1. What is the definition of detention?
In its Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers (1999), UNHCR defines detention as follows:
Confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area it to leave the territory.
UNCHR refers to detention in the context of refugee camps as incorporating “arrest and detention at points of entry into the country, prior to refugees accessing the camps; arrest and detention when leaving closed camps without permission; the often detention-like conditions of closed camps (de facto detention); and detention within camps for criminal offenders (camp jails).” Thus, confinement in refugee camps where freedom of movement is restricted can amount to a form of detention.
2. Who is subject to immigration-related detention and are there any exceptions?
With few exceptions, countries worldwide place migrants, refugees and asylum seekers, including those who are stateless, in detention in an attempt to control access to their territories by individuals who they deem are not permitted to enter and/or remain in their territory.
International law, however, does place certain limitations on immigration-related detention, especially as it relates to refugees and asylum seekers. For example, the 1951 Convention relating to the Status of Refugees (the Refugee Convention) provides that refugees should not be detained or penalized because they were compelled to enter a country irregularly or without proper documentation, and must have the opportunity to seek asylum in a fair and effective asylum procedure.
As a general rule, the following classes of individuals should not be placed in immigration-related detention, even if they lack proper documentation (or are irregular migrants):
- Pregnant women and nursing mothers;
- Survivors of torture or trauma;
- Victims of human trafficking;
- The elderly or disabled; and
- Those in need of urgent physical or mental health care, including persons who have suffered violence in transit.
3. What procedural safeguards do refugees, asylum seekers and migrants have relating to their detention?
Under international, regional and national law, governments should guarantee freedom from arbitrary arrest, detention or exile to all persons within their borders. No person shall be subject to arbitrary arrest, detention or exile. In order for detention to be lawful, some basis in law must exist for ordering detention. Any order must be made for a legitimate purpose; there must be no lesser means available to achieve the objective justifying detention (i.e., attendance at interviews and hearings, compliance with removal order, etc.). Detention must be of a limited duration and must be applied in a non-discriminatory manner.
In order for governments to comply with their obligations under the law, they must do the following:
- Provide information to the detainee: Immediately after arrest, the arresting authority should provide information for the reasons of the arrest and detention and information regarding the detainee’s rights. This must be presented in a language and manner that s/he understands.
- Provide access to effective legal counsel: Governments should assure that legal counsel is available to a detainee shortly after his/her arrest to help the detainee understand his/her rights and to determine if s/he has a claim for refugee protection.
- Identify torture victims or persons with special needs: Governments should create a screening process to quickly identify torture victims, unaccompanied or separated children, and other vulnerable persons, including pregnant women, persons with medical needs, elderly persons and trafficking victims. Governments should then create appropriate mechanisms to respond to their needs, including placing them in open accommodation rather than jail-like facilities.
- Provide initial and periodic review of detention: Governments should establish a process for initial and periodic review of detained cases before a judicial or administrative body independent of the authorities who ordered initial detention. All detainees should be advised of their right to this review process.
- Facilitate access to the local UNHCR office, national refugee bodies or other agencies or advocates: In addition to making available – in several languages – a list with contact information for the local UNHCR office, NGOs and other agencies, governments should also permit regular access to the detention centers by such groups in order for them to provide information to the detainees regarding their rights. (UNHCR Guidelines, Guideline 5)
4. What should conditions of detention look like in order to comply with international law and standards?
Detainees have a right to be treated with humanity and respect. States are prohibited from carrying out any acts of torture, inhuman or degrading treatment. Conditions of detention often do not comply with general international standards and can be considered to rise to the level of torture, inhuman or degrading treatment under certain circumstances.
Torture can be both mental and physical and can take many forms, including the following: electric shocks; beatings; suspension in painful poses; rape; burning with cigarettes; deprivation of food, sleep or communication; noise; and intimidation.
