its 1967 Protocol, under customary international law the Thai government has an obligation of nonrefoulement (non-return) of persons to places where their life or freedom is at risk.1

The immigrant detention facilities are run by a Thai government agency and are located centrally in Bangkok and along the border in Mae Sot (used to hold people from neighboring Cambodia, Laos, Malaysia and Burma). There are some differences between the facilities. For example, the border facility in Mae Sot, unlike the facility in Bangkok, has no exercise yard and no space for activities of any kind.  Mae Sot also lacks the proper design for long-term detainees, who may nevertheless be forced to live there for long periods of time. Although women are kept separate from men at the center in Bangkok, the center in Mae Sot houses men and women together. In addition, while Bangkok detainees may leave their cells for meals or recreation, detainees along the border are not allowed to leave their cells at all.  

Despite these differences, conditions for immigrant detainees are generally uniformly poor — so bad in fact, that some detainees request transfers back to their original criminal prisons after spending time in immigrant-specific facilities, citing unlivable conditions.

Even in the most egregious cases, there is no grievance system in place readily available to detainees in the event of mistreatment or abuse.  Perhaps worst among the various abuses is the lengthy average prison stay: In practice, the average length of detention is six months or more, with many languishing in prisons for years or more.  Another common cause for complaint among detainees includes inadequate medical care, a lack of detention center rules or regulations, a failure by center authorities to contact family or attorneys when a detainee is transferred from one place to another, and the absence of any special consideration of treatment for vulnerable populations.  

This last complaint — a lack of special consideration for vulnerable populations — is especially critical for children in detention. Children receive no special treatment in immigrant detention centers in Thailand, and are held in equally restrictive environments together with their parents or guardians. Typically, children will be kept with their mothers, and, in some cases, reunited with their fathers a couple times a week.  Boys older than fourteen years of age are held with their father, and then have contact with the mother.  Children are not educated in detention centers. Some child day-care facilities exist in Bangkok and Nong Khai (where Hmong Loa refugees have been detained), but this cannot be equated with formal education because only recreational activity is made available to these children. (Additionally, such daycare is funded by International Office of Migration and is under constant threat of suspension due to inadequate financial support.) Children are not held in less restrictive environments than adults.

Other vulnerable populations — pregnant women, minors and elderly individuals — are technically given special treatment.  However due to the nature of displacement, it is rare that elderly people leave Burma, and therefore would be unlikely to pass through the detention centers anyway.

Detainees are allowed to call their families when they arrive at the centers in Bangkok (except for central IDC in Bangkok, about which no information was available). They can also place calls to family or friends while in detention, write and receive letters (occasionally), and receive only visitors who have proper travel documents.  It costs to use the phone, but it is affordable.  Detainees owning mobile phones are permitted to use them.

In general, detainees in Bangkok have the right to be seen by a judge; however, Burmese detainees may or may not have legal access to courts—some are deported straight away, with no legal recourse. Detainees from the Rohingya group — ethnic Muslims from Burma — are particularly at risk of such legal access discrimination, and are almost never given recourse to legal procedures or remedies. Detainees from some nationalities, particularly Burma, Laos and Cambodia, often spend only a few days in prison before they are repatriated on the basis of their ethnic/national origins. In some cases, the Thai government implements the coercive repatriation of refugee populations. Some of them are recognized as refugees, but their background or impact of life conditions cause them to be rejected for resettlement countries. (For example: armed group associated persons, those with mental illness, etc.). Many of them have to face indefinite periods of detention or choose to return to their country of origin. Whatever the level of access to the courts for a detained immigrant in Thailand, official access to legal assistance or counsel is the same: none. Although Jesuit Refugee Service – Thailand has groups in place who will, on occasion, give legal assistance.

Non-governmental agencies are allowed in detention, and they offer programs and/or services.  However, specific policy towards the intervention or involvement of NGO’s depends largely on the Immigration Commissioner and the Superintendent of the particular Immigrant Detention Center. Jesuit Refugee Service has recently experienced reduced activity and constraints on access for service providing. 

NOTE: 

1) Thailand: End Detention of Lao Hmong Refugees. Human Rights Watch. November 20, 2009, available at:  http://www.hrw.org/en/news/2009/11/20/thailand-end-detention-lao-hmong-refugees [accessed 2 August2010]

Alternatives to Detention

No programs exist as an alternative to detention in Thailand at this time.

