Alternatives to Detention: A Legal & Practical Necessity

1. Alternatives to Detention: A Legal & Practical Necessity Dr Cathryn Costello,BCL, LLM, BL Refugee Studies Centre, Oxford Presentation, IDC Conference, Brussels 27 March 2014 cathryn.costello@law.ox.ac.uk

2. OVERVIEW I. ATD as Legal Necessity 1. Refugee Convention 2. ICCPR 3. ECHR 4. EU Law – recast RCD II. ATD as practical necessity – Insights from the Empirical Research

3. Sources • C Costello 'Human Rights & the Elusive Universal Subject: Immigration Detention under International Human Rights and EU Law ' (2012) Indiana Journal of Global Legal Studies 257 • Costello, C and Kaytaz, E ‘Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva’, (2013) UNHCR Legal and Protection Policy Research Series www.refworld.org/docid/51a6fec84.html

4. I. Insights from empirical Research

5. Background to Empirical Project Aim: to understand the workings of ‘alternatives to detention’ (ATDs) in Toronto, Canada, and Geneva, Switzerland in particular by bringing to bear the perspectives of those they affect most directly, asylum-seekers, refugees and other migrants. Costello, C and Kaytaz, E ‘Building Empirical Research into Alternatives to Detention: Perceptions of Asylum-Seekers and Refugees in Toronto and Geneva’, (2013) UNHCR Legal and Protection Policy Research Series www.refworld.org/docid/51a6fec84.html

6. Literature on ATDs • A. Edwards, ‘Back to Basics: The Right to Liberty and Security of the Person and “Alternatives to Detention” of Asylum-Seekers, Refugees, Stateless Persons and Other Migrants’, UNHCR, April 2011 • R. Sampson et al., ‘There are Alternatives: A Handbook for Preventing Unnecessary Immigration Detention’,International Detention Coalition, 2011 • Jesuit Refugee Service (JRS) Europe, ‘From Deprivation to Liberty. Alternatives to Detention in Belgium, Germany and the United Kingdom’, December 2011

7. Literature on Regulatory Compliance • T. Tyler, Why People Obey the Law (Princeton: Princeton University Press, 2006). • D. Kirk, S. David, A. V. Papachristos, J. Fagan, and T. Tyler ‘The Paradox of Law Enforcement in Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety?’ (2012) The Annals of the Academy of Political and Social Science, v641 n1: 79-98.

8. ‘Workings’ • Refugee perspective – secure access to protection, fairness of RSD, supportive RC • Host community perspective – facilitate integration of those who will stay, trust in RSD and other governmental systems • State perspective – ensure asylum seekers co-operate in RSD …

9. 4 Key Subjective Factors mean asylum seekers tend to be pre-disposed to be co-operative • the refugee predicament and fear of return; • inclination towards law-abidingness and commitment to obey the law; • trust and perceptions of fairness of the host state, in particular in its RSD process; • the desire to avoid irregular residence, in particular the attendant hardship and vulnerability.

10. Objective Factors – How the state may support or undermine that cooperative disposition • Reception conditions (RC) • Fairness of RSD and other legal processes • Holistic support

11. Qualitative Interviews

12. Impact of Legal Assistance (Toronto) • ‘It is crazy, but yeah, I do have trust in the system because I understand it.’ • ‘It’s going to be fair, I have to be positive. [Our lawyer] says we have a very strong case. I do believe that. It is going to be a positive one I have no doubt. I trust the system, I trust the hands of the people that I am in right now.’

13. Impact of legal assistance (Toronto shelter assistants) ‘What we hear from other refugees isn’t the always the right thing, so I prefer to listen to my caseworker, because they know. (…) Yesterday somebody was telling to file for refugee claim, and then to file for humanitarian and compassionate. So I asked my caseworker, she said it is no good for me because I am not established here. Usually it is for people who have jobs and ties here. I trust my caseworker.’

14. Holistic support

15. Holistic Support • Comprehensive, individualised support and advice to navigate life in the host country and provide information on all possible avenues to regularize residence.

16. Holistic Support (Toronto Shelters) • ‘They are my family.’‘I’m a foreigner but I feel like one of them.’ • ‘I’ve never seen anything like this. They just help, help, help. (…) To me it is perfect. I don’t have anywhere is to compare it with, so I don’t have anywhere else to compare it with, but I think Canada is the best. Especially from Britain, I haven’t been to Britain but from what I read online it is really horrible. (…)’

17. Holistic Support (Toronto) ‘Living in the hostel helped me with the hearings. There were talks. I met people who were in the similar situation. They have talks in the evening. They help us get lots of information, they tell you how to go to school, to get a student permit. I am studying hospitality. They advised me about what to study.’

18. Conclusions

19. Elements of a well-functioning asylum system • Frontloading of early, independent legal advice • Multiple sources of trusted legal assistance and holistic support • Fair RSD • Adequate RC • Integration measures for recognised refugees and those who are non-returnable