Agenda Item 3 (ii), Detention of Asylum-Seekers and Refugees: The Framework, the Problem and Recommended Practice (document EC/49/SC/CRP.13 dated 4 June 1999)

1. As NGOs concerned about the continuing and, indeed, growing problem of detention of refugees and asylum seekers in 1999, we welcome the inclusion of this question on the agenda of the 15^th meeting of the Standing Committee of the High Commissioner’s Programme. In particular we welcome the recognition in document EC/49/SC/CRP.13 ("the paper") of the "increasing institutionalization" of detention and that this is a "recurring protection problem" which UNHCR "abhors". The comments made herein are not exhaustive, but are intended to provide a constructive contribution to this important discussion.

2. In 1998, we celebrated the 50^th anniversary of the Universal Declaration of Human Rights and the importance of human rights was highlighted. In this time of increasing awareness of human rights, however, there are some areas where such awareness is accompanied by diminishing respect for human rights. Detention of asylum seekers and refugees is one such area.

3. The starting point for any discussion on detention practices must always be that there is a fundamental right to liberty. Arbitrary and unlawful detention of asylum seekers and refugees is prohibited by international law. In this regard, concerns about detention practices have been usefully expressed in a number of fora, including the UN Human Rights Committee, the Committee on the Rights of the Child, the Working Group on Arbitrary Detention, and the UN Commission on Human Rights. In addition, a number of human rights NGOs and national human rights institutions have sought comprehensively to highlight the problem with a view to finding ways of addressing the problem. It is clear, therefore, that the problem of detention of asylum seekers has been squarely raised as a human rights issue. As has also been noted in the paper, regional human rights institutions have also expressed concern about detention of asylum seekers.

4. In addition, it is well recognized that there are grave violations of well established principles and standards, including in industrialized countries, regarding conditions of detention. This is noted in the paper (paragraph 11).

5. Within the UNHCR context, there have been EXCOM Conclusions which have expressed concern about the phenomenon of detention, including most recently in the conclusion of the forty-ninth session of the Executive Committee in 1998. In addition, the problem of detention prompted UNHCR to revise its 1996 Guidelines on Detention to bring them more into line with international jurisprudence and legal thinking. They also clearly reaffirm the importance of compliance with established standards of detention. These revised guidelines were published in 1999.

6. In certain contexts, some States have sought to justify detention of asylum seekers on the ground that it reflects the principle of national sovereignty. The principle of national sovereignty, which permits states to control who shall or shall not enter and remain in a state or territory, is well recognized in international law. However, so too is the right to seek and enjoy asylum which first found formal expression in the Universal Declaration of Human Rights. The right to seek and enjoy asylum is a principle of customary international law. In a similar vein, the rights not to be arbitrarily or unlawfully detained are binding international legal principles. It is therefore not enough simply to cite the principle of national sovereignty as authorizing detention of asylum seekers. Rather, this principle must be tempered by fundamental human rights guarantees enshrined in international law.

7. It is well recognized that the detention of asylum seekers "should normally be avoided" (EXCOM Conclusion 44). Indeed, the revised detention guidelines state that there should be a presumption against detention (Guideline 3). Detention of undocumented or inadequately documented asylum seekers is, in a number of countries, automatic or mandatory. While in the same countries, the numbers detained overall may be a relatively small proportion of total asylum seeker numbers (including those who arrived documented), we believe that this does not mean that detention of asylum seekers is normally being avoided. Detention of asylum seekers should normally be avoided regardless of mode of arrival in the country of asylum.

8. Mandatory or automatic detention of undocumented or inadequately documented asylum seekers is often arbitrary and contravenes Article 9(1) of the International Covenant on Civil and Political Rights (ICCPR). It is a basic principle of international law that asylum seekers must be treated on the assumption that they may be refugees until their status has been determined. Mandatory detention of asylum seekers may also therefore contravene Article 31(1) of the 1951 Convention Relating to the Status of Refugees.

