More evidence is urgently needed about the use of alternatives to detention in the Americas. Successful Programs in El Salvador, Guatemala, Honduras, Peru, Mexico and Trinidad & Tobago reveal a growing trend.
In the past few decades Latin America has seen unprecedented levels of forced migration.
Image from IDC Report: "What do we expect for the future?"
The IDC defines an alternatives to detention as any law, policy or practice by which persons are not detained for reasons relating to their migration status; they have been shown to be more affordable, effective and humane than immigration detention, which continues to be widely used in the Americas region.
Here, we share some recent developments in the region of alternatives to detention, or initiatives that share elements in common with successful alternatives.
Mexico
Mexico is a transit country for people migrating to the United States, and has also become an important destination country for many fleeing violence in Central America and elsewhere. In recent years, migration routes through Mexico have become more dangerous due to a rise restrictive policies that put people at greater risk, pushing them into the hands of criminal organizations, human smugglers, and drug traffickers. A network of humanitarian aid organisations have emerged to operate numerous shelters, providing an alternative to immigration detention described as an ‘oasis’ along the dangerous migration routes in Mexico. La 72 is one such shelter operating in the region. La 72 is supported by Doctors without Borders, Asylum Access, the Red Cross, the UNHCR and various Mexican NGOs, and provides legal counsel and representation for those seeking asylum. There are now over 85 organisations like La 72 offering food, shelter, safety, and a ‘humanitarian space’ where migrants can feel dignified and supported. The shelters serve as alterantives to detention, ensuring the right to freedom of movement.
La 72 Shelter in Mexico Source: FMR
El Salvador, Guatemala and Honduras
The Youth Outreach Centre model operating in El Salvador, Guatemala and Honduras represents an inspired example of a community-based approach to violence prevention. Young people in the region are increasingly forced to choose between the lack of opportunities and the threat of gang activity in their neighborhood, and being forced to leave their home country to seek safety and a better life. The model is a joint venture by civil society, national governments and the private sector; there are currently over 160 Centres in operation throughout the countries’ highest-risk communities. Young people between the ages of 9 and 29 can attend local Centres and participate in engaging programs like English classes, computer training, life skills support, tutoring sessions, job training and volunteer opportunities. Results of an assessment published in the Forced Migration Review found the program particularly successful at building trust and relationships, which is also a key component of effective alternatives to detention. Programs like the Youth Outreach Centre model that encourage engagement with the community – as opposed to ineffective enforcement policies – can help to inform development and implementation of alternatives to immigration detention, with a focus on support and participation rather than restriction.
Peru
An erosion of Venezuela’s socio-political stability coupled with a rise in State repression – and further exacerbated by shortages of food and medicine – has left Venezuelans seeking safety and security in neighbouring countries. Peru’s introduction of a new work and study permit for Venezuelan asylum seekers has been hailed by the Inter-American Commission on Human Rights as ‘an example for the region of how States can protect migrants who are in a vulnerable situation by regularising migration’. The Permiso Temporal de Permanencia (PTP) is a work and study permit provided exclusively to Venezuelan citizens for a period of one year, with the possibility of renewal. Over 10,000 Venezuelans have been approved for the new program, assuring them freedom of movement, personal liberty and self-reliance. While it is important that Peru continue to assess Venezuelan asylum-seeker claims and apply formal protection instruments under the Cartagena Declaration, the PTP represents a successful and positive alternative to detention.
Trinidad and Tobago
Trinidad and Tobago has seen increasing numbers of migrants in the past decade, with the number of refugees and asylum seekers in the Caribbean region rising by 50% between 2015 and 2016. The Island State is both a transit and destination point for migrants, who come from regional and extra-regional countries including Cuba, Venezuela, Syria, Bangladesh, Jamaica, Colombia and Nigeria. Like many of the small Caribbean nations, Trinidad and Tobago had no legislation covering refugee protection; however, it acceded to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol in November 2000, and has developed a refugee policy embracing alternatives to detention. The policy gives refugees the right to work, freedom of movement, medical care, educational opportunities, counselling for trauma, family reunification and protection from refoulement or detention so long as they comply with the country’s laws. While there is some concern that not all of the rights conferred by the nation’s refugee policy are necessarily available to all asylum seekers and migrants (notably the right to work), it is an important commitment to limit use of unnecessary immigration detention and expand alternatives.