Additional Notes

From: United States Committee for Refugees and Immigrants, World Refugee Survey 2009 - Thailand, 17 June 2009, available at: http://www.unhcr.org/refworld/docid/4a40d2b4c.html [accessed 29 July 2009]

Detention/Access to Courts

Thai police routinely arrest and detain refugees outside the camps for illegal residence and, by year's end; there were 187 refugees and asylum seekers at the IDC in Bangkok. The IDC is overcrowded and lacks fresh air, sanitation, medical services, and food. Refugees from bordering states can choose between voluntary deportation and indefinite detention. Refugees from other countries generally have to remain in detention indefinitely until UNHCR can arrange for resettlement.

Authorities continue to detain some 158 Hmong refugees including 27 children, at least four of them born in detention, locked in two cells in Nong Khai after more than two years. IOM provides a nurse and teacher who visit regularly.

In Myanmarese refugee camps, traditional justice systems operate independently of Thai and international law and impose penalties including forced labor, fines, expropriation, detention, and expulsion.

The RTG does not allow UNHCR to enter the Hmong camp to issue refugee certificates but, with UNHCR support, the Ministry of Interior (MoI) issued some 114,300 official identity cards to camp-based refugees from Myanmar over age 12. UNHCR issues documents with photographs to all asylum seekers and refugees who apply at its offices and to each member of their families. Authorities accept none of these documents, however, as evidence of legal presence in the country.

Detention Overview: Ukraine

Introduction

Ukraine is a source and transit country for irregular migrants attempting to enter the European Union. In recent years, particularly since the extension of the passport-free Schengen zone in 2007, Ukraine has increased efforts to police the borders it shares with neighboring countries in the EU.[1]

Current Detention System

An immigrant is detained in the Ukraine if they do not have the proper documentation either to have entered the country or to have stayed in the country for an extended period of time.[2]

Foreign nationals can be expelled and/or placed in administrative detention for a number of immigration-related infractions, including: attempting to enter the country without proper documentation; committing certain categories of crimes; being in the country irregularly; and posing a threat to security, public order, or health.

A number of immigration related offences are subject to sanctions. Persons considered to be in violation of rules for staying in Ukraine can be fined. Illegal entry or border crossing can be punishable by a fine, correctional labor, and administrative arrest.

 While Asylum seekers are specifically exempted from sanctions, Ukraine continues to violate their rights to asylum by “failing to provide adequate and fair asylum procedures and by refoulement, or forcibly returning asylum-seekers and refugees to countries where they faced the risk of serious human rights violations.”[3] Refugees and asylum-seekers continue to be at risk of forcible return. People detained pending extradition have no possibility to challenge the legality of extradition and detention.[4]

In January 2010, the European Union-Ukraine readmission agreement on third-country nationals came into effect, under which EU countries can return irregular migrants who entered the European Union via the Ukraine.[5] The International Organization for Migration reported that 590 people were returned to the Ukraine under the agreement between January and July 2010, including asylum-seekers to whom the agreement covering “illegal aliens” is not intended to apply.[6]

Additional Information

From Amnesty International, Amnesty International Annual Report 2011 - Ukraine, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce1533c.html [accessed 18 October 2011]

At the end of the year four asylum-seekers from Uzbekistan – Umid Khamroev, Kosim Dadakhanov, Utkir Akramov and Zikrillo Kholikov – were in detention awaiting extradition to Uzbekistan. All four were wanted in Uzbekistan on charges including membership of an illegal religious or extremist organization, dissemination of materials containing a threat to public security and order, and attempts to overthrow the constitutional order.

They would risk torture and other ill-treatment if returned. In July, the European Court of Human Rights made a formal request to the government not to return the asylum-seekers to Uzbekistan until their case had been considered, but withdrew this request upon assurances that the men would not be returned until they had exhausted all stages of the asylum process.

From JRS (Europe), Detention in Europe: Refugees Left Unprotected in Ukraine, available at http://www.detention-in-europe.org/index.php?option=com_content&view=article&id=307 [accessed 18 October 2011]

[JRS Europe senior policy officer Stefan Kessler] claimed that the EU-Ukraine readmission agreement ''lacks any sufficient guarantee for the full respect of human rights, because the agreement does not foresee any mechanism for monitoring the treatment of migrants who are returned to Ukraine.''

