It’s Been 3 Years Since the Signing of the ATD-MOU in Thailand: Where Are We Now?
On 21 January 2019, representatives of 7 Thai Government agencies signed the Memorandum of Understanding on the Determination of Measures and Approaches Alternatives to Detention of Children in Immigration Detention Centres (ATD-MOU), as well as Standard Operating Procedures (SOPs) to implement the ATD-MOU starting in September 2020. The ATD-MOU was a concrete outcome of a pledge made by Prime Minister Prayut Chan-o-cha during the 2016 Leaders’ Summit on Refugees at the United Nations in New York. At the summit, he publicly pledged to end the immigration detention of refugee and asylum seeker children in Thailand.
Ever since the ATD-MOU was signed 3 years ago, IDC and HOST International have worked in partnership to collate and strengthen the evidence-base that can be used to increase practical understanding of community-based, rights-based, and gender-responsive ATD within the Thai urban refugee context. IDC and HOST have also been working together, and with various local partners, to strengthen ATD policy and practice in Thailand during this time.
To mark the 3rd anniversary of the ATD-MOU, IDC, HOST International and the Embassy of Canada to Thailand organised an event: “Strengthening Community-based ATD in Thailand: Lessons Learned From the Past 3 Years.” This event was funded by the Canada Fund for Local Initiatives (CFLI) and was held at the Novotel Sukhumvit Bangkok on 28 February 2022.
Over 60 people attended from a diverse group of stakeholders, including government agencies, civil society organisations, UN agencies, and diplomatic missions. Attendees came together to share and discuss the growing evidence-base, as well as critical pathways to shift focus from enforcement-focused models of ATD, towards ATD that is centred on community-based protection and care for all children and their families. The event began with opening remarks by Her Excellency. Dr. Sarah Taylor, the Ambassador of the Embassy of Canada to Thailand. She called on everyone to consider the crisis in Ukraine, and the stark reminder it gives us all that refugees and people seeking asylum flee their countries by no fault of their own, and security risk must be carefully assessed, not assumed. Dr. Taylor affirmed that the detention of people seeking asylum must only be used as an absolute last resort, and the detention of children is never justified.
These important remarks were followed by Laddawan Tantivithayapitak, President of HOST International Foundation Thailand, who emphasised HOST International’s mission to make life better for people on the move in Thailand by fostering humanity, hope, and dignity for all. Tantivithayapitak reflected on the partnership between HOST International and the Department of Children and Youth (DCY), as well as other key stakeholders who have supported children and their families being released from immigration detention since 2018, through a community-based Case Management programme.
Yuhanee Jekha, Regional Programme Manager at HOST International, then presented the independent evaluation report of HOST’s community-based Case Management programme conducted in 2021. This report highlighted the programme’s successes, lessons learned, and recommendations for specific interventions to bring more humanity and dignity to the urban refugee experience in Thailand. For example, following release from detention many children and their families found it very difficult to navigate complex legal systems, to meet basic daily needs, to access and pay for health care, manage finances, and participate in education. To address these issues, community-based Case Management in urban areas has proven to work extremely well and has excellent potential to grow to scale. In Thailand, this approach is cost-effective, supports compliance with immigration requirements, and leads to improved well-being by providing holistic and tailored support. This approach also requires strong partnership, the ongoing involvement of local communities, and long-term investment to support strengthened migration governance outcomes in Thailand. For more information about this evaluation, please contact HOST International.
The event also featured a panel, which included Suthida Srimongkol, Director of Protection System Development Sub-Division at the Department of Children and Youth (DCY), Ministry of Social Development and Human Security, and Pasatree Comwong, Senior Social worker at Save the Children Thailand. The panel discussion was moderated by Parinya Boonridrerthaikul, Child Protection Officer at UNICEF Thailand.
Srimongkol shared an overview of the child protection system being implemented at the sub-district level by DCY since 2017, and discussed the localisation of child protection such as the Sub-district Child Protection System (SD-CPS), the Child Maltreatment Surveillance Tool (CMST), and the Child Protection Information System (CPIS). She underlined that case management is key to both short-term and long-term protection of children, as an effective case manager plays a vital role for children and families who are rebuilding their lives in the community. DCY also works at the district and provincial levels to build the capacity of local authorities and equip them with the skills and tools needed to work with children. Srimongkol welcomed civil society to partner with DCY in these efforts to strengthen child protection mechanisms within local communities.
Comwong emphasised the role of community in the protection of vulnerable children and indicated that it is critical to understand the community’s capacities and perform resource mapping. Through these mapping processes, the community is able to recognise the different roles they can play to protect vulnerable children. Further, these community and resource assessments need to be accessible and updated routinely. Boonridrerthaikul added that it is important to stay focused on the big picture, which is not just about non-detention, but about enabling access to legal status, health care, education, and meeting other important needs of children.
Angkhana Neelaphaijit, President at Justice for Peace Foundation and former Commissioner of the National Human Rights Commission of Thailand also delivered key remarks. She clarified that while Thailand might regard itself as a transit country, many people cannot ever be repatriated or resettled elsewhere. Therefore, under current Thai policies many are forced to spend much of their lives in immigration detention, some for over a decade. This presents a moral challenge to Thailand’s commitment to human rights. Neelaphaijit shared key recommendations to the Thai government and Thai people in moving forward:
- Ensure that all children receive proper care and protection without discrimination on any grounds, and with consideration of the best interests of the child.