The IDC’s research reveals several benefits in restricting the application of detention and prioritising community-based options. Among other advantages, alternatives cost less than detention, respect and fulfill human rights, increase voluntary departure rates and improve integration outcomes for approved cases. Examples of successful alternatives in the Latin American and Caribbean demonstrate that even smaller nations with mixed migratory movements can realise the significant benefits of adopting community and engagement-focused policies that avoid unnecessary, costly detention practices.
This article was authored by Paul Michaels as part of his Communications Internship with IDC
The UN Committee on the Rights of Migrant Workers has published findings on Mexico and Ecuador as two of the countries examined during its latest session from 4 to 13 September.
The Committee expresses concern over the use of arbitrary detention in both countries, reiterating the need for the right to liberty of all migrant workers and members of their families to be respected.
The Committee is deeply concerned at the high number of custodial measures applied to migrants in the 58 migrant holding centres around the country.
It is concerned at the delegation’s claims that such detention (called “securing” or “presentation”) does not amount to deprivation of liberty, or that it may be described as a protective measure or a benefit.
It is also concerned at the presence in holding centres of families, pregnant women, trafficking victims, asylum seekers and other persons in situations of increased vulnerability and in need of special protection.
Likewise, it notes with particular concern the detention of children and adolescents, many of them unaccompanied or very young, whose numbers increased by 900 per cent between 2011 and 2016.
This measure constitutes without exception a violation of the rights of the child and the child’s best interests.
The concluding observations of Ecuador call for a comprehensive investigation to be held into arbitrary detention, raising concerns about the use of immigration detention at airports, among other sites (paragraphs 22 and 23). It also raises concerns about the ability of children to access children and adolescents seeking asylum, see paragraph 40:
[The Committee] is concerned by the fact, however, that article 129, paragraph 2, of the Organic Act on Human Mobility prohibits the entry of unaccompanied children who do not have the permission of their parents or legal guardians
On July 13 and 14, 2017, stakeholders from the government, civil society and international organisations working in Mexico came together to evaluate and share experiences on the implementation of alternatives to detention (ATD) in the country. A National Roundtable on Case Management was held on day one, where participants reflected specifically on the first ATD pilot programs that were implemented in 2015 and 2016 in Mexico City, Tabasco and Chiapas. The diverse actors involved in the development and implementation of these programs discussed how learnings from these first initiatives provided the foundation for current ATD action plans: From the first pilot for just 20 unaccompanied children in Mexico City, to the more than 1,200 asylum seekers that have been released from detention centers between July 2016 and June 2017.
Representatives from the National Migration Institute (INM), Mexican Refugee Commission (COMAR) and the Federal Office for Child Protection (PFPNNA) shared their experiences in coordinating and collaborating on ATD, highlighting as primary benefits of alternatives the ability to support especially vulnerable asylum seekers outside of detention, compliance with legal obligations to not detain children, and that people could be granted documents with temporary immigration status.
All stakeholders participated in working group discussions on identification and decision-making, placement options and case management -all essential processes to ensure the effectiveness of ATD. Stakeholders identified challenges, positive practices and opportunities to strengthen each process.
The following day, additional actors who are currently implementing ATD, both formally and informally, joined the discussions, as part of the National Exchange on ATD Implementing Experiences. Representatives from more than 20 civil society and international organizations that are developing and implementing ATD across the country participated. They identified the primary challenges in their ATD implementation and discussed possible solutions, such as continuing to reflect on experiences as a group and share ATD models, protocols, and manuals in order to better learn from one another.
The national meetings were collaboratively organized by Asylum Access México, Aldeas Infantiles SOS, the Institute for Women in Migration (IMUMI), Sin Fronteras I.A.P. and the IDC. These organizations, alongside other partners, have promoted ATD in Mexico in order to highlight the benefits of having people live freely in the community while their migration situation is resolved or while they await return or removal from the country.
International Implementers of Alternatives to Detention Meeting, August 2017, Mexico City
Practitioners from around the world attended a 2-day workshop in Mexico City to share insights into successful implementation of alternatives to detention.
