Immigration detention is the deprivation of liberty for migration-related reasons. In most countries, immigration authorities have the power to hold non-citizens on grounds relating to a person’s migration situation. This is an administrative or civil power that operates separately to the powers given to the police and criminal courts. In contrast, criminal incarceration is the deprivation of liberty of a citizen or non-citizen due to criminal charges or convictions.
Article 4 of the Optional Protocol to the Convention against Torture defines deprivation of liberty as “any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.”
Immigration detention can occur at different times. It can occur when migration authorities first come in to contact with a person and they are unable to establish their identity or valid migration status. This first contact may occur at a border point, such as in an airport or sea port, or it may occur when authorities conduct a raid or otherwise come across a person in the community who does not have the necessary documentation. Some governments detain a person in these situations while their identity is verified or while the nature of their claims to enter or remain in the country are established.
Some authorities continue to detain a person for the entire time it takes to process their migration application. This can include detaining person during an ‘expedited’ or ‘fast track’ process, or it may extend for the entire time it takes to process substantive claims (such as for refugee protection).
Finally, detention is sometimes used by migration authorities if all claims to remain the country have been refused and the person is being deported. In Europe, this includes the detention of people being forcibly returned to another country in Europe due to a pre-existing asylum application in that country (known as ‘Dublin returnees’).
Under international law, immigration detention is only meant to be used as a last resort and where it is necessary, reasonable, and proportionate to a legitimate government objective.
Legitimate government objectives may be:
- When someone presents a risk of absconding from future legal proceedings or administrative processes
- When someone presents a danger to their own or public security.
And in all cases, immigration detention is only to be used after non-custodial, community-based alternatives to detention (ATD) have been explored in each individual case.
Unfortunately, the use of unnecessary immigration detention is growing and endemic to the management of complex mixed migration. Globally, millions of refugees, asylum-seekers and migrants are at risk of immigration detention each year.
Refugees, asylum-seekers and migrants are often subjected to arbitrary or unlawful detention and may be detained for months or years in overcrowded and unhygienic conditions falling below international standards
Immigration detention is often characterised by little or no independent oversight, and in many countries, immigration detention is among the most opaque areas of public administration.
Many human rights violations occur in these circumstances and the physical and psychological impacts of even very limited immigration detention are well documented. Women and children are especially vulnerable to violence and abuse in places of immigration detention, and studies have shown that even short periods of immigration detention can have life-long physical and mental health impacts.
Thousands of people are held in administrative detention centres and closed camps around the world with:
- Conditions falling below international human rights standards
- Restrictions on access to asylum for people who need protection from serious human rights abuses, and
- Serious protection problems for refugees within closed refugee camps.
In compliance with international and regional human rights standards, detention should only occur in circumstances where alternatives have been assessed as not sufficient, only as a last resort and for the shortest possible period.
Most governments detain refugees, asylum seekers and migrants in some or more of the following situations:
- upon entry to the country;
- pending a final decision in their applications for asylum or other requests to remain in the country;
- pending their final removal when they are no longer permitted to remain in the country.
Under international law:
- governments have the right to protect their national sovereignty
- enshrined in international laws, people have the right to seek and enjoy asylum
- international laws protect migrants, refugees and asylum -seekers against arbitrary and unlawful detention.
- Men, women and children, the elderly and people with disabilities are held against their will in removal centres, immigration detention centres, jails, prisons, police stations, airports, hotels, ships and containers pending a final decision in their cases or removal from the country.
- Although many have never committed a crime, they are often detained with criminals…
- Once a decision has been made, it may take months or years to effect, while people wait in overcrowded and unhygienic conditions.
Several governments around the world host large refugee populations and often place significant limits on movement of the resident refugees. For example, often refugees must obtain a permit to leave a camp; they can only travel a certain distance and for a certain time outside of the camp; and, if they fail to comply with the terms of the permit, they risk arrest and imprisonment, sometimes for years. They may be required to live in these camps without the right to move for years. In fact, some children and grandchildren are born in these camps without ever having the right to leave them.
It is almost impossible to say, as most governments do not provide easily accessible, public information on the number of migration-related detainees. The United Kingdom, Australia and the United States do maintain public statistics. For example, the United States detained over 420,000 non-US citizens for migration related reasons in 2014 and on any given day, there are over 33,000 people in US immigration detention centres, jails and prisons pending a final decision in their immigration/asylum cases, including preparations for removal.