Considerable improvements have been made for asylum seekers in Ukraine in recent years, thanks mainly to the provision of EU funds. This financial support, however, is not being properly accounted for, claimed Kessler as he called on the EU to ''hold Ukraine accountable for what EU money is spent on and to suspend – at least partly – the readmission agreement'' with Ukraine.

Additional Links

  1. JRS (Europe), No Other Option: Testimonies from Asylum Seekers Living in the Ukraine, available at: http://www.jrseurope.org/publications/JRS%20Europe_Asylum%20Seekers%20in%20Ukraine_June2011.pdf [19 October 2011]
  2. United States Department of State, 2010 Country Reports on Human Rights Practices - Ukraine, 8 April 2011, available at: http://www.unhcr.org/refworld/docid/4da56d79c.html [accessed 18 October 2011]
  3. Human Rights Watch, World Report 2011 - Ukraine, 24 January 2011, available at: http://www.unhcr.org/refworld/docid/4d3e80271a.html [accessed 18 October 2011]
  4. Freedom House, Freedom in the World 2011 - Ukraine, 17 June 2011, available at: http://www.unhcr.org/refworld/docid/4dfb657f1a.html [accessed 18 October 2011]
  5. Amnesty International, Afghan citizens beaten in detention at Ukraine airport, 16 March 2011, available at: http://www.unhcr.org/refworld/docid/4d82fa241e.html  [accessed 18 October 2011]
  6. United States Department of State, Trafficking in Persons Report 2010 - Ukraine, 14 June 2010, available at: http://www.unhcr.org/refworld/docid/4c1883ba32.html [accessed 18 October 2011]
  7. Council of Europe: Committee for the Prevention of Torture, Report to the Ukrainian Government on the visit to Ukraine carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5 to 10 December 2007, 19 May 2009, CPT/Inf (2009) 15, available at: http://www.unhcr.org/refworld/docid/4a126d1f0.html [accessed 18 October 2011]
  8. Amnesty International, Amnesty International Report 2010 - Ukraine, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a7f5c.html [accessed 18 October 2011]


[1] Ukraine Detention Profile Global Detention Project. November 2009, available at: http://www.globaldetentionproject.org/countries/europe/ukraine/introduction.html [accessed 2 August 2010]

[2] Ibid.

[3] Amnesty International, Amnesty International Report 2010 - Ukraine, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a7f5c.html [accessed 2 August 2010]

[4] Ibid.

[5] Amnesty International, Amnesty International Annual Report 2011 - Ukraine, 13 May 2011, available at: http://www.unhcr.org/refworld/docid/4dce1533c.html [accessed 18 October 2011]

[6] Ibid.

United Kingdom Detention Overview

Current Detention System

1. An immigrant is detained in United Kingdom for lack of or improper immigration documents for presence in the country.  Immigrants can be detained at any stage of the procedure to stay in the United Kingdom—this group includes those individuals seeking asylum. 

2. Most immigrant detention centers are substantially similar to jails in United Kingdom.

3. Parents/guardians of minor children are held in detention with their children.

4. In United Kingdom, the only group given special consideration (among pregnant women, victims of torture, asylum seekers/refugees/elderly) are minors.

5. In practice the average length of detention is six months or longer.

6. Some alternatives to detention in the United Kingdom include temporary admission, bail, reporting requirements, electronic tagging, and residence restrictions.[1]

“Immigration detainees may be: asylum seekers whose claims are being processed; immigrants who have not arrived legally; overstayers who have failed to leave the country on expiry of their visas; foreign criminals awaiting deportation; or rejected asylum seekers awaiting removal. In many cases the categories overlap, for example an illegal entrant or overstayer may also be an asylum seeker.

“Detention may be authorised if the immigration authorities have 'good grounds' for believing that a person will not comply with requirements to keep in contact with them. [I]t has been documented that in practice the vast majority of detainees are not provided with reasons for detention on a monthly basis.”[2]

“Unlike most European countries and contrary to the recommendation made by the UN Working Group on Arbitrary Detention, there is no legal limit to the time a person may be held in immigration detention in the UK.15 The UN Working Group recommended in 1998 that the UK government should specify an absolute maximum duration for the detention of asylum seekers and that this should become statutory.”