- Accelerate the finalisation of the regulation and procedures of the national screening mechanisms, so that refugees and people seeking asylum can work and be independent.
- Cultivate accurate information and inform public understanding about the root causes of migration, and the right and need for people to be able to seek international protection and a better life.
- In cases of enforced disappearance, sexual abuse, and human trafficking, the government and relevant agencies must accelerate investigations and bring the perpetrators to justice, while also providing support and remedies to victims and survivors.
- Laws must be changed to centre the experiences of survivors, including the Immigration Act, the Anti-trafficking In Persons Act.
As IDC Southeast Asia Programme Manager and a long-time Thai advocate, I also had a chance to speak at this important event and share IDC’s newly published research analysis of the Promising Practices in ATD for children and their families. As someone who has been part of the ATD-MOU’s development from day 1, I have witnessed Thailand make significant progress since the ATD-MOU came into effect in 2019. Hundreds of children and their families have been released from immigration detention over the last three years. However, children continue to be subject to immigration detention in Thailand, as the ATD-MOU is only triggered once a child has been arrested and detained. Children may be released with their mothers, though mothers are required to pay bail at prohibitively high costs. Fathers are not typically considered for release under the ATD-MOU, which results in family separation and pressure on mothers who find themselves as single heads of household. Through IDC’s research analysis, we aim to support the Thai government and stakeholders by illustrating what rights-based ATD for children and their families looks like, alongside promising examples from different country contexts that may be of particular interest.
Political will, commitment to the best interest of the child, and multi-stakeholder collaboration have been the key drivers of advocacy efforts among Thai civil society, government partners, UN agencies, the diplomat community, academics, and people whose lives are impacted by immigration detention. For me, the 3rd anniversary of the ATD-MOU is a vital milestone for all stakeholders to consider how to improve ATD policy and practices in Thailand to ensure that all children and their families affected by immigration detention can access community-based, rights-based, and gender-responsive ATD. With Thailand’s global leadership on ATD, I believe that one day immigration detention will no longer exist in my country, and people who migrate here will live with rights and dignity - which is IDC’s vision for the world.
IDC shares much gratitude to HOST International, the Embassy of Canada to Thailand, the Canada Fund for Local Initiatives (CFLI), and our other local members and partners for your continued collaboration and commitment.
Written by Chawaratt Chawarangkul IDC Southeast Asia Programme Manager & Photo Credits to the Embassy of Canada to Thailand
An Exploration of Accommodation Provision for Migrants in the EU
This blog is written by Rositsa Atanasova, Advocacy Expert at the Center for Legal Aid – Voice in Bulgaria, a European Alternatives to Detention Network (EATDN) member and ATD pilot implementer, and overviews the results of an EU mapping which demonstrates a wide variety of options when it comes to accommodation provision for migrants, including those that could be used within designated ATD initiatives.
In many national contexts the application of alternatives to detention (ATD) remains limited in practice, because detention is applied by default to foreign nationals who have lost the right of residence, and not as a measure of last resort. According to EU and international law, states must consider ATD before depriving people of their liberty. Yet too often we see an improper reversal of the burden of proof, whereby it is up to people in irregular situations to contest the presumption of detention by proving that they fulfil the requirements for the application of alternatives.
In Bulgaria, the experience of the Centre for Legal Aid – Voice in Bulgaria (CLA) is that there is almost no individualised assessment of the principles of necessity, reasonableness and proportionality, as required by European and international legal standards. Instead, authorities are only willing to consider ATD when an individual has met the conditions in the law for the implementation of alternatives through case management support. Frequently, this includes a requirement that suitable accommodation be available.
In order to better understand current accommodation options in the EU and Bulgaria, as well as their potential for expansion in the context of ATD, in late 2021 I carried out a study on options for irregular migrants. Here, I explain my conclusions as well as the implications when it comes to ATD for people in immigration detention.
Accommodation Options for Irregular Migrants in the EU
The study of accommodation options for irregular migrants, which I conducted for CLA with the support of our donor EPIM, consists of a mapping paper and an advocacy strategy. The mapping paper systematises current practice in the EU and advances a new conceptual framework for analysis of the link between ATD and accommodation. It is based on desk research and fills a gap in recent research on the accommodation of irregular migrants in the EU. The advocacy document, in turn, explores current practice in Bulgaria and contains an action plan for the short and mid-term in order to improve access to accommodation and expand the use of ATD. It draws on meetings with a range of stakeholders including government agencies and local authorities, NGOs, service providers and beneficiaries. The interviews provided information about the range of existing services, which was not available through desk research alone.
The range of accommodation options for irregular migrants in the European context can be mapped on a matrix (Table 1) in relation to the nature of the service provider and the nature of any potential partner. The axes represent a spectrum of accommodation provision, from state-run housing to private accommodation through NGO and denomination-run residential options. Such a model allows us to visualize dependency on an intermediary to access accommodation alternatives and how much of that service-provision is dominated by the state. In addition, the chart illustrates potential new areas for service-creation that might not yet exist. The matrix is ultimately also an instrument for measuring whether responses are mostly community-based or institutional.