9. The paper makes reference to the need for a distinction to be made between asylum seekers and undocumented migrants and of the consequential risk of "exposing the former to such control measures as automatic detention for indeterminate periods." (paragraph 3). In addition, the "need for national legislation and administrative practice to distinguish between refugees/asylum seekers and other aliens" (paragraph 4) is noted. While we recognize that distinctions do need to be made between asylum seekers/refugees and other aliens, we would offer two words of caution. First, it must not be forgotten that aliens and undocumented migrants also have human rights, and in particular must not be subject to arbitrary or unlawful detention, including "automatic detention for indeterminate periods". Second, even in some contexts where a notional distinction is made, the characterization of some asylum seekers as "illegal immigrants" has been known to lead to summary or peremptory action being taken without an asylum seeker having proper recourse to appropriate procedures, in particular to review procedures.

10. On more than one occasion in the paper, reference is made to monitoring (e.g. paragraph 3) and to the lack of availability of relevant information on asylum policy, practice and statistics (e.g. paragraphs 21 and 26(l)). These observations are most welcome as there are a number of countries where it appears that lack of transparency regarding detention practices may even be a deliberate strategy to avoid scrutiny and accountability, especially related (but not limited) to detention of minors. In particular, we would urge member states of this Executive Committee to invite independent monitoring of detention practices and procedures.

11. In the context of deterrence, few could contradict the assertion that the detention of asylum seekers (whether administrative or criminal) has a punitive quality. This is clearly reflected in one study that was undertaken in 1998 in which comparisons were made between rates of bail granted to the criminally accused and rates of ‘bail’ for undocumented asylum seekers subject to mandatory detention. Even for an offence as serious as homicide, in the study undertaken it was shown that a person so charged was almost 23 times more likely to be released pending trial than an asylum seeker whose only "offence" was to have sought to enter undocumented and seek asylum in that country.

12. Quite apart from the human cost of detention, we note that in some states vast resources are channelled towards detaining asylum seekers, far beyond the alleged "ill" detention is designed to address.

13. It is clear that arbitrary and unlawful detention are prohibited by international law. Mechanisms and explanations which are said to ‘justify’ detention as a matter of public policy do not overcome these proscriptions. We therefore welcome in particular the discussion in paragraph 10 of the paper which recognizes that detention may be arbitrary "if the law itself allows for arbitrary practices, or is enforced in an arbitrary way." It would be pernicious for any state to suggest that a national law which permits or endorses detention which would be arbitrary or unlawful as a matter of international law is authorized or indeed ‘justified’.

14. As detention of asylum seekers has gained currency and become increasingly institutionalized, indirect effects of the practice have begun to emerge. This is most clearly reflected in practices that have developed in airport transit zones and remotely located detention centres or prisons. The effect has been to deprive people of information about their rights which are vital to advancing a claim for asylum. It is also the element of detention most likely to expose states to the risk of violating the most fundamental prohibition under the Refugees Convention, that of refoulement.

15. The paper and the revised guidelines raise concerns about disproportionate or indefinite detention which deserve clarification. We would strongly urge that any detention (or continued detention) which cannot be justified is ipso facto disproportionate. This needs to be made clear. In addition, detention (however short it turns out to be) should never be indefinite. It should always be time limited and an upper limit should also be prescribed.

16. As both the paper and the revised guidelines usefully reaffirm, not only is it essential that review procedures be available, but so too must review procedures be independent (see paragraph 5 and Guideline 5 of the revised guidelines and paragraphs 16 and 26(d) of the paper). It is essential that such review rights are legally enshrined and protected and that review be timely. The grant of a discretion to release to local or other officials (in particular the exercise of a non-reviewable or non-enforceable discretion) should never be seen as a substitute for this as it squarely raises questions of arbitrariness.