“This recommendation has not been implemented and asylum seekers remain in detention for indefinite periods. The Operational Enforcement Manual states that ‘in all cases detention must be for the shortest time possible’, however those advocating on behalf of detainees have stated that this instruction is not adhered to in practice. Evidence gathered by Bail for Immigration Detainees (BID) revealed that detention periods of six months were not uncommon and in some cases detention was maintained for over two years, the worst case being a detainee held for just under three years. BID notes that the lack of a statutory time limit for immigration detention results in increased uncertainty and frustration amongst detainees.”[3]

Legal advice and representation

“Research and independent inspections have shown that difficulties in accessing quality legal advice and representation are even more acute when an asylum seeker is detained. This has been raised as an issue of concern by a number of organisations and HM Inspectorate of Prisons has drawn attention to the fact that ‘access to competent and independent legal advice is becoming more, not less difficult, as fewer private practitioners offer legally aided advice and representation.’” [4]

“Organisations working with detainees have reported reluctance on the part of solicitors to take on cases where a client is detained. Solicitors feel that they cannot sufficiently prepare a case within the restricted timeframe set out by the Legal Services Commission (LSC) and there is often an assumption that the case will most likely fail. The additional time spent travelling to visit detainees and trying to secure their release are added burdens for solicitors, particularly because detainees are frequently moved between removal centres.”

“Detainees also experience difficulties in obtaining evidence from their countries of origin because they have less opportunity to contact their community in the UK.34 Research into the provision of legal advice in detention conducted by ICAR found that detainees are not able to easily keep track of their case because access to phones, post and faxes in detention centres are restricted..35 Furthermore, detainees can be transferred to other IRCs without adequate notice, making it even more problematic for regular contact to be maintained between detainees and lawyers.” [5]

“The Department for Constitutional Affairs and LSC propose to award exclusive contracts from April 2007 to provide all legal services for immigration detainees. This would include basic advice surgeries, telephone advice, bail hearings and fast-track work. According to BID, these changes will hit detainees particularly hard: it may make it even more difficult for detainees to obtain legal representation and may force detainees to seek the services of costly private law firms.” [6]

“Efforts to improve legal advice for detainees have been made, for example in December 2005 the LSC introduced the Detention Duty Advice (DDA) pilot scheme, which offers 30 minute free legal advice sessions in all IRCs to approximately 20 detainees per week. The DDA scheme has been welcomed by NGOs, but concerns still remain that the sessions are not sufficiently fulfilling the ongoing demand for quality legal advice and representation.” [7]

Conditions in detention

“Conditions in detention vary considerably between centres; however recurring concerns raised by both advocacy groups and HM Inspectorate of Prisons include a lack of recreational activities, overcrowded accommodation, mistreatment by centre staff, long periods kept in cells, lack of privacy, visiting restrictions, limits on making and receiving calls, an absence of 24-hour medical provision and no facilities to deal with serious illnesses.”

“Other concerns include the insufficient provision of interpreting services which results in detainees having to interpret for one another and thereby breaching confidentiality and affecting the credibility of the system. The need for ensuring that an independent monitoring board is allowed regular access to detention centres has also been identified.”

“The difficult conditions associated in immigration detention have led rise to a number of incidents and disturbances over the years including riots, hunger strikes and arson attacks, such as the major fire at Yarl’s Wood in 2002, where due to lack of proper records there is no knowledge of how many detainees absconded during the fire or even if any were killed.57 The most recent incident occurred in Campsfield IRC, when on 14 March 2007, seven staff and two detainees were injured in a fire after a riot broke out that was reported to have started after attempts were made to remove an Algerian man.”

“Allegations of detainees being assaulted by immigration staff have been reported by NGOs and in the media.59 In 2004 the Medical Foundation examined 14 cases of alleged abuse by staff; in 12 of the cases gratuitous or excessive force was used and at least four of the detainees in the study were found to have been tortured in their countries of origin.” [8]

8. United Kingdom: Parliament, House of Commons Library, Borders, Citizenship and Immigration Bill, 22 May 2009, Research Paper 09/47, available at: http://www.unhcr.org/refworld/docid/4a2653352.html [accessed 21 August 2009]

9. United Kingdom: Parliament, Joint Committee on Human Rights, Legislative Scrutiny: Borders, Citizenship and Immigration Bill, 25 March 2009, HL 62/HC 375, available at: http://www.unhcr.org/refworld/docid/49cb43b02.html [accessed 21 August 2009]