As illustrated by the examples above, accommodation for irregular migrants in the EU, if available at all, tends to be institutional and oriented towards return. In exceptional circumstances, people who cannot be deported to their country of origin can be accommodated in open reception centres for asylum-seekers or in homeless shelters. These options, however, are not presented as possible ATD, but as a way for authorities to provide a bare minimum of material assistance. The different housing possibilities presented here are most often used by irregular migrants who are not in contact with the authorities. Such pathways, however, can be quickly and usefully deployed to offer alternatives to detention in an emergency situation, as illustrated by regularisation initiatives during the pandemic. This is why it is useful to consider the full range of available choices in an effort to expand the ATD portfolio.
Accommodation Options for Irregular Migrants in Bulgaria
The study of accommodation options for irregular migrants in Bulgaria reveals a gradually shrinking space, however. Access to state services, State Agency for Refugees (SAR) reception centers and municipal housing have become more difficult to access even for beneficiaries of international protection, not to mention those in an irregular situation. Service providers are less willing to bend the rules to accommodate people without documents in crisis, particularly in light of pandemic measures. Mothers with children and victims of domestic violence or trafficking are the only groups that face fewer impediments, but even their access frequently involves protracted negotiations with service providers and social workers to renew referrals on a case by case basis. Placement in a service, ultimately, does not qualify as a formal ATD, but amounts to tolerated stay that is not formalized in any way.
Private housing remains the most readily available option for irregular migrants and the only one that currently qualifies as a formal ATD. The advantage of the Bulgarian system is that those who lend property to people without documents do not seem to incur criminal or administrative sanctions, in line with FRA recommendations. As a downside, private arrangements are onerous due to the need to find a guarantor who is willing to provide financial support, as well as to locate suitable accommodation amidst exploitative renting schemes, discrimination and limited choices.
Implications for ATD
The results of the mapping and advocacy strategy, outlined above, demonstrate a wide variety of options when it comes to accommodation provision for migrants, including those that could be used within designated ATD initiatives. On the face of it, the Bulgarian accommodation requirement mentioned above could potentially be good news because it opens up the space for NGOs to develop accommodation options and case management programs for irregular migrants in order to expand the use of ATD for those at risk of immigration detention. Moreover, we know how essential stable and appropriate accommodation is for those going through migration processes; the government requirement could be seen as a recognition of this. By drawing on lessons learned across the EU, and developing additional accommodation models, the implication is that advocates for the rights and liberties of migrants can encourage a shift on the part of governments to using ATD.
The reality, however, is more complex. Given the standing presumption of detention in Bulgaria, it is not clear whether the availability of more housing options for irregular migrants will necessarily lead to greater application of alternatives. Instead, it seems that the accommodation requirement is being used as an excuse to justify the government’s failure to systematically consider ATD, linked to a general political resistance to community-based solutions (including on national security grounds).
CLA practice indicates that authorities tolerate stay in services when it will spare them the responsibility for vulnerable individuals and are more willing to apply ATD when presented with ready-made solutions. The implication, therefore, is that whilst accommodation remains a key part of ATD programmes, the provision of more accommodation options alone is unlikely to be the catalyst for change that it might seem at first glance to be. Provision of accommodation, whilst a key part of ATD, is certainly not a silver bullet. Instead, the reversal of the ATD logic – which sees detention as the primary precautionary measure, as opposed to a measure of last resort – should be challenged on its own terms. In particular, it is essential that the burden of proof is turned back around so that presumption of liberty, rather than detention, becomes the norm. In Bulgaria, possible routes lie in advocating for access to services on the basis of the new Law on Social Services, which is theoretically applicable to all persons within the jurisdiction, and NGOs stepping in as mediators, guarantors or service providers for irregular migrants.
IDC is a co-coordinator of the European Alternatives to Detention Network (EATDN), and this blog was originally posted on the EATDN site here. Find out more about the work of Centre for Legal Aid – Voice in Bulgaria, including their pilot ATD programme here.
The Action Access Alternative to Detention Pilot: Evaluation of Community-Based Support
An independent evaluation of the pioneering pilot project delivered by European Alternatives to Detention Network (EATDN) member Action Foundation and funded by the UK Home Office has found it is more humane and significantly less expensive to support women in vulnerable situations in the community as an alternative to keeping them in detention centres. In this blog, Action Foundation Chief Executive Duncan McAuley summarises the pilot, its aims, and the findings of the evaluation.
In 2018, the UK Government published the Shaw Progress Report, a follow-up to the Review into the Welfare in Detention of Vulnerable Persons produced by Stephen Shaw, former Prisons and Probations Ombudsperson for England and Wales. Amongst other recommendations, the progress review urged the UK Government to “demonstrate much greater energy in its consideration of alternatives to detention.” Shortly after its publication, the Government announced the creation of a Community Engagement pilot (CEP) Series, which set out to test approaches to supporting people to resolve their immigration cases in the community.
Action Access: a civil society-government partnership
Following a successful bid process, Action Foundation – which had played a key role in the advocacy efforts that led to the introduction of the CEP – was granted the contract for the first of the four pilots, and our Alternative to Detention (ATD) project was born. The Action Access pilot ran between 2019 and 2021 and supported 20 women seeking asylum in a community setting in Newcastle-upon-Tyne in the North East of England. With one exception, prior to joining the pilot all of the women had been detained in Yarl’s Wood Immigration Removal Centre.
