Alternatives to detention and their practical implementation

1. Alternatives to detention and their practical implementation IDC Europe Regional Workshop – Brussels, March 27 2014

2. Session overview 1 - Global trends 2 - International research on alternatives to detention, highlighting spectrum of models 3 – Reflection on successful development and implementation strategies

3. Global trends • States are increasingly concerned about effective migration management, especially with regards to irregular migration. • Custodial detention models have proven financially costly. • Custodial detention has led to criticism for their impact on human rights. • No evidence that detention deters. • There is an increasing global awareness, exploration and implementation of alternatives to detention.

4. Alternatives to Detention (ATD) Any legislation, policy or practice that allows for asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved Photo: Migrant shelter in Lebanon

5. Research: practices in 28 countries considered • Highlighting spectrum and the benefits of ATD • Community Assessment and Placement (CAP)

7. Presumption against detention One • Certain vulnerable groups are not detained • Grounds for detention as a last resort and limitations on detention are clearly outlined in law • Procedures to direct officers to assess, explore and implement liberty and community-based alternatives in the first instance Ensuring a presumption against detention, and detention as a last resort in law and there is a legal mandate for alternatives in law, including:

8. Presumption against detention One Is there any presumption against detention in your country?  For anyone?  Who and why? Law, policy or practice?  Has/how has the presumption against detention been transposed to national law?

9. Screening and assessment Two • Informed decision making • Avoid wrongful detention • Minimise use of resources • Minimise harm • Prevent unnecessary immigration detention • States with screening and assessment processes are better placed to make informed decisions on the need to detain, not detain or conditional release, and under what circumstances.

10. Screening and assessment Two

11. Vulnerability considerations Two

12. Screening and assessment examples • USA • Tanzania • Lebanon • Jordan • Kenya • New Zealand • Sweden • Australia • Belgium • Hong Kong

13. Screening & assessment Two • How do your governments decide whether to detain or not? • Is screening & assessment used in decision making regarding detention or ATD in your country? Who conducts it? • What is the purpose of the assessment? • E.g. To screen people into detention or to screen people out?  (Ideal would be to screen in – with the presumption being that detention not necessary)  • Is it effective? • Is it reviewable? • What are the gaps?

14. Community setting Three Assessing the community setting assists in determining factors that support or undermine a person’s ability to remain engaged in process and comply with authorities during case resolution Decisions regarding referral, support and management required can then be made ATD housing project for families in Brussels, Belgium

15. Alternatives to immigration detention ATD programs are most successful when: Individuals are informed and feel they have been through a fair process Focus on early intervention Provide holistic case resolution and case management, not simply a focus on return Conditions are not overly onerous / setting up people to fail Allow individuals to meet their basic needs (housing, legal & welfare supports) Key research findings

16. Case management • Comprehensive, co-ordinated & individualised approach • Preparing, supporting and empowering individuals throughout their immigration process to make informed decisions • Ensure individuals can meet their needs & access rights whilst their status is being resolved • Focus on welfare, psychosocial needs and all immigration outcomes • Can improve cooperation and compliance with immigration requirements as assists individual to stay engaged with processing

17. The community setting Three Successful case management strategies focus on case resolution for those facing return: • Identify barriers to departure • Stabilize health and assist individuals cope and have trust in the process • Assist individuals explore a long-term sustainable solution, such as: • Exploring legal options to remain • Reassessment of new case information • Exploring third country options and relocation to other areas in country of origin • Exploring repatriation support needs

18. What do community support mechanisms look like? Examples include: • Documentation • Legal aid • Safe spaces to access information, emergency assistance (e.g. drop in centers) • Shelters • Open reception centres • Assisted voluntary return programs • Family or ethnic community • Self sufficient/own recognizance • Case management

19. Community placement Three • Can you think of examples of good services and procedures your government provides for other populations of concern, e.g. for children, the elderly, the sick, homeless persons, those without money for lawyers? • Have any of these been used for people at risk of detention? Could they be? • Do any of the following exist for people at risk of detention? • Documentation • Case management • Services for basic needs • Legal aid

20. Apply conditions if necessary Four • Individual undertakings Requirements on an individual to comply and cooperate • Monitoring & Supervision Mechanisms such as reporting, registration or nominated address • Negative consequences for non-compliance Such as bail, bond and surety arrangements • Intensive case resolution Involves coordination and case management and return programs

21. Conditions Four • Does your government automatically impose conditions on people they decide not to detain? What type of conditions? • If yes, how do they usually justify those conditions? • Are the conditions subject to review? Are they necessary, proportionate? • How might you persuade your government only to use conditions as a last resort in ATD?

22. Detention as a last resort Five • Detention should only ever be used as a last resort. Community-based alternatives must be pursued first. • Where used, there should be established: • Grounds for detention in law • Avenues for release • Time limits • Access to judicial review/legal advice • Minimum standards/conditions • Independent monitoring

23. Summary - CAP Detention should only ever be used as a last resort By assessing the individual context, referring to community programs and applying conditions in the community if required, governments can make informed decisions on individual placement, management and support requirements and prevent unnecessary detention These mechanisms reduce the financial and human cost of immigration detention while meeting government and community expectations

24. Lessons learnt from ATD models How have ATD models developed? • Legislative reform • Policy developments • Research • Working groups • Pilots and programs

25. Thank you www.idcoalition.org

26. Who should screen & assess? State obligation to ensure no unlawful detention • Point of first contact – police, border officer, immigration official • Judiciary • Detention/prison officers Collaboration with other actors • Lawyers, Social workers, UNHCR/IOM, others?

27. Where to screen & assess? • Point of detection – e.g. at border, registration point • In community • In detention Consider: • Privacy, confidentiality, information management • Regular review