Conditions of detention in most countries fall below international human rights standards:
- Administrative detainees around the world often receive less protection, both relating to the procedures governing their detention and the conditions of detention, than persons pending criminal trial or those who have been convicted of a crime.
- Access to legal counsel is sporadic or non-existent in many places.
- Administrative detainees often do not receive information in a language nor in a manner that they can understand on the reasons for their detention and their rights while detained.
- Most detainees are kept in overcrowded, unhygienic conditions, sometimes with convicted criminals.
- In many countries, children are detained without being provided an opportunity to go to school.
- Men and women are sometimes held in the same facilities while, conversely, families may be split and held in separate facilities.
The conditions in most closed refugee camps are of serious concern. Being held in a closed refugee camp means that the refugees living there are unable to be self-sufficient. They are totally dependent on supplies provided by the international community, which are frequently subject to shortages and cuts. A quote from a Burundian refugee couple in Tanzania sums up the situation:
“They expect us to eat boiled beans and ugali (maize bread) every day, sometimes without even salt. Could you do that for 12 years? Things are becoming unbearable. The camp is insecure. Children die from malaria. And the rations go up and down, but we are the last to know. Maybe we must leave the camp, and go back to Burundi”.
Tanzanian law and policy prohibits refugees in these camps from working, undertaking any business activities or being more than 4 km away from the camps. It is essentially impossible for a refugee to abide by these laws. Not provided with enough food or with firewood to cook their rations, they must risk arrest, police abuse, assault and even rape as punishment for simply leaving the camps to earn money to buy food, or to collect firewood.
Refugees, forced to flee from countries where they initially sought safety, are often jailed, sometimes indefinitely, in the new country of “refuge” for so-called “irregular secondary movement”.
The length of time varies among countries, with one of the shortest periods in France (32 days) to unlimited periods of time under certain circumstances in countries such as the United States, the United Kingdom, Australia and Zambia.
There are many cases worldwide where persons have been administratively detained for years. For example, in Australia, a Kashmiri national whose asylum claim was rejected was held in administrative detention for seven years. He was considered to be stateless because no country would accept him as their national. In August 2004, the High Court of Australia ruled that under Australia’s mandatory detention legislation it is permissible to detain such a person for the rest of his or her life. Indefinite detention of asylum seekers is permitted in the United States and it is not unusual for them to be detained for two or more years pending a final decision in their cases.
Many refugees have been living in closed camps for extended periods. Today, there are at least 33 so-called “protracted refugee situations” involving groups of 25,000 people or more who have been in exile for over five years. According to UNHCR data, they account for 5.7 million of the world’s 9.2 million refugees. Those figures do not include the world’s oldest and largest protracted refugee situation, Palestinian refugees, and many others who fall outside the UNHCR mandate. Many refugees have lived their whole lives in closed camps.
Refugee Rights advocates around the world fear that measures which governments have taken to restrict access to asylum, including the increase in the use of detention – especially after September 11, 2001 – have been a principal reason for the decrease in the number of requests for refugee status. Since 2001, the number of asylum applications in industrialized countries has dropped by 40%. We fear that this means that there are many people who need protection from serious human rights abuses who are unable to gain access to it or who become undocumented migrants in countries of potential asylum thereby surviving without protection and access to basic services. Also, detention makes it more difficult for asylum seekers to have access to information to prepare their cases properly and to consult with lawyers.
Many refugees face serious protection problems within closed refugee camps. They may have fled persecution in their country of origin and then be forced into living in danger of ongoing persecution (sometimes by other groups or individuals from their country of origin) inside a refugee camp. These protection problems often lead refugees to flee for a second time – and to risk of arrest and imprisonment in the next country to which they flee, as so-called “irregular secondary movers”. Worse, poor conditions may force many to return to their home countries before it is safe to do so. This constitutes constructive refoulment, i.e., indirectly, but effectively, forcing refugees back to their persecutors.
Under international law governments do have the right to protect their national sovereignty. But also, enshrined in international law is the right to seek and enjoy asylum. And international laws protect against arbitrary and unlawful detention.
Governments do have a right to detain non-citizens for migration related reasons in certain limited circumstances (for initial identification and for legitimate removal purposes), but only if the detention complies with international and regional human rights standards relating to restriction of movement.