20 civil society actors and partners actively developing and implementing alternatives attended the workshop, including:
During the workshop, participants discussed screening and referral processes, case management and the importance of building engagement rather than having an enforcement approach.
There is a growing interest from both government and civil society stakeholders in exploring more reliable, cost-effective alternatives to detention in order to address the human rights and humanitarian concerns and resource constraints associated with detention.
This workshop provided an opportunity to explore how alternatives operate in a variety of local contexts and translate international human rights standards to concrete implementation.
A report will be available shortly detailing insights from the workshop.
If you would like to know more about alternatives to detention, use our free online learning course available here.
CMW-CRC Joint General Comment on the Human Rights of Children in the Context of International Migration
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) and the Committee on the Rights of the Child (CRC) have started to elaborate a Joint General Comment (JGC) on the human rights of children in the context of international migration.
The joint general comment will seek to provide guidance to States parties to both Conventions on the situation of children in the context of international migration, including:
Children that migrate with their parents who are migrant workers;
Children that are born to parents who are migrant workers in transit and destination countries;
Migrant children that return to their country of origin, either voluntarily or by force, alone or with their parents;
Children left behind by their parents (or one of them) who have migrated to another country; and
Children that migrate unaccompanied and separated from their parents (for reasons such as seeking employment, family reunification or as victims of trafficking, labour exploitation and child labour).
Following a call for submissions and the establishment of a zero draft, the Committees have decided to hold consultations to ensure that the perspectives of States, United Nations agencies and entities, civil society organizations and other stakeholders with respect to this issue are raised, discussed and reflected in the draft for further consideration by both Committees.
If you are interested in contributing to this Joint General Comment on the Human Rights of Children in the Context of International Migration and would like further information, please contact IDC Advocacy Coordinator Ben Lewis at [email protected].
“What do we hope for the future?” was the central question for the recent panel discussion that took place in the Latin American Social Sciences Institute (FLACSO) in Quito, Ecuador, on the 20th of April, 2017. This event followed the release of a report by the same name, which presents information on current policy and practice related to immigration detention and alternatives to detention (ATD) in 21 countries in the Americas region.
“We have to go back to basics: detention must be used only as a last resort”, stated Álvaro Botero, representative of the Interamerican Commission on Human Rights (IACHR).
Botero praised the report as the most exhaustive analysis available on immigration detention and ATD in the Americas. Based on information presented before the IACHR at a thematic hearing in October of 2014, the report identifies the main patterns of human rights violations related to the use of immigration detention, and also highlights key policy and practice that represent positive components of alternatives to detention.
“Less talking, more action. It’s not enough to simply adopt instruments [to protect human rights], they must be respected” stated Ernesto Pazmiño Granizo, Public Defender (Ombudsman) of Ecuador.
The Public Defender acknowledged the recent steps taken by the Ecuadorian government to guarantee the right to personal liberty in the migration context. These steps include the closing of Hotel Carrión, which was being used for immigration detention purposes, and the prohibition of detention included in the new Human Mobility Law. However, he also showed concern for the elimination of judicial review of detention decisions, and detention carried out in airports.
Fortunately, States have a gamut of mechanisms and resources available to avoid unnecessary or arbitrary use of immigration detention.
“Measures for avoiding detention have been found in each country included in this study,” highlighted Elba Coria, principal author of the report and current director of the Alaíde Foppa Legal Clinic at the Universidad Iberoamericana in Mexico.
ATD are defined as legislation, policy or practice, formal or informal, that ensures people are not detained for reasons relating to their migration status.The report includes a series of recommendations to States for eliminating the use of immigration detention, and instead adopting alternatives that guarantee the right to personal liberty and freedom of movement.
We thank everyone that participated in the panel, and are grateful to FLACSO Ecuador, and Asylum Access América Latina for co-organising the event, and Carmen Gómez, Research Professor of FLACSO Ecuador for moderating the panel discussion.
“What do we hope for the future?” was the central question for the recent panel discussion that took place in the Latin American Social Sciences Institute (FLACSO) in Quito, Ecuador, on the 20th of April, 2017. This event followed the release of a report by the same name, which presents information on current policy and practice related to immigration detention and alternatives to detention (ATD) in 21 countries in the Americas region.
“We have to go back to basics: detention must be used only as a last resort”, stated Álvaro Botero, representative of the Interamerican Commission on Human Rights (IACHR).