Upon joining the pilot, the women were provided with shared accommodation, received one-to-one support from Action Foundation staff, and were supported to access legal counselling. Although it wasn’t a requirement of the pilot, the women also benefited from Action Foundation’s broader program of activity such as its free English language classes and weekly community gatherings, facilitating socialisation, signposting and referrals.
The pilot was framed around five pillars of support:
- Personal stability: achieving a position of stability (in relation to, for example, housing, subsistence and safety) from which people are able to make difficult, life-changing decisions;
- Reliable information: providing and ensuring access to accurate, comprehensive, personally relevant information on UK immigration and asylum law;
- Community support: providing and ensuring access to consistent pastoral and community support, addressing the need to be heard and the need to discuss their situation with independent and familiar people;
- Active engagement: giving people an opportunity to engage with immigration services and ensuring that they feel able to connect and engage at the right level, enabling greater awareness of their immigration status, upcoming events and deadlines with routine personal contact fostering compliance; and
- Prepared futures: being able to plan for the future, finding positive ways forward, developing skills in line with their immigration objectives, identifying opportunities to advance ambitions. Through this approach, the pilot hopes to provide more efficient, humane and cost-effective case resolution for migrants and asylum seekers, by supporting migrants to make appropriate personal immigration decisions.
The model was innovative in a number of ways. The combination of a holistic approach to case management with comprehensive legal support, for instance, was integral to the delivery of the pilot and seen to make case resolution more likely. In addition, although there have been other examples of ATD in the UK, including an ongoing project run by Detention Action, Action Access was the first time that such a pilot had been built from a formal civil society-government partnership. The relationship between many parts of the Home Office and civil society are often tense, and the pilot represented a leap of faith. But we found the experience of working with the Home Office Community Engagement Team a really positive and productive one. There was a genuine collaborative relationship between the Home Office, the UN Refugee Agency (UNHCR) and Action Foundation and this unique partnership demonstrates a model of working that is both dynamic and effective. Importantly, it demonstrates the success possible if the Home Office is willing to replicate this approach in the future.
Evaluating the pilot’s success: Improved wellbeing and reduced costs
The findings of the pilot were officially published in late January by UNHCR, who had commissioned the evaluation. The report, entitled Evaluation of the Action Access Pilot, was researched and compiled by Britain’s largest independent social research organisation, the National Centre for Social Research (NatCen). Commenting on the effectiveness of the pilot, NatCen’s report states:
“Our evaluation found qualitative evidence that participants experienced more stability and better health and wellbeing outcomes whilst being supported by Action Access in the community than they had received while in detention. Evidence from this pilot suggests that these outcomes were achievable without decreasing compliance with the immigration system.”
The evaluation said this provided “a more humane and less stressful environment for pilot participants to engage in the legal review and make decisions about their future, compared with immigration detention. Even when those decisions were difficult and participants had no legal case to remain in the UK, the pilot gave the participants space and time to engage with their immigration options.”
The more humane environment was a repeated theme shared with researchers, with one of the participants saying, “In detention, you don’t have this kind of positive atmosphere. You just want to cry. You just want to stop eating. You just want to kill yourself. This is because you are so in trouble there, right. Then, when you come out, it’s like everything is going to be nice again… the atmosphere is very different, and I think you recover yourself.”
The evaluation of Action Access also suggests that keeping people in the community is much less expensive than holding an individual in detention. The report states that the potential savings could be less than half the cost of detention, in line with Action Foundation’s own calculations.
Next steps: Introducing ATD as ‘business as usual’?
While Action Access may have come to an end, Action Foundation continues to work according to the same model: combining one-to-one case management with comprehensive legal advice in order to ensure that people are able to resolve their cases in the community. We continue to believe that this type of community-based support is the best way of supporting people going through the migration system and can be used effectively instead of detention.
As for the UK Government’s next steps, it remains to be seen what will come of the CEP Series in practice. A second pilot is already underway, run by the King’s Arms Project, however there have been no confirmations that the CEP series will continue beyond this.
The seven recommendations made in the Action Access evaluation, all of which the Home Office has accepted, included a call for them to “accelerate the introduction of effective aspects of the ATD programme into the Home Office’s ‘business as usual’ model.” We hope to see progress on this, and the upcoming International Migration Review Forum (IMRF) could be the perfect context to pledge to take action. In the UK as is the case elsewhere, there’s a growing need for a change of direction and a rethinking of the approach to migration management – particularly when it comes to immigration detention. We hope our pilot, and the evidence that has emerged from it, can contribute to those necessary changes.
IDC is a co-coordinator of the European Alternatives to Detention Network (EATDN), and this blog was originally posted on the EATDN site here. Also find out more about the Action Access pilot here and here.
IDC & ECDN Welcomes Launch of ATD Pilot in Malaysia
25th February 2022, Kuala Lumpur – The End Child Detention Network Malaysia (ECDN) welcomes the launch of the Alternative to Detention (ATD) pilot programme by the Malaysian Government. The pilot programme is anchored by the Ministry of Women, Family and Community Development and the Ministry of Home Affairs. The pilot programme, which will provide temporary shelter for unaccompanied and separated children under detention, acknowledges the serious harms that children face in immigration detention and focuses on prioritising the physical and mental health development of children.