17. Conditions of detention remain of grave concern in a number of States. Sub-standard conditions are wide-ranging in their nature. The paper makes reference to a number of key areas of concern regarding conditions of detention (paragraphs 18-20), including co-mingling in penal institutions and detention in international transit zones. Many concerns about conditions relate to the physical environment in which asylum seekers are detained. It must be emphasized, however, that conditions (including in some cases incommunicado or incommunicado-like detention) may primarily have a profound psychological and indeed traumatic impact on detainees.

18. We welcome the concerns expressed by UNHCR regarding the ill-effects of detention on the well-being of children, including their education and psychological development (see paragraph 21-22). Despite this, however, we would note that even where some countries make provision for the release of children, procedures (or lack of them) can be highly obstructive in giving meaningful effect to release provisions. We note also, with concern, that the appointment of a legal guardian or adviser to an unaccompanied minor may expose a conflict of interest where the detaining authority is also responsible for legal guardianship.

19. Having noted above that it is a basic principle of international law that asylum seekers must be treated on the assumption that they may be refugees until their status has been determined, we recognize also that there are recognized refugees who may be subject to detention. We urge all States to cooperate with UNHCR in finding solutions for recognized refugees who are subject to detention.

20. As long as the starting point is recognition of the prohibition at international law against arbitrary and unlawful detention and that there should be a presumption against detention, alternatives to detention can and must be found. However, where detention cannot be justified on any of the prescribed grounds (see, for example, Guideline 3), release must follow and ought not to be subject to such ‘alternative’ restrictions as the provision of bail (see the concerns expressed by UNHCR at paragraph 17).

21. Some states offer no alternatives. Others offer alternatives which are discretionary or ineffective in many instances. Several states, however, have been able to find workable alternatives to detention which do not compromise the principle of national sovereignty.

22. We are aware of some states that have purported to consider alternatives and have indicated that they are, in general terms, not satisfied that there are any alternatives to detention. This is clearly arbitrary and cannot be cited as a justification for failure to take meaningful steps to identify workable alternatives to detention. We would, in this regard, strongly urge UNHCR to work with States actively to identify and explore alternative ways of giving expression to the principle of sovereignty which do not compromise fundamental human rights principles.

23. While we welcome the spirit in which the recommended practices set out at paragraph 26 of the paper were meant, we are concerned that they should be consistent with and make express reference to international legal standards and principles. From this perspective, there is a risk that these recommendations may splinter interpretations rather than serve the intended function of establishing clearly defined standards in relation to detention of asylum seekers. In addition, the presumption against detention of any individual must be clearly spelled out.

24. While some of the recommendations are most welcome, we would suggest that others require greater clarity or do not go far enough in giving expression to applicable international legal standards and principles. For example, it must be clear that detention may only be resorted to if it can be justified in a manner which is referable to the individual (see paras 26(a) and (b)). Timeliness is also a crucial element of many aspects of a detention regime. For example, provision of reasons for detention and a written explanation of rights and how to access them (which must include the right to access to counsel), as well as periodic and independent review procedures must always be timely (see paras 26(c) and (d)). In addition, reasons for detention should explain why alternative or non-custodial measures were not possible in the individual case (see para 26(e)). Detention should always be time limited (see para 26(h)). Decisions to deny access to places of detention by UNHCR, relatives, legal representatives or other professional or religious visitors should be subject to clear and independent review procedures (paras 26(g) and (j)).

25. Arbitrary and unlawful detention are prohibited by international law. Many states nonetheless detain asylum seekers in this way, and sometimes in appalling conditions. The irony is cruel indeed that it is sometimes the most developed states that have the most ‘sophisticated’ policies and practices which appear to violate the human rights of this marginalized group. UNHCR has cited alternatives. The Working Group on Arbitrary Detention is exploring alternatives. Some states have found alternatives. There are alternatives and we urge states to commit not only to the international standards as set out in the Refugees Convention, UDHR, ICCPR and others (e.g. CRC) but also actively and in good faith to find ways of addressing their concerns about the sovereign right to control who shall enter and remain in a territory with due regard being given to fundamental human rights.