Individual practices alone may not necessarily constitute torture, but they may when considered together. The following can constitute inhuman or degrading treatment: systematically ignoring repeated requests by a detainee; applying detention regulations in an arbitrary and uneven manner; creating a climate of suspicion and distrust among detainees; speaking to detainees as if they were children; and entering a detainee’s cell and space suddenly without reason.
In order for states to comply with their obligations to prevent torture, inhuman or degrading treatment, governments should do as follows:
- Information: Detainees should be provided with information regarding the rules and regulations of the detention facility in a language that they can understand. They should be given this information upon arrival and be provided an opportunity to ask questions during their entire period of detention.
- Complaint procedure: Governments should establish complaint procedures which detainees can access to complain about violations. All detention personnel in the center should wear badges which identify their name and rank.
- Capacity: Detainees should not be housed in overcrowded conditions.
International law requires that detainees be treated with dignity and respect. Conditions of detention, therefore, must respect the human rights of detainees, including the following:
The right to family life and privacy;
The right to medical care,
Appropriate accommodation and food;
The right to cultural life; the right to recreation;
The right to religion; and the right to education, among others.
In order to comply with its obligations to respect the human rights of detainees, governments should do the following:
- Accommodation: Accommodation should meet all requirements of local and national health regulations. There should be heating during the cold season(s) and fans and ventilators during the hot season(s). Sanitary installations should permit every detainee to attend to his/her own personal needs in a clean and decent manner. There should be adequate bathing and shower facilities so that a detainee can bathe or shower at appropriate temperatures. All parts of the centre should be properly maintained and cleaned. All detainees should be given separate beds with clean and warm bedding. Men and women should be segregated and where families are detained separate facilities should be made available. Administrative detainees should not be held with persons awaiting trial or persons with criminal convictions.
- Food: Every detainee should be given food of nutritional value adequate for his/her health and strength. Facilities in which the food is prepared should be clean and food should be distributed in a sanitary manner. Facilities should provide detainees with a reasonable and equitable opportunity to observe their religious dietary practices.
- Medical care and health services: Detainees should receive appropriate medical treatment, and where needed, psychological counseling. Unwell detainees who require specialized attention should be transferred to the appropriate medical facilities. A proper medical examination should be offered to detainees as promptly as possible. Screening should be done as soon as possible to identify possible survivors of torture and detainees with other special needs in order to provide the appropriate care. Detainees should be able to choose between a male or female doctor. Any health services should also include reproductive health services. Many detainees suffer psychological and physical effects as a result of their detention. Thus, care should be taken to identity the onset of depression or other illnesses resulting from detention and to provide the necessary care, including advocating for release of the person.
- Education: All children, regardless of status, have a right to access to education. Where children are detained, they should be provided with education similar to that provided to nationals. Qualified teachers should provide classes on site or children should be transferred to local schools for classes.
- Adult education and other programs: Adult detainees should have the opportunity to continue their education or have access to vocational training. Cultural and education programs should be created and implemented in detention centers.
- Recreation: Detainees should have access to recreational activities while in detention. Outdoor exercise areas should be maintained by authorities and equipment made available for exercise.
- Religious services: Detainees should have the opportunity to practise their religion. Separate facilities in detention centers should be made available for religious worship. Pastors, priests, imams and other religious personnel should be permitted regular access to detention centers to attend to the pastoral needs of detainees.
- Contact with the outside world: Detainees should be permitted to contact family, friends and counsel. Additionally, they should be permitted visits. In order to facilitate contact, detainees should be provided with phone cards. There should be space in each centre to permit visits in conditions of dignity.
- Vulnerable groups: Given the negative effects of detention on the psychological wellbeing of particular detainees, efforts should be made to seek alternatives to detention for the following groups: elderly persons; survivors of torture or trauma; persons with a mental or physical disability; pregnant women and mothers of infants and small children; unaccompanied or separated children; and victims of human trafficking;. If detained, a medical doctor should certify that detention will not be harmful to them and regular follow up care and services should be provided by skilled personnel.