10. Refugees International, Nationality Rights for All: A Progress Report and Global Survey on Statelessness, 11 March 2009, available at: http://www.unhcr.org/refworld/docid/49be193f2.html [accessed 21 August 2009]

11. United States Department of State, 2008 Country Reports on Human Rights Practices - United Kingdom, 25 February 2009, available at: http://www.unhcr.org/refworld/docid/49a8f142aa.html [accessed 21 August 2009]



[1] The Evolution of Immigration Detention in the UK:

The Involvement of Private Prison Companies. http://74.125.47.132/search?q=cache:pm-oLoIAJ-kJ:www.rsc.ox.ac.uk/PDFs/RSCworkingpaper27.pdf+immigrant+detention+in+great+britain&cd=2&hl=en&ct=clnk&gl=us

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Ibid.

Detention Overview - United States

Introduction 

The United States maintains the largest immigration detention infrastructure in the world, with more than 961 sites either directly owned by or under contract with the federal government.1 By 2009, the country’s total immigration-related detention capacity was 33,400, up from 27,500 in 2006. The rapid growth of the U.S. detention infrastructure has been driven in large measure by policies aimed at deporting so-called criminal aliens, non-citizens convicted of certain crimes.2

In recent years U.S. detention facilities have been criticized for allegations of physical abuse of detainees, inadequate medical care, lack of access to legal counsel, and inappropriate conditions of detention, such as confining detainees alongside convicted criminals in jails and prisons.3

Current Detention System

An immigrant may be detained in the United States for failing to possess the proper documentation for entry into the country or for remaining in the country outside the limits of a particular type of visa. Asylum seekers are also generally detained in the United States.  

A mix of private and public entities, both state and federal, is responsible for the care and custody of detained immigrants in the United States. This loose federation of agents in charge of detention management has lead to inequitable application of detention standards, to the extent that such standards exist.  (A small number of standards hold true for almost all detention centers, such as the separation of men and women by facility, and, with the exception of two family facilities, the detention of children in minimum-security centers run by the Office of Refugee Resettlement.) Individuals detained for immigration purposes are also sometimes housed with convicted in criminals in the same facility (separate areas or the same area) and other times in separate facilities just for immigrants. 

The distribution of responsibility for immigrant detention in the United States makes it difficult to paint the system with a broad brush, although by most accounts, the experience of an immigrant in detention is not much different than that of a convicted criminal—and in some instances, it is worse.  Strip searches and forced restraint may occur while an immigrant is detained, and some centers employ solitary confinement.  Immigrants under state supervision are typically made to stay in their cells or rooms unless to leave for meals or recreation.

Regarding communication with the outside world, those being held in detention may write and receive letters and receive visits from family, but in reality, access to detainees by the outside world — or vice versa — is very infrequent. Phone calls are also available to detainees, but occur very rarely. Many times detainees are required to purchase phone cards in order to place phone calls. If a phone card is unavailable, many detainees will attempt to place collect calls costs for party receiving the call, which can be especially problematic for detainees wishing to contact attorneys or representatives. Additionally, once a detainee is moved to a new facility or center, which is not an uncommon occurrence, facility officials will make little or not attempt to inform family members or attorneys of the transfer.

Those detained may or may not have a right to a hearing before a judge or other adjudicative official, depending on legal status and whether they are trying to enter the country or whether they have already passed a port of entry. Mexican nationals within 100 miles of the border are expeditiously removed as are some other immigrants.

If the immigrant is schedule for a hearing before a judge and is able to contact an attorney before or during the adjudicative process, he or she must pay for legal counsel, unless a non-profit agency can be found.  In practice, the average detention stay is several months, but it can be more than six months for some, or as little as a month for others.  The average stay for those unable to post bond can drag on for months, forcing inmates to turn to pleading their way out of detention. 

Conditions for many immigrants in detention are poor, and despite the existence of a grievance system in place, few detainees lodge complaints for either lack of knowledge of such a system or fear of reprisal by detention center staff.  Medical care at immigrant facilities is a regular complaint among detainees, and is considered by many to be inadequate. Although technically health care is available to all detainees and governed by written standards, it is inefficiently and inadequately practiced. Presently, legislation is being considered both to address the lack of access to proper medical care for immigration detainees and to instate broad reforms of the detention system in general. 

