IDC’s position on the detention of refugees, asylum seekers and migrants

This brief outlines a summary of the International Detention Coalition’s position on the detention of refugees, asylum seekers and migrants, based on identified international law, standards and guidelines.

1. There should be a presumption against the detention of refugees, asylum seekers and migrants, as it is inherently undesirable.

2. Vulnerable individuals – including refugees, children, pregnant women, nursing mothers, survivors of torture and trauma, trafficking victims, stateless persons, elderly persons, the disabled or those with physical or mental health needs – should not be placed in detention.

3. Children should not be detained for migration-related purposes. Their best interests must be protected in accordance with the Convention on the Rights of the Child. Children should not be separated from their caregivers and if they are unaccompanied, care arrangements must be made.

4. Asylum seekers should not be detained or penalized because they were compelled to enter a country irregularly or without proper documentation. They must not be detained with criminals and must have the opportunity to seek asylum and to access asylum procedures.

5. Detention should only be used as a measure of last resort. When used it must be necessary and proportionate to the objective of identity and security checks, prevention of absconding or compliance with an expulsion order.

6. Where a person is subject to detention, alternatives must first be pursued. Governments should implement alternatives to detention that ensure the protection of the rights, dignity and wellbeing of individuals.

7. No one should be subject to indefinite detention. Detention should be for the shortest possible time with defined limits on the length of detention, which are strictly adhered to.

8. No one should be subject to arbitrary detention. Decisions to detain must be exercised in accordance with fair policy and procedures and subject to regular independent judicial review. Detainees must have the right to challenge the lawfulness of their detention, which must include the right to legal counsel and the power of the court to release the detained individual.

9. Conditions of detention must comply with basic minimum human rights standards. There must be regular independent monitoring of places of detention to ensure these standards are met. States should ratify the Optional Protocol to the Convention against Torture, which provides a strong legal basis for a regular and independent monitoring of places of detention.

10. The confinement of refugees in closed camps constitutes detention. Governments should consider alternatives that allow refugees freedom of movement.

Read more about the hard and soft law related to immigration detention in the guide: Legal framework and standards relating to the detention of refugees, asylum seekers and migrants, Melbourne: The International Detention Coalition, 2011.

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