The ATD pilot programme is a step in the right direction towards fulfilling Malaysia’s obligations under the UN Convention on the Rights of the Child (CRC), which the nation ratified in 1995, and is timely, as Malaysia prepares to submit a status report to the UN Committee on the Rights of the Child. The standard operating procedure (SOP) framework for the ATD pilot, which was developed in consultation with select non-governmental organisations, is strongly guided by the principle of best interests of the child (Article 3), and further upholds the rights of a child to be protected from all forms of violence (Article 19), and to access special protection in the event of separation from family environment (Article 20). Further to that, the launch of the ATD pilot also works towards the implementation of policies and legislations that promote and protect the rights of the most vulnerable communities - which was one of Malaysia’s pledges made to secure their seat on the United Nations Human Rights Council, and signals Malaysia’s commitment to the ASEAN Declaration on the Rights of Children in the Context of Migration and its corresponding Regional Plan.
The UN Committee on the Rights of the Child has provided authoritative guidance that immigration detention is a violation of child rights, and as of October 11, 2021, the Home Ministry reported about 1, 425 children in detention centres nationwide. Malaysia has been lagging behind our closest neighbours in ASEAN, specifically Thailand and Indonesia, who have since 2019 released hundreds of children from immigration detention into community-based care. Thus, we welcome the launch of the ATD pilot programme as a step towards ending child detention in Malaysia, and we urge the Malaysian government to follow through in ensuring that all human rights of a child, and a child’s wellbeing and best interests are foregrounded and upheld throughout the process of release, community placement, as well as in our immigration policies. As we move forward, we strongly recommend to the Ministry of Women, Family and Community Development and Ministry of Home Affairs to develop a clear framework for monitoring and evaluation of the ATD pilot that focuses on the best interest of the child. We also call on the Malaysian government to provide further details and regular updates on the implementation of this ATD Pilot in Parliament.
We look forward to continuing working with the government, policymakers, and implementing staff to protect and uphold the human rights of all children in Malaysia.
About the End Child Detention Network (ECDN) The End Child Detention Network is a coalition of civil society organisations and individuals working to ensure that no child is detained in Malaysia due to their immigration status.
For more information, please contact: End Child Detention Network Coordinator - [email protected]
Growing Through The Azalea Initiative: Refugee Leadership Programme in Malaysia
In January 2022, the Akar Umbi Development Society, sister organisation of SUKA Society, an IDC member, launched the first series of workshops of the Azalea Initiative. The initiative is a women’s leadership development programme that aims to empower women of marginalised identities and increase their capacities to become changemakers within their communities. The aspiration is for them to become advocates in their own right, and catalyse change towards alternatives to detention (ATD) and an end to immigration detention.
In collaboration with IDC and IDC partners in Malaysia, and with close reference to IDC’s Community Leadership Curriculum, Akar Umbi has developed their pilot programme with modules surrounding themes of migration, identities, power, resilience, justice, solidarity and community organising. IDC’s Community Leadership Curriculum was developed with the goal of supporting the leadership and meaningful participation of people who have experienced or have been at risk of immigration detention. This is grounded in our belief that people with lived experience of detention must be involved in shaping the policies that directly impact their own lives and communities.
The first series of workshops of the Azalea Initiative was joined by 12 participants, who began their journey of learning how to plan, lead and implement projects with Akar Umbi’s support. A participant of the Azalea initiative reflected, "I now feel I can go outside to work if I wanted to. Before this, I felt that I could only stay at home and be a home-maker," demonstrating the significance of an initiative like this in changing lives, even in its initial stages.
For more information on the Azalea Initiative, visit Akar Umbi Development Society’s website and Instagram. For more information about IDC’s Community Leadership Curriculum, please contact IDC Communications & Engagement Coordinator, Mia-lia Boua Kiernan at [email protected]
Written by Hannah Jambunathan Community & Engagement Organiser - Malaysia
Hope in Efforts to End Detention of People Seeking Asylum in Mexico
People seeking asylum who apply for refugee recognition in Mexico while in immigration detention are required to remain in detention for the duration of their refugee status recognition process. However, should a person apply for asylum outside of detention, they will not be detained during their refugee status recognition process, given two conditions: first, that they remain in the federal entity (state) in which they are processing their application, and second, that they appear weekly before the corresponding authority to sign and declare their agreement to continue the process until a resolution is obtained.
Over the past decade, IDC and various organisations, such as Asylum Access México and networks such as Grupo Articulador México del Plan de Acción Brasil (GAM-PAB) and Grupo de Trabajo de Política Migratoria (GTPM), have promoted collective advocacy actions, initiatives and pilot programs for children to promote alternatives to detention (ATD).
On the basis of this and mindful of the severe injustice and harms endured in detention by people seeking asylum, in mid-2021, a civil society Advocacy Task Force against Detention was created to specifically advocate for an end to immigration detention of asylum seekers in Mexico.
The Task Force has focused on two activities: first, a campaign regarding the effects of detention on refugees and the need to eliminate detention for asylum seekers, aimed at raising awareness and promoting the prevention and elimination of detention in Mexico. Second, a proposal to reform several regulations in order to end this practice.