In October 2009, in response to nationwide advocacy efforts and congressional pressure, Department of Homeland Security (DHS) Secretary Janet Napolitano and U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced new initiatives to begin to address the need for reform of the immigration detention system. Assistant Secretary John Morton highlighted the principles the Department hopes will guide this reform process outlined in this fact sheet. (Click here to download a PDF of the fact sheet.) The reforms are set to roll out incrementally over the next two years. To its credit, DHS has actively engaged the advocacy and human rights community in discussing and analyzing plans for reforming the detention industry but advocates remain concerned about the current conditions in detention facilities and the continuing growth of the detention industry in the meantime. 

Alternatives to Detention

Alternatives to detention exist in the United States, but they are used sparingly. Current trends indicate that over 300,000 men and women will be detained on immigration charges in 2009. Of that total, Immigration and Customs Enforcement (ICE) reports that fewer than 20,000 individuals currently participate in alternative-to-detention programs.  New leadership within ICE, however, may signal a shift in attitudes—and policies—towards the use of alternative programs. The Office of Detention Policy and Planning (ODPP), created on August 9, 2009, now bears responsibility for the creation and implementation of reforms within the system of immigrant detention in the United States.  Among the areas of focus within this reform is the "Alternatives to Detention Management," which will "develop a national strategy for the effective use of alternatives to detention including community supervision." 

The Office of Detention and Removal Operations (DRO) runs three enhanced supervision programs: the Electronic Monitoring Program (EMP), the Intense Supervision Appearance Program (ISAP), and the Enhanced Supervision/Reporting Program (ESR). The EMP uses telephonic reporting with voice verification, radio frequency with ankle bracelets and global position satellite to ensure compliance with the demands of supervised release from detention. The ISAP uses supervising case specialists as well as curfews, electronic monitoring devices and community collaborations that support the participant. The number of ISAP participants currently number 5700, with a maximum of 6000 participants. Finally, the Enhanced Supervision/Reporting (ESR) Program, like the ISAP, closely supervises participants with electronic monitoring, residence verification, home visits, in-person reporting and travel document information collection.  (Unlike, ISAP, ESR requires fewer home visits and in-person reporting visits and does not incorporate community referral requirements.  There are currently 6600 ESR participants, and the program permits a maximum of 7000.   

The JRS/USA chaplaincy programs provide pastoral and religious assistance to meet the needs of non-citizens detained by the Department of Homeland Security (DHS).

Additional Links 

1. NILC: “A Broken System: Confidential Reports Reveal Failures in U.S. Immigrant Detention Centers”
http://www.nilc.org/immlawpolicy/arrestdet/A-Broken-System-2009-07.pdf

2. NY TIMES: “U.S. Rejects Calls for Immigrant Detention Center Rules”
http://www.nytimes.com/2009/07/29/nyregion/29detain.html?_r=1

3. LOS ANGELES TIMES: “Deportations carried out in the middle of immigration cases”
http://www.latimes.com/news/local/la-me-immigcourt22-2009may22,0,4704874.story

4. NY TIMES: “Deaths Show Hurdles to Detention Reform”
http://www.nytimes.com/2009/08/21/nyregion/21detain.html?scp=1&sq=immigrant%20detention&st=cse

5. NYTIMES: “U.S. to Reform Policy on Detention for Immigrants”
http://www.nytimes.com/2009/08/06/us/politics/06detain.html

Additional Notes

From: Amnesty International, Amnesty International Report 2010 - United States of America, 28 May 2010, available at: http://www.unhcr.org/refworld/docid/4c03a7f328.html (accessed 2 August 2010)

Migrants and asylum-seekers

Tens of thousands of migrants, including asylum-seekers, were routinely detained, in violation of international standards. Many were held in harsh conditions and had inadequate access to health care, exercise and legal assistance. In August, the government announced a number of proposed changes, including strengthening federal oversight of immigration detention facilities and consultation on alternatives to detention. However, it declined to make nationwide standards governing conditions in detention enforceable by law.

In May, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions expressed concern about deaths of migrants in Immigration and Customs Enforcement (ICE) custody resulting from inadequate medical care. He found that more deaths had occurred than the 74 officially recorded since 2003 and urged that ICE be required to promptly and publicly report all deaths in custody, with each death fully investigated.

