Detention of persons of concern a continuing and growing phenomenon

1. IDC Workshop on Alternatives to detentionBrussels 27 – 28 March 2014UNHCR Guidelines on Detention and Alternatives (2012)

2. Detention of asylum seekers and refugees is a global and persisting phenomenon • UNHCR is deeply concerned that large numbers of refugees and asylum-seekers in different areas of the world continue to be subject of detention or similar restrictive measures because of their illegal entry or presence in search of asylum, pending resolution of their situation. Detention of persons of concern a continuing and growing phenomenon

3. As early as 1986 UNHCR called upon States in EXCOM Conclusion No 44 that in view of the hardship which it entails, detention should normally be avoided and that if necessary, detention may be resorted to only on grounds prescribed by law EXCOM Conclusion No. 44

4. UNHCR first mentioned alternatives to detention in its Detention Guidelines of 1999 which were superseded in 2012 by Guidelines on Detention and Alternatives for Asylum Seekers. UNHCR 1999 Guidelines on detention & UNHCR 2012 Guidelines on detention and alternatives for asylum seekers

5. Back to Basicsby Alice Edwards (2010) Building Empirical Research into Alternatives to Detention by CathrynCostello (2013). UNHCR commissioned research in the field of alternatives to detention

6. UNHCR will also soon publish a Manual together with APT and IDC on monitoring places of immigration detention Manual on Monitoring places of immigration detention

7. 1st Global Roundtable on Alternatives to Detention (ATD) of Asylum-Seekers, Refugees, Migrants and Stateless Persons, Geneva May 2011 (UNHCR OHCHR):38 participants (19 countries: officials, intl’ organizations, human rights mechanisms, national human rights institutions, national and international non-governmental organizations (NGOs) and academic experts) In 2011 the RRWE organised a regional RT in Brussels to facilitate the sharing of good practices around alternatives in Western European countries UNHCR Round Tables on detention

8. In Europe, UNHCR conducted research on alternatives to detention in Nordic and Baltic and Central European States. • UNHCR Office in Malta issued UNHCR’s position on detention in Malta in 2013 and is working on a paradigm shift from detention through a renewed reception strategy. The same is done by UNHCR in Greece. Evidence based research & thematic country positions

9. UNHCR will soon roll out a Global Detention Strategy  (2014-2018) which aims to work with governments and other partners to reduce the rate and length of detention of asylum-seekers, particularly for children, promote alternatives to detention, improve conditions of detention where detention is necessary and unavoidable. UNHCR’s Global Detention Strategy

10. Reflecting current state of international law, the Guidelines are intended to guide: • a) governments in their elaboration and implementation of asylum and migration policies which involve an element of detention; and • b) decision-makers, including judges, in making assessments about the necessity of detention in each individual case. • There are 10 guidelines in total, addressing the main aspects of detention in the asylum context. The 2012 Detention Guidelines

11. Seeking asylum is not an unlawful act, States should institute open and humane reception arrangements • Fundamental right to liberty and against arbitrary detention apply to all persons, regardless of their immigration or other status. • Detention of asylum-seekers should in principle be avoided, be a measure of last resort, prescribed by law and applied only where necessary and proportionate to a legitimate purpose. • Alternatives to detention need to be considered. Main messages

12. The 10 Detention Guidelines

14. Right to seek and enjoy asylum is enshrined in international law. • Seeking asylum is not therefore an unlawful act. • Art. 31, 1951 Convention provides for the non-penalization of illegal entry or stay of asylum-seekers under certain conditions. • Position of asylum-seekers differs fundamentally from that of ordinary migrants: • they may not be able to comply with legal formalities for entry owing to urgency of the flight and/or lack of documentation from authorities because of fear of persecution. Guideline 1Right to seek asylum

15. Rights to liberty, security of person and freedom of movement are expressed in international and regional human rights instruments, and apply to asylum-seekers. • Art. 26 and 31, 1951 Convention and UNHCR ExCom, Conclusion on Detention of refugees and asylum-seekers, No. 44 (XXXVII) 1986 refer to their application in the case of asylum-seekers and refugees. • Detention of asylum-seekers is a measure of last resort. Guideline 2Rights to liberty and security of person apply to asylum-seekers