- Training: All staff working with detainees should receive proper training regarding asylum, the causes of refugee movements and the situation in detainees’ countries of origin. Additionally, there should be training on methods of recognizing and responding to symptoms of stress, which detained asylum seekers and refugees may exhibit. Staff should be trained on the human rights standards applicable to detention. Detention centers should work in collaboration with NGOs to create and implement training programmes with an opportunity for participation of both during certain trainings.
The detrimental psychological effects, especially on children, have been researched and discussed. For example, see Sarah Mares and Jon Jureidini, Psychiatric assessment of children and families in immigration detention – clinical, administrative and ethical issues, 28 Australian and New Zealand Journal of Public Health 6 (2004). Available on the website of the International Detention Coalition; see Tools for Action, Children in Detention.
How should governments guarantee that the right to asylum is respected in the context of detention?
5. How should governments guarantee that the right to asylum is respected in the context of detention?
Access to fair and efficient asylum procedures is difficult when refugees and asylum seekers are in detention. They are dependent upon attorneys, legal representatives or persons working in the detention centers to come to them and to facilitate access to asylum procedures. Asylum seekers and refugees cannot easily access and present witnesses or documentation in support of their claims.
In order for governments to guarantee that detainees actually can exercise their right to asylum, they should address the following:
- Information: Shortly after being detained, all detainees should be given information about their right to ask for asylum. Such information must be presented in a language and manner that they understand. Not all asylum seekers are literate. Therefore, information should be provided in a written and an oral format, such as video-taped presentations.
- Access to counsel: Governments must facilitate easy access of attorneys and legal representatives to the detention centres. Governments should remember that providing access to legal representation is not satisfied with merely having the presence of an attorney during the merits hearing or substantive interview. Instead, he or she must be active before, during and at the end of the process. This means that the attorney must spend time interviewing the client, gathering country of origin information, developing the legal arguments and finally preparing the asylum application for presentation to the government. If the attorney does not speak the language of the asylum seeker, he or she must have access to an interpreter during preparation.
- Individualized hearing: Governments should provide individualized hearings in a setting which respects the confidentiality of the applicant and the seriousness of the procedures. Hearings should not take place in open areas in the detention centre. Rather a separate office should be provided in conditions consistent with a respect for the importance of the refugee status determination process.
- Access to effective and professional translation: Translators and interpreters should be professionally trained and should be accessible to applicants in detention throughout the procedure. In cases involving sexual or gender based violence claims, female translators or interpreters should be provided.
- Confidentiality: Governments should guarantee the confidentiality of the procedure. This means that government officials, security staff, interpreters and translators, attorneys, NGO staff, social workers and medical personnel who provide services to asylum seekers and refugees in detention are under a duty to ensure the confidentiality of the information received from or about the applicant, including the fact that the applicant has applied for asylum. In order to protect confidentially, special rooms should be made available to attorneys for visits with their clients.
- Access to judicial review: Governments must provide access to effective judicial review, ensuring that applicants continue to have legal representation throughout review and that they are advised of the review procedures and final decision.
- Procedures for special needs: Governments should create guidelines and implement procedures to deal with cases involving special needs. For example, governments should develop national guidelines, using UNHCR and other materials as guides, on issues relating to claims based on sexual and gender based violence, asylum applications filed by children, and procedures for elderly asylum seekers. Personnel involved in special needs cases, both governmental and NGO, should be trained in providing the necessary services in a sensitive manner.
6. Monitoring conditions of detention
In addition to challenging detention either through the use of national advocacy campaigns or litigation in courts, advocates may also want to consider filing complaints or reports with international bodies such as with the Office of the High Commissioner for Human Rights’ (OHCHR) Human Rights Council, and treaty-based bodies, which monitor the core international human rights treaties. The Human Rights Council is responsible for the Universal Periodic Review (UPR) process which involves a review of the human rights records of all 192 UN Member States once every four years. The UPR provides an opportunity for NGOs and others to provide information to the OHCHR on immigration-related detention issues.