While the program allowing for the release of asylum seekers from detention has been implemented in the country since 2016 by the National Institute of Immigration (INM), the Mexican Commission for Refugee Assistance (COMAR), and the United Nations High Commissioner for Refugees (ACNUR), it remains an informal and discretionary practice without clear and public criteria, and at the end of 2020 it became subject to additional limitations. It is thus questionable whether the program can be considered an ATD.
All people seeking asylum are therefore at risk of detention at present. Children are an exception to this as their detention was prohibited, although not totally eradicated, by reforms in the Migration Law and the Law on Refugees, Complementary Protection and Political Asylum in 2020.
The legislative reform proposed by the Advocacy Task Force against Detention is ambitious, ranging from additions to the Constitution, to modifications of the Migration Law and the Law on Refugees, Complementary Protection and Political Asylum, among other initiatives. It aims to guarantee that asylum seekers are not subject to detention.
In 2022, the Advocacy Task Force aims to continue to raise awareness and advocate for the above-mentioned reforms. In addition, a series of actions are planned to promote the adoption of ATD for asylum seekers in both policy and practice, as well as to influence judicial decisions that will prevent detention and guarantee access to due process.
Written by Diana Martinez Americas Program Officer, Carolina Carreño Americas Childhood Project Officer & Elizabeth Alvares Americas Programme Assistant
Uncertain Future for Mexico's Asylum Seeker Release Program
The lack of clarity surrounding Mexico's asylum seeker release program (programa de salidas de la estación migratoria, SEM), together with the absence of public policy guaranteeing the rights of refugees, present significant obstacles for asylum seekers in refugee recognition procedures before the Mexican Commission for Refugee Assistance (COMAR).
Migration authorities persist in increasingly and automatically detaining migrants and asylum seekers. In 2021, 307,679 people were detained, up from the 82,379 people detained in 2020, despite the pressure exerted by civil society organisations in the face of the national health emergency issued on 30 March 2020 by the federal government due to SARS-COVID-19. This pressure took the form of legal actions and advocacy to free vulnerable migrants and asylum seekers held in detention centres. During 2020, detentions continued and few asylum seekers had access to the SEM program. While the program was initially viewed as promising and as a positive practice, as access for detained asylum seekers became more restricted, it gradually dissipated and effectively came to an end,
The SEM is a tripartite mechanism between the National Institute of Immigration (INM), the United Nations High Commissioner for Refugees (ACNUR), and the COMAR. It was first implemented in July 2016, with the aim of providing alternatives to detention for asylum seekers in detention centres.
The SEM benefitted 18,064 people between January 2017 and October 2020. However, in November and December 2020, only 145 people were able to access the program following new guidelines by the National Institute of Immigration (INM) to all detention center authorities. These instructions excluded people from the program if they had entered Mexican territory irregularly; if they were traveling alone, that is, without accompanying family, and had entered irregularly; or children who had entered irregularly. This evidently violates both Mexican law and international conventions that establish the international principle of not sanctioning asylum seekers for irregular entry.
New research on alternatives to detention for refugees in Mexico
In 2020, Asylum Access Mexico published a report on their research into the challenges and obstacles faced by asylum seekers in accessing the SEM program, as well as the process of applying for refugee status from detention. This research found that detention is in itself an obstacle to applying for refugee status in Mexico. In addition, those who applied for asylum when in detention, were forced to remain detained for an average of 40 days. In one case, a person was detained twice. They were initially held for a little over 40 days, followed by a further 2 months when detained in another city, even though they had been released from the original detention center under the SEM program.
The SEM also lacks clear criteria and transparency. As the program is neither institutionalised nor regulated, it is subject to discretion in its implementation and practically depends on the decision of the public official on duty. This discourages effective access to asylum. Ambiguity around how the program operates creates uncertainty for refugees. As such, many opt not to apply for asylum while in detention, as they understand that this will entail being held for prolonged periods. In this regard, people prefer to accept their deportation, despite the risk posed by being returned to the country from which they fled in the first place in order to safeguard their lives.
These findings reflect the urgent need to reform the refugee and immigration laws in Mexico in order to guarantee that immigration detention for people requiring international protection ceases to be an automatic and arbitrary practice, and is used only as a last resort in exceptional cases, with strict compliance to the criteria of necessity, proportionality and reasonableness of such detention.
By Alejandra Macías Delgadillo, Executive Director, Asylum Access Mexico & IDC International Advisory Committee Member
Updates from IDC’s MENA Regional Programme
In December 2021, we launched an IDC Facebook Page for the MENA Region! This page will include regular updates in Arabic and English, and will also coordinate a private Facebook group for IDC MENA members to enhance ongoing engagement between our members and strengthen communication and collaboration.
Most recently in February 2022, IDC announced a new online training that we are co-organising with UNICEF on 17 March. This training will focus on supporting civil society groups and initiatives to enhance their capacity and build a network of actors working on issues related to ending the immigration detention of children in the MENA region.