From: Jailing Refugees, Human Rights Watch. December 29, 2009, available at: http://www.hrw.org/en/node/87369/section/2 (accessed 2 August 2010) 

Each year, the US government sends officials to refugee camps overseas to interview thousands of people displaced by persecution and conflict, classifies a select number as refugees in need of resettlement, and brings those refugees to live in the United States. After one year in the United States, every resettled refugee is required to apply for lawful permanent resident (LPR) status, more familiarly known as a “green card.” However, refugees’ limited English, ignorance about the requirement, confusion over the legal process, and lack of resources, as well as the government’s failure to notify them of the requirement, often prevents them from timely filing to adjust their legal status. In some parts of the country, the consequence of not applying can be lengthy, indefinite and arbitrary detention by Immigration and Customs Enforcement (ICE). The purpose of this report is to encourage legislative and policy changes that will eliminate the potential for indefinite detention of resettled refugees for failure to file for adjustment to lawful permanent resident status after one year in the US.

US law requires all resettled refugees to apply to US Citizenship and Immigration Services (USCIS), the division of the Department of Homeland Security (DHS) that administers immigration benefits, for lawful permanent resident status (LPR) after one year of physical presence in the United States. This process of applying to be an LPR is referred to as adjustment of status. Even refugees who, like David, enter the US as children must apply to adjust their legal status after living in the United States for one year. There is no system in place to alert refugees to this legal requirement in advance of the expiration of their year in the United States.

Resettled Refugees Have Fled War and Upheaval

In U.S. law, refugees are defined as individuals who are outside their country of nationality or habitual residence who are unable or unwilling to return because of persecution or a well-founded fear of persecution. Like all other refugees, the detained resettled refugees interviewed by Human Rights Watch come from backgrounds of war and extreme upheaval. Many refugees suffered severe trauma and hardship before escaping to safety.

Refugees often spend years in refugee camps or other temporary communities before being selected for resettlement by the US government. Although most refugees are happy to escape to the safety and stability of the United States, adaptation to the American way of life can be challenging. A war zone or refugee camp is worlds apart from a typical American neighborhood. Moreover, many refugees know minimal English and have had only sporadic schooling due to war and instability in their own countries and the harsh conditions of refugee camps. They may also suffer from post-traumatic stress disorder or other anxieties caused by war.

Many resettled refugees do not understand that after one year in the United States they are required to adjust their immigration status by applying to become lawful permanent residents. There is no expiration date on the I-94 card that resettled refugees receive upon entry to the US, so refugees often assume that they have permanent permission to live in the United States. Even those refugees who do know that they should apply for a status adjustment—or a green card—may not realize that they must apply exactly after one year of physical presence in the United States. Minimal English language skills increase the likelihood that refugees will fail to understand the need to apply for adjustment. Moreover, the government does not remind refugees of the need to adjust, and in fact will even issue travel documents to refugees who have not adjusted, allowing them to travel outside the US. Prior to their arrest by ICE and subsequent placement into immigration detention, none of the refugees interviewed by Human Rights Watch had been aware of the potential consequences of failure to adjust. 

Unadjusted refugees receive no warning before being placed in indefinite detention. Refugees are transported to detention facilities and then held until their status adjustment applications are processed and adjudicated. This application process can last from a few months to over a year. Separation from loved ones and the inability to provide financial support to one’s family are the inevitable consequences of such detention. The results can be devastating, particularly for those detainees with young children.

Detention Conditions Are Highly Stressful for Refugees

The psychological stress caused by separation from family, and by the detention itself, can be very damaging. Many refugees spoke about the humiliation of being treated indistinguishably from migrants who enter the US illegally. Detainees are upset that the same government that has selected them for admission to the US will then place them in indefinite federal detention. Although many of the refugees detained for failure to adjust have criminal convictions, they have already completed the punitive sentences imposed upon them by the criminal justice system before they are placed in immigration detention for failure to adjust. In many cases, the incarceration imposed for the refugees’ criminal offenses is shorter than the time they spend in immigration detention. 

Unlike criminal detention or probation, where individuals serve sentences of known duration, unadjusted refugees do not know what the length of their detention will be. While in detention, refugees must file a written application for adjustment of status, undergo a physical examination, and complete required vaccinations. They are then interviewed, after which their application to adjust is either granted or denied. If their green card is denied, hearings are initiated in immigration court to determine whether the refugee is removable—that is, whether they have forfeited their right to safety in the US and are eligible to be returned to their country of origin. Often, refugees are unaware of how their cases are proceeding and unsure of what the next steps in the process will be.