Botero praised the report as the most exhaustive analysis available on immigration detention and ATD in the Americas. Based on information presented before the IACHR at a thematic hearing in October of 2014, the report identifies the main patterns of human rights violations related to the use of immigration detention, and also highlights key policy and practice that represent positive components of alternatives to detention.
“Less talking, more action. It’s not enough to simply adopt instruments [to protect human rights], they must be respected” stated Ernesto Pazmiño Granizo, Public Defender (Ombudsman) of Ecuador.
The Public Defender acknowledged the recent steps taken by the Ecuadorian government to guarantee the right to personal liberty in the migration context. These steps include the closing of Hotel Carrión, which was being used for immigration detention purposes, and the prohibition of detention included in the new Human Mobility Law. However, he also showed concern for the elimination of judicial review of detention decisions, and detention carried out in airports.
Fortunately, States have a gamut of mechanisms and resources available to avoid unnecessary or arbitrary use of immigration detention.
“Measures for avoiding detention have been found in each country included in this study,” highlighted Elba Coria, principal author of the report and current director of the Alaíde Foppa Legal Clinic at the Universidad Iberoamericana in Mexico.
ATD are defined as legislation, policy or practice, formal or informal, that ensures people are not detained for reasons relating to their migration status.The report includes a series of recommendations to States for eliminating the use of immigration detention, and instead adopting alternatives that guarantee the right to personal liberty and freedom of movement.
We thank everyone that participated in the panel, and are grateful to FLACSO Ecuador, and Asylum Access América Latina for co-organising the event, and Carmen Gómez, Research Professor of FLACSO Ecuador for moderating the panel discussion.
Our annual member meeting will be held at the International Conference Centre in Geneva on June 16 from 4.30 - 6.30 pm.
The meeting provides an excellent opportunity for members to share information and insight across the network. We will discuss four thematic areas which will help shape the work of the IDC in the year ahead.
This years meeting will be in the same building - and directly after - the annual UNHCR NGO Consultations.
All Members of the IDC are encouraged to fill out the short survey, available at the button below, by June 1 to inform the planing session.
Responses from the survey will be shared among IDC Members.
For those members who are unable to attend in person, a livestream of the member meeting will be available.
Hearing before the Inter-American Commission on Human Rights (IACHR) on Decree 70/2017, March 2017. Photo: Daniel Cima/IACHR
For over 10 years, Argentina's immigration law (25.871) has been upheld as a positive example both regionally and internationally as legislation that guarantees respect for human rights in the migration context, including protection of the right to personally liberty. The law, which was passed in 2003, regulates use of immigration detention, mandating that it be implemented only as a last resort in exceptional cases where removal from the country is pending, and always requiring judicial review. Key to its success, civil society participated in development of the law, which was passed unanimously in both houses of Congress.
However, on January 30, 2017, Argentina's president Maruicio Macri announced an urgent decree (Decreto de Necesidad y Urgencia 70/2017) that modifies the country's current immigration law, replacing it with a more restrictive migration policy that represents a concerning step backward in terms of international and regional human rights commitments. The decree was presented as a measure to address a supposed increase in criminal activities associated with migrants. However, numerous civil society organizations and other experts have deemed such statements to be based on inaccurate or false information, also highlighting that the current immigration law already includes measures to effectively address national security concerns.
This change comes as part of more restrictive migration policy and practice observed generally in Argentina, including increased operations to seek out and arrest irregular migrants, along with the creation of a new immigration detention center in 2016, the first in the country.
Increased immigration detention
Among other changes, Decree 70/2017 increases maximum time limits for immigration detention from 30 to 60 days and establishes indefinite detention for anyone who legally challenges a removal order. The decree allows for persons to be detained at the beginning of the immigration, even before a removal order is issued, and no longer considers family reunification as criteria for limiting unnecessary detention. The result is that immigration detention in Argentina is no longer the exception, as required by international human rights law.
Photo: Daniel Cima/IACHR
"In this Decree, deprivation of liberty is the rule" -Diego Morales, Centro de Estudios Legales y Sociales (CELS)
These new regulations also seriously limit access to justice and due process, allowing for a limited three days to challenge a removal order, and only three days more to appeal an initial decision on this order. Additionally, these measures are only available to those who are able to gain access to legal representation.