Refugees, asylum seekers and migrants cannot be subject to arbitrary detention. Mandatory detention of all persons arriving at a country’s borders – as is practiced, for example, in Malta and in the Canary Islands in Spain – can be considered to be arbitrary and violates international law standards. While there is no definition of “arbitrary detention” in international law, the United Nations Working Group on Arbitrary Detention (WGAD) has defined it as detention which is contrary to the human rights provisions of the major international human rights instruments. Arbitrary detention occurs where there is no legal basis for the deprivation of liberty or where a person is deprived of their liberty because they have exercised rights and freedoms guaranteed in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Where countries automatically detain all persons – regardless of their status as asylum seekers or economic migrants – they can be considered to be practicing arbitrary detention in violation of international law. States cannot detain persons simply because they are seeking asylum. For example, countries such as Malta or Spain – in the case of the Canary Islands – automatically detain all persons arriving on their shores regardless of whether they are fleeing persecution or looking for work. Malta and Spain have been criticized for their practice of mandatory detention of all arrivals.
The Geneva Convention relating to the Status of Refugees (art. 31) prohibits governments from penalizing refugees and asylum seekers for their illegal entry into a country. We believe that detention is being used as a form of penalization. Many persons fleeing persecution have no choice other than to cross borders without authorization in order to flee human rights abuses and save their lives. The Geneva Convention recognizes this.
The Geneva Convention (art. 26) also states that “each Contracting state shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.”
In financial terms, immigration detention is very expensive. Alternatives to detention are much more cost-effective.
Under an alternative scheme, refugees could be self-sufficient and contribute to the economy of their host country. In closed camps, this is impossible.
Further, refugees who have been de-skilled by effective “warehousing” policies lose their economic capacity at great expense to their current and future human potential. This cost is borne by the country of asylum if they are unable to return to their country of origin or to be resettled in a third country. Years of enforced idleness also undermine their ability to successfully re-integrate in their home countries, should conditions improve, or to integrate in countries of resettlement.
The International Coalition on Detention of Refugees, Asylum Seekers and Migrants is a recently formed coalition of over 200 non-governmental groups and individuals working around the world providing legal, social and other services, carrying out research and reporting, and doing advocacy and policy work on behalf of refugees, migrants, and asylum seekers. Members of the Coalition come together to network and share information on detention in their countries and to promote greater respect for the human rights of detainees.
The International Detention Coalition believes that detention of refugees, asylum seekers and migrants should be avoided. Alternatives such as supervised release, regular reporting requirements or posting bail, should be considered and pursued before detention.
A person should only be deprived of his/her liberty if this is in accordance with a procedure prescribed by law and if after a careful examination of the necessity and proportionality of deprivation of liberty in each individual case, the authorities have concluded that resorting to non-custodial measures (alternatives to detention) would not be sufficient.
Where detention is considered to be absolutely necessary and authorized under international, regional and national standards, governments should ensure that it is used only for initial identification of persons or for legitimate removal purposes and only as a last resort.
Any decision to detain must be subject to regular judicial review and the time period must be reasonable.
Refugees, asylum seekers and migrants must not be subject to indefinite detention.
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. Click here to see the IDC’s position on the detention of children
Conditions of detention must comply with human rights standards, and there must be regular independent monitoring of places of detention. The Coalition urges states to ratify the Optional Protocol to the UN Convention against Torture (OPCAT), which provides a strong legal base for a regular and independent monitoring of places of detention.
Certain groups – such as pregnant or breast-feeding women, children, survivors of torture and trauma, elderly persons or people with a disability – should not be placed in detention.
Governments that host refugees in closed refugee camps should move from policies of encampment towards policies that allow refugees to become self-reliant. Industrialised countries should provide additional humanitarian and development assistance for refugee-hosting areas in developing countries, encouraging host governments to permit more freedom of movement for refugees.
Consistent with the coalition’s position on detention, the specific aims of the coalition are:
- to prevent and/or limit the use of detention of asylum seekers, refugees and migrants;
- to advocate for alternatives to detention, and for the use of the least restrictive forms of detention;
- to promote greater protection of and respect for the human rights of those held in detention; and,
- to promote the development and adoption of best practices in the use of detention.