––––––––––––––––––––––––

From: Human Rights Watch, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, 25 July 2010, 1-56432-665-9, available at: http://www.unhcr.org/refworld/docid/4c4d344c2.html (accessed 2 August 2010)

Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System 

Every year, several hundred thousand people in the United States are arrested for possible deportation by Immigration and Customs Enforcement (ICE).  The vast majority are held in immigration detention, both during and even after their deportation hearings in immigration court. At least 15 percent of these immigration detainees—an estimated 57,000 people in 2008—are thought to have a mental disability, some so severe that they do not know their own names or do not understand that deportation means removal from the country. 

Despite these large numbers, the immigration system lacks meaningful safeguards for people with mental disabilities—including US citizens— throughout the arrest, detention, deportation hearing, and removal process.  Deportation by Default highlights these deficiencies, including no right to appointed counsel; inflexible detention  policies that can result in lengthy and arbitrary detention, sometimes for years; lack of substantive or operative  guidance for attorneys and judges when people with mental disabilities are unable to present claims to remain in the US without support. 

The current immigration system violates US and international human rights standards of fairness and protections against arbitrary and indefinite detention, and puts people with mental disabilities—including US citizens— at risk of erroneous deportation. 

The responsibility for the enforcement of immigration law within DHS rests with two bureaus:

• The Bureau of Customs and Border Protection (CBP) that controls borders.

• The Bureau of Immigration and Customs Enforcement (ICE) that is responsible for enforcing immigration laws within the interior of the United States.

What Is Detention?

Legal and undocumented immigrants who are awaiting deportation hearings are kept in detention. Detention centers are basically prisons that are run by the government or private companies. Immigrants are detained for a variety of reasons, such as committing a criminal offense, seeking asylum, or having undocumented immigration status. Conditions are often harsh. Detainees have limited access to communication and are transferred from one part of the country to another, without regard for access to their family and lawyers. Since 2004, 66 people have died in detention—including legal permanent residents—with numerous allegations of medical negligence1.

Detention Centers not only house individual detainees, but are also increasingly housing families. In 2006, a facility was built in Texas to detain families. The "Detention of Immigrant Families report describes this "practice of detaining families in jail-like, criminal settings" where families are allowed no more than twenty minutes to eat at mealtime and children receive less than one hour of schooling per day.

Number in Detention Today

On any given day, the system overseen by the Bureau of Immigration and Customs Enforcement (ICE) detains about 27,500 people or over 230,000 people a year3. Since 1994, the average daily detention population has grown five times over, from 5,532 to 27,500.

Cost of Detention

The government spends $1.2 billion of taxpayer's money each year to detain immigrants, some of whom have committed no crime. It costs between $50–95 a day to keep people in jail—more than it costs to educate a child4. The vast majority of detainees—approximately 63 percent—are held at hundreds of city and county jails around the nation alongside convicted criminals, even though many immigrants face deportation for civil violations.

Lack of Legal Assistance

84 percent of all detained immigrants have no lawyer5. Many immigrants, especially if they are undocumented, do not even get the chance to appear before a judge.

Where Is the Judge?

Right now, our laws tie judges’ hands despite the far-reaching consequences of deportation. This means that if a person is found to be in violation of strict immigration law, judges can only rubber-stamp the decisions of immigration officials, and have no power to review the particular circumstances of the individual case.

What Is Deportation?

Deportation is the expulsion of an immigrant from the United States. Every immigrant who is a noncitizen, regardless of how long they have been in the United States, is vulnerable to permanent exile from their families and lives in the United States.

Number of Deported Immigrants

Deportation rates are on the rise. Since 1996, almost 2 million6 legal and undocumented immigrants have been deported for a variety of reasons including nonviolent offenses or undocumented status. The Department of Homeland Security claims it is removing violent criminals, but will not release complete numbers. Human Rights Watch7 estimates that more than 500,000 people have been deported for nonviolent offenses, many of which are minor, as compared to 140,000 for violent offenses. Approximately 1.6 million spouses and children living in the United States have been separated from their spouse or parent because of these deportations.