Several of the OHCHR treaty-based bodies, which number eight in total, provide additional opportunities to present information regarding human rights violations committed by governments against detainees. These bodies are: the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of All Forms of Discrimination against Women; the Committee Against Torture; the Optional Protocol to the Convention Against Torture (OPCAT) – Subcommittee on Prevention of Torture; the Committee on the Rights of the Child; the Committee on Migrant Workers; and, the Committee on the Rights of Persons with Disabilities. The treaties which these bodies monitor contain many provisions which are applicable to refugees, asylum seekers and migrants in detention.
The discussion below will focus on procedures before the OHCHR Working Group on Arbitrary Detention. A treatment of the other bodies discussed above is beyond the scope of this article; however, advocates are urged to visit the OHCHR’s page on the human rights bodies. Advocates should also investigate the possibility of filing complaints with any relevant regional bodies, as well as with these international bodies.
The Working Group on Arbitrary Detention (WGAD) is based in Geneva, Switzerland, and monitors issues relating to procedural safeguards and conditions of detention. The WGAD was established in 1991 by the Commission on Human Rights with the following mandate:
- To investigate cases of arbitrary detention;
- To seek and receive information from governments, inter-governmental organizations and non-governmental organizations, and from individuals concerned, their families or representatives; and
- To present a comprehensive report to the Commission at its annual session.
The WGAD is the only non-treaty based mechanism whose mandate provides for individual complaints. It is empowered to investigate cases and receive information concerning violations of human rights specifically related to deprivation of liberty.
The WGAD is composed of five independent experts appointed by the Chairman of the Commission on Human Rights. It is assisted by the Secretariat of the Human Rights High Commissioner and holds three sessions per year, each lasting between five to eight days. For more information on the WGAD, see its Fact Sheet No. 26 – The Working Group on Arbitrary Detention.
The WGAD is empowered to investigate individual cases alleging violations of human rights standards relating to deprivation of liberty. In cases involving an individual or individuals, a communication should be sent, if possible accompanied by the model questionnaire to:
Working Group on Arbitrary Detention
c/o Office of the UN High Commissioner for Human Rights
United Nations Office at Geneva
CH-1211, Geneva 10
Once a communication is received by the WGAD, it forwards the communication to the government concerned which is given 90 days to comment and respond. If the government desires additional time, it must specifically request an extension. Extensions may be granted for an additional two months. The WGAD does not reveal the identity of the individual who filed the complaint to the government.
The reply by the government is shared with the individual filing the complaint for any additional comments. In light of the information collected, the WGAD will render an opinion determining whether or not an arbitrary deprivation of liberty has been established. If the WGAD finds a deprivation, it will issue recommendations to the government. If a person has been released, the WGAD can file the case or it can still issue an opinion. The WGAD opinions are published by the WGAD in a yearly report.
The WGAD also has an “urgent action” procedure for cases in which there are reliable allegations that a person is being detained arbitrarily and that continued detention might constitute a serious danger to that person’s health or life. In such cases, the urgent action is sent to the Minister of Foreign Affairs of the country concerned, requesting that the government take appropriate measures to ensure that the person’s right to life and physical and mental health are respected.
For communications requesting that the Working Group launch an urgent appeal on humanitarian grounds, communications should be sent to the above address or, preferably by fax to: +41 22 917 90 06.
The WGAD can also visit countries to investigate conditions of detention. However, such visits can only be done at the invitation of the government concerned. In addition to field missions, the WGAD prepares a report for the High Commissioner for Human Rights, which describes its activities and includes information on complaints filed and opinions issued.
Practice tip: There are tools available to aid advocates in monitoring detention facilities. The Association for the Prevention of Torture has published an excellent guide, Monitoring Places of Detention: A Practical Guide, which provides helpful information on how to monitor places of detention and what aspects of detention to examine in order to determine if the human rights of detainees are violated or at risk.