For persons in an irregular migration situation, the fear of being detained may prevent them from reporting crimes or access public health and education services, all of which negatively affect entire communities.
Civil society pushes back
Civil society representatives present at the hearing before the IACHR. Photo: Daniel Cima/IACHR
Civil society actors in Argentina have pushed back against this policy change. A group of migrant and human rights organizations, academics, labor unions and other experts have rejected the policy change, issuing press releases, meeting with parliamentarians and organizing demonstrations. The Argentinian Commission for Refugees and Migrants (CAREF), Center for Legal and Social Studies (CELS) and Diversity Collective (COPADI) have also issued legal challenges against the decree, which if successful would suspend its implementation.
The Inter-American Commission on Human Rights (IACHR) called a hearing at its own initiative (ex officio hearing) to examine the regulatory changes presented in Argentina. The hearing took place on March 20, 2017, and required authorities to explain the decree's incentives and effects. Civil society representatives participating in the hearing argued against the decree. The hearing may result in a specific recommendation to Argentina from the IACHR, although Commissioners have already described the decree as a step backward in human rights protection.
The decision lies in the hands of the legislative branch
Congress will soon have to discuss Decree 70/2017 and decide whether or not to approve it as a permanent law. If Congress does not annul the decree, the decision will not only represent a serious step backward in rights protection in Argentina, it will also set a dangerous precedent for the region regarding the unnecessary use of immigration detention, incompatible with international standards.
Immigration detention is never the answer; it is costly, inhumane and ineffective. There are many alternatives to detention, beginning with unconditional liberty, that are available to the Argentine government and which are proved to be more effective, humane and affordable.
We would like to thank Agostina Hernández Bologna, Lawyer and researcher of the Migration and Asylum Team at the Justice and Human Rights Institute, Universidad Nacional de Lanús (UNLa) for contributing to this article.
Since taking office, U.S. President Donald Trump has signed a number of Executive Orders related to border security, refugee and asylum admissions, and immigration enforcement. These Executive Orders have been denounced by human rights bodies, migration policy experts, migrant communities, and civil society alike. They will have significant, costly, and damaging implications for refugees, asylum seekers and undocumented migrants. The Orders are expected to drastically increase the use of immigration detention in the United States and globally in the following ways.
1. A commitment to mass detention as a border management strategy
The Trump Administration’s Executive Orders not only allow for detention, but also make it a national prerogative and shut the door to exploring effective alternatives that have fewer financial and human costs. This is an expansion of a policy that has long been practiced by the United States who is already the world’s largest detainer. As stated by DHS Secretary John Kelly, “The President has determined that the lawful detention of aliens . . . is the most efficient means by which to enforce the immigration laws at our borders.”
2. A presumption of detention for virtually all undocumented immigrants
The Trump administration’s expanded definition of persons who are a “priority” for immigration enforcement—and therefore subject to immigration detention—includes virtually every undocumented person in the United States today. This means that an estimated 11.1 million people are at risk of detention, many of whom have lived in the U.S. for most of their lives and have family members who are citizens. The elimination of discretion and priorities will lead to increased arbitrary or prolonged detention. Additionally, the Trump administration’s policies will target all new persons arriving to the U.S., regardless of vulnerability or protection needs. This includes asylum seekers, unaccompanied children and others in situations of particular vulnerability.
3. Funding and construction of additional immigration detention infrastructure
The United States already operates the world’s largest immigration detention system, but the Trump Executive Orders call for a massive expansion of even this existing immigration detention infrastructure in order to meet the new demand that will be caused by eliminating priories and discretion, and ramping up apprehension and deportation efforts. The White House has instructed the DHS Secretary to “allocate all legally available resources to immediately construct, operate, control, or establish. . . facilities to detain aliens at or near the land border with Mexico.” (EO13767, Sec. 5). Such expansion will be costly and harmful, and not deter future immigration to the extent desired.