IDC and UNICEF Middle East and North Africa (MENA) are carrying out research on the current state of immigration detention and the related legislations and practices in the MENA region, especially concerning children. In addition to identifying opportunities for the implementation of community-based Alternatives to Detention (ATD). The purpose of this research is to inform the International Migration Review Forum in May 2022, which serves as the primary intergovernmental global platform to discuss and share progress on the implementation of all aspects of the Global Compact for Migration.
Refugee protests and online mobilisation
In January, 600 refugees and migrants in Tripoli, Libya, were arrested and detained after protesting for months in front of a UNHCR building. They were demanding safety and protection, as well as seeking resettlement out of the country. Read more about these developments in our blog post: What’s happening in Tripoli? in English and Arabic.
Issues in Libya are similar to previous refugee protests in Egypt in 2020, where refugees in front of a UNHCR building were demanding justice following the killing of a refugee child. The protesters, who were mostly Sudanese, were detained by authorities. More recently in February 2022, refugees in Tunisia have also started protesting and demanding necessary protection assistance, including resettlement to Europe.
These examples reflect the growing need for proper mechanisms to listen and understand the concerns and challenges of refugees and migrants, and consider what is needed beyond the current systems in place. Additionally, migrant and refugee communities have started using social media to reach wider audiences internationally, using hashtags such as #EVACUATErefugeesTUNISIA4yearsisENOUGH and #EvacuateRefugeesFromLibya. Impacted communities are taking these actions to raise their voices and be heard, and to appeal to activists, organisations, and social movements beyond the borders of the countries where they feel trapped inside. Furthermore, refugee-led initiatives are increasing in the region to cover gaps in daily assistance, such as this online fundraising campaign initiated by refugee communities in Libya (GoFundMe) to support refugees and migrants with basic needs. The goal is to raise 15k euros, and they are already two thirds of the way there!
Agreements to prevent migrant arrivals in Europe continue
In Libya, despite the grave human rights violations reported inside Libyan detention centres, there are currently 12,000 migrants and refugees in immigration detention. Italy, with backing from the EU, is continuing its 5-year long agreement with Libya. Signed in 2017, this agreement provides support to Libyan Coast Guards, allowing them to intercept and return migrants crossing the Mediterranean to Europe. Despite continuation of the agreement, the UN maintains its call for a total suspension of such agreements, declaring that “Libya is not a safe port of disembarkation for refugees and migrants.”
In countries like Tunisia, agreements with European countries have not been made public. However, some organizations have raised concerns over proposals for further collaboration between Tunisia and some European states, given increased migration from the country in the last few years. So far, 5,000 Tunisians have been repatriated from Italy.
Restrictions such as these have left people on the move with limited options to seek international protection, and better economic opportunities to provide safety, stability and wellbeing for their loved ones and families. These difficult predicaments have led migrant communities to speak out about their conditions, as described above. Additionally, in January 2022, two Nigerian migrants brought a case against Italy and Libya before the UN Committee on the Elimination of Discrimination Against Women (CEDAW). Their case states that Italy and Libya failed to adhere to their international obligation to protect women’s rights with regards to the complainants, who are also victims of human trafficking. Updates on this case are said to be forthcoming in the next few months.
Deportations, repatriations and returns
In Egypt, detained unregistered people seeking asylum have limited access to UNHCR, asylum procedures or legal assistance. Human Rights Watch reported in 2021 about the poor conditions of nine Eritrean asylum seekers who were detained, including children. By the end of 2021, Egypt had deported 24 Eritreans who were seeking asylum, including adults and children. Upon return to Eritrea, these people and families face serious risks of arbitrary detention and torture by the ruling government.
In 2021, Libyan Coast Guards intercepted and returned 30,990 migrants and refugees to Libya. This was almost three times more people than in 2020. While in Morocco, police arrested more than 12,000 people attempting to leave through irregular means. This is potentially also linked to an agreement with the EU to prevent arrivals, as indicated in a leaked report by the European Commission in 2021. This report included proposals to strengthen cooperation with Libya and Morocco as part of the new EU pact on migration and asylum.
Additionally, Iraq repatriated 4,000 people from Europe since November 2021.This was after thousands reached the Belarus-Poland border seeking safety and asylum earlier in the year. Iraq’s repatriations were welcomed by the EU, and considered “good cooperation” in managing the crisis at their border.
Moving forward
The complexities of the migration experience in the MENA region, as well as the political relationships and dynamics that exist between nations in both Europe and MENA, creates an environment that criminalises migrant communities as a default approach, which adds to the vulnerabilities and risks faced by people on the move. Immigration detention is a core issue within this criminalisation approach, and IDC aims to continue strengthening its MENA Regional Programme in order to build civil society capacity, networks and advocacy initiatives to ensure that human rights and dignity are at the forefront of the migrant and refugee experience in MENA.
For more information about IDC’s MENA Regional Programme, please contact [email protected]
Written by Amera Markous MENA Regional Coordinator
IDC Statement on the Crisis in Ukraine
Published on Friday 4 March, 2022
It’s been just over a week since the Russian government initiated a military invasion of Ukraine, and civilians are continuing to flee their homes in response to ongoing airstrikes, shelling, and ground fighting. According to the United Nations, as of 2 March more than one million people had fled the country in search of safety, many on foot in bitter cold temperatures - including tens of thousands of families with young children and infants. International Detention Coalition (IDC) stands firmly in solidarity with all those who have been impacted by this conflict, and we unequivocally condemn the Russian military invasion of Ukraine.