16. Any deprivation of liberty not governed by or in conformity with national law is unlawful. • national law must establish a degree of foreseeability and predictability (legal certainty). • the law should not operate retroactively. • make explicit the grounds on which detention may be authorised. • best practice would also encourage express maximum limits in law. Guideline 3Detention in accordance with and authorised by law

17. Arbitrariness includes not only unlawfulness but also elements of inappropriateness, injustice and lack of predictability in the norm or in its practical application. Detention needs to be, then: • necessary in the individual case • reasonable in all circumstances • proportionate to a legitimate purpose. Guideline 4Detention must not be arbitrary

18. The legitimate grounds of detention should be clearly and exhaustively defined in legislation. Three legitimate purposes of detention • to protect public order. • for public or individual health reasons. • to protect national security. 4.1 Detention must pursue a legitimate purpose

19. Reasons provided under this ground include: • Prevention of absconding • In connection with accelerated procedures for manifestly unfounded or clearly abusive claims • For initial identity and/or security verification • To record during a preliminary interview basic elements of the application for international protection To protect public order

20. Health checks if justified in the individual case and/or as a preventive measure Suitable facilities Only medical personnel, subject to judicial oversight, can order further confinement For public or individual health reasons

21. Governments may detain particular individuals if assessed that they pose a threat to national security, but subject to the safeguards in the Guidelines. The detention measure should always be: • necessary, • proportionate to the threat, • non-discriminatory, and • subject to judicial oversight. To protect national security

22. As a penalty for illegal entry • As a deterrent to seeking asylum • On grounds of expulsion Purposes not justifying detention

23. Necessity, reasonableness and proportionality of detention to judged in each individual case, initially as well as over time: • need to detain: • reasonableness of detention: • the proportionality principle: balance between the public policy objective of respecting one’s right to liberty and the public policy objective of limiting or denying that right. • Also requires consideration of alternatives. 4.2 Necessity, reasonableness and proportionality

24. Consideration of less coercive or intrusive measures (that is, alternatives to detention) • need to be established in laws and regulations, • need to be subject to human rights oversight, including periodic review, • should not be used as alternative forms of detention, nor become alternatives to release, and • should be tailored to the particular needs of vulnerable groups 4.3 Alternatives to detention

25. ATD are most effective when asylum-seekers are: • treated with dignity, humanity and respect • provided with clear and concise information about rights and duties and the consequences of non-compliance, • given access to legal advice throughout the procedure, • provided with adequate material support, accommodation, reception conditions and access to self-sufficiency, • able to benefit from individualised case management services, • have access to adequate documentation. Alternatives to detention cont’d

26. Types of alternatives to detention

27. International law prohibits detention or restrictions on the movement of a person on the basis of proscribed grounds, including asylum-seeker status. Guideline 5Detention must not be discriminatory

28. The length of detention can render an otherwise lawful decision to detain, disproportionate and therefore arbitrary • Maximum periods of detention should be set in national legislation. Guideline 6Temporal limits to detention

29. Reason for detention and rights • Legal counsel • Regular reviews • Access to asylum procedures • Data protection • Effective remedy and compensation for any violations. Guideline 7Minimum procedural safeguards

30. If detained, asylum-seekers are entitled to the following minimum conditions of detention, including: • Detention in places officially recognised as places of detention. • treated with dignity and in accordance with international standards. • keep a registry on detainees information available and accessible to relevant interested parties. • maintain sex segregation, unless within the same family. • be provided adequate health care and medical treatment. Guideline 8Conditions of detention

31. maintain regular contact and receive visits from relatives, friends, religious, international and non-governmental organisations and legal counsel. • conduct some form of physical exercise and indoor/outdoor recreational activities. • have access to adequate basic necessities. • have access to reading, learning and educational or vocational training materials. • have access to complaints mechanisms. • all staff working with detainees should be properly trained. Guideline 8Conditions of detention cont’d

32. Victims of trauma or torture • Children • Women • Victims or potential victims of trafficking • Asylum-seekers with disabilities • Older asylum-seekers • Lesbian, gay, bisexual, transgender or intersex asylum-seekers Guideline 9Special circumstances and particular needs

33. Monitoring including • regular visits to detainees, or • unannounced inspection visits. UNHCR access Guideline 10Independent monitoring and inspection

34. The Guidelines are available in Refworld: • http://www.unhcr.org/refworld/docid/503489533b8.html ThankYou!