4. Expanding the number of federal border guards to arrest and detain immigrants
The Trump administration seeks to hire an additional 5,000 Border Patrol Agents, who have the ability to return people immediately at the border or turn them over to ICE authorities to detain (EO13767, Sec. 8). Given Border Protection authorities have been criticized regarding allegations of mistreatment and neglect, this expansion of current practice raises concerns. The administration further seeks to hire an additional 10,000 federal “enforcement and removal” officers, who are tasked with arresting, detaining, and deporting undocumented immigrants (EO13768, Sec. 7). This expansion is also concerning given the history of abuse and even deaths within places of immigration detention.
5. Encouraging local and state police to act as immigration officials
Trump’s Executive Orders explicitly request the DHS Secretary to seek expanded partnership agreements with state and local police under the INA’s 287(g) Program—a so-called “force multiplier”—which provides the legal authority for state and local officers to perform the functions of immigration officials, including interrogation, arrest, and detention of undocumented immigrants. This will lead to an exponential increase in the number of immigration enforcement officials, and a subsequent rise in the number of arrests and detentions. Additionally, the 287(g) Program has a wide range of critics, from local law enforcement to mayors’ associations, due to its detrimental effects on community trust and safety. According to available data from the U.S. Department of Justice, in 2012 there were a total of 1,076,054 full-time federal, state, county, and local law enforcement officials, or approximately 3.43 law enforcement officials per 1,000 U.S. residents. Only 32 law enforcement agencies in 16 states are currently participating in the 287(g) Program, many opting out of the Program so as not to harm their communities; but this could soon change.
6. Mandatory detention of asylum seekers
The Trump administration is also taking steps to ensure that asylum seekers remain in detention throughout the duration of their asylum procedure, leading to a de facto mandatory detention policy and blocking access to asylum for many in need of safety. The Executive Orders instruct the DHS Secretary to immediately assign asylum officers to immigration detention facilities for the purpose of conducting refugee status determination within the places of detention, and the Attorney General is similarly instructed to assign immigration judges to detention centers to conduct immigration hearings. As asylum courts continue to be backlogged, this could mean the prolonged detention of thousands of asylum seekers.
7. Ending parole and other opportunities for alternatives to detention
The Trump administration’s commitment to detention means that opportunities for alternatives to detention will also significantly narrow. For example, the Executive Orders specifically terminate the long-standing practice of “parole”, whereby persons are routinely released in the United States shortly after their apprehension for irregular entry, until such time as an immigration court date can be set. Successfulalternatives to detention exist. Community-based alternatives operated by nonprofit organizations provide support services and effectively ensure compliance with immigration court proceedings. But given the focus on detention, such opportunities are limited to an exceptional, case-by-case basis, and only when related to exigent circumstances such as medical emergencies. The Orders also threaten civil fines and penalties for anyone “facilitating” the presence of undocumented immigrants in the U.S. This could theoretically put at risk NGOs and faith-based organizations that are providing critical, life saving services to undocumented immigrants, including a number of informal alternatives to immigration detention, such as shelters. Such penalties will reduce the availability of services that encourage appearance and compliance with court orders and vulnerable populations will be driven further underground and immigration control and public safety will be further jeopardized.
8.Falsely linking irregular immigration to terrorism and national security
There is no statistical correlation between irregular migration and terrorism or higher rates of crime. Yet, the Trump administration continues to present immigration through the lens of national security, reinforcing the view that immigration detention keeps communities safe. However, evidence shows that alternatives to detention are safe, effective, and less costly while still upholding the rights, dignity and wellbeing of immigrants themselves. The existing U.S. Risk Classification Assessment tool provides authorities with the information required to identify and respond to risk.
9. Temporarily or indefinitely banning entry to the U.S., increasing detention at airports
The Trump administration’s temporary ban on refugee resettlement to the United States, and on migrants and refugees from six Muslim-majority countries, seeks to falsely link Muslim refugees and asylum seekers with terrorism. When first announced, this led to increased detention in airports and the risk of people being detained in other countries trying to come to the U.S. Alarming effects of the orders were seen almost immediately, such as when a 5 year old child was detained in handcuffs in a U.S. airport because he “may have posed a security threat”.
10. Impact on continued detention of refugees awaiting resettlement
By halving the U.S. government’s refugee resettlement program, the Trump administration closes America’s door to those who are most in need. This will leave tens of thousands of refugees in precarious situations, uncertain if, or when, they will be resettled. Some of these refugees are currently detained, or at risk of detention, in countries that do not provide recognized refugees with any status or documentation.