The largest numbers of refugee arrivals have been seen in Poland, Hungary, Moldova, Slovakia and Romania. The response of these governments has so far been overwhelmingly positive, with the Polish Interior Minister declaring that the country would take “as many [people] as there will be at our border,” and both the Hungarian and Moldovan governments pledging to keep their borders open to those fleeing the conflict in Ukraine. Local communities have also shown great generosity and hospitality; nine out of every ten refugees in Poland are being hosted by friends or family.
At the EU level, on Thursday the decision was taken to offer temporary protection to refugees fleeing Ukraine by triggering the temporary protection directive, which was drawn up in 2001 following the conflicts in the Balkans but has so far never been used. The Directive allows for people fleeing a particular country or area to be granted status for up to three years, without having to formally lodge an asylum claim. Other countries across the world have also shown their support for those affected by the conflict.
For IDC and its members, this positive response provides further evidence that immigration detention is not a necessary or integral part of migration governance systems at all. When governments prioritise creating a welcoming and safe environment for those fleeing war and persecution, people can seek sanctuary without being detained, and crucially with their human rights and liberty intact.
However, concerning reports have emerged of African migrants and other migrants of colour, including international students studying in Ukraine, being blocked or delayed from fleeing to safety. This is unacceptable. Moreover, at its border with Belarus the Polish government continues its project to construct a wall to deter migrants and those seeking asylum from crossing. This follows months of aggressive pushbacks by the Polish authorities of people seeking safety, many of whom are migrants of colour, which have led to the deaths of at least 19 people. Regardless of sex, gender identity, sexual orientation, and racial, ethnic, religious, and national background, it is essential that all those fleeing conflict are able to exercise their right to seek asylum and their right to freedom of movement. Governments of receiving countries must provide a welcoming atmosphere, documentation and access to services to those arriving in search of peace and safety from Ukraine and elsewhere.
Overall, the regional and international response to the crisis in Ukraine has so far demonstrated that “Refugees Welcome” can be more than a slogan. As the crisis continues to unfold, IDC urges all governments to sustain the support and assistance that they have generously extended to so many fleeing Ukraine, and ensure this support is delivered to all people with equity and compassion. We also encourage governments to learn from this situation in order to inform their future responses to war and crises which force refugees and migrants to seek safety at their borders – no matter where people are from.
To the people, families and communities whose lives and futures have been impacted and uprooted by the conflict in Ukraine, we stand with you during this heartbreaking and challenging time.
IDC members are actively responding to refugees arriving from Ukraine:
- In Poland, The Association for Legal Intervention (Stowarzyszenie Interwencji Prawnej - SIP) works to ensure that migrants and refugees in Poland are able to access their rights. See here for more information on accessing legal support and crossing the border into Poland. Other information can be found in Polish, Ukrainian, Russian and English here.
- In Romania, the Jesuit Refugee Service is providing support to people arriving from Ukraine by providing welcome packages, channelling donations to people in need, and supporting people with accommodation and onward travel. Find out more and donate here.
- In Hungary, the Hungarian Helsinki Committee is providing support and legal assistance to those fleeing Ukraine. They have produced information packs for refugees in Hungarian, Ukrainian, Russian and English that can be accessed here. For more information on their response and to donate, click here.
More information on the ongoing crisis, and regular situation updates, can be found on the UNHCR Help page and the Operational Data Portal for Ukraine.
What's Happening in Tripoli?
On January 10th, 2022 more than 600 asylum seekers were violently arrested in front of a UNHCR centre, and detained in a detention centre in Tripoli, Libya. This follows months of camping on this site in makeshift tents, which were all burned down during the raid.
A TIMELINE OF EVENTS
October 1st, 2021: More than 5000 migrants and refugees, including pregnant women and children, were arrested and detained by authorities during a mass raid in the Gargarish area of Tripoli.
Days later: around 2000 migrants fled from a detention centre. Armed groups responded violently, resulting in the shooting deaths of six migrants and the injuries of 24 others.
October-December 2021: Raids continued across the city, leaving thousands of migrants and refugees homeless, including women and unaccompanied children. People and families with no housing camped in front of a UNHCR building in Tripoli for more than 90 days, and were met with repeated violent attacks throughout this period.
December 2021: The UNHCR Community Day Centre was permanently closed due to UNHCR activities being suspended, with more than 2000 protesters demonstrating in front of UNHCR buildings.
How Did This Happen?
According to UNHCR, available housing options are limited due to some landlords’ reluctance to rent to non-Libyans, and an increase in rental prices after the raids. Further, UNHCR is currently unable to provide alternative housing options in Libya, due to limited operational capacity in the country because of security issues, and lack of agreement with the government, as well as visas for staff.
In this critical time, IDC urges government, civil society and other stakeholders to work together urgently and identify Alternatives to Detention (ATD) for all migrants and refugees in Libya. The implementation of community centred ATD and access to accommodation and services in the community will prevent violence and harm like this from occurring again. It is essential to guarantee the right to liberty and freedom of movement to all migrants and refugees, regardless of immigration status. #ThereAreAlternatives.
Find out more here: https://idcoalition.org/publication/there-are-alternatives-revised-edition/
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