Detention
Promoting alternatives, especially for children

Detention of people in need of protection remains a pressing concern for JRS worldwide, particularly in the regions of Europe, the USA, Southern Africa and Asia Pacific. Asylum seekers, undocumented migrants and refugees are taken into detention even if they have committed no crime and pose no danger to the community.

Immigration detention is inflicted upon women with young children, unaccompanied minors and other vulnerable individuals, such as the elderly and people with disabilities. Migrants and refugees are often detained in appalling conditions for extended periods without recourse to legal assistance.

Depending on needs, circumstances and access, JRS provides pastoral, medical, psychosocial and legal services in immigration detention centres, with special attention given to the most vulnerable. JRS monitors the situation of detainees and lobbies international organisations, such as UNHCR, to attend to their needs and to speed up the refugee status determination and resettlement of sensitive and urgent cases.

JRS advocates for governmental compliance with international human rights laws relating to freedom of movement and detention standards, and for the use of humane alternatives to immigration detention.

  • JRS position
  • In practice
  • Coalition
JRS Working Paper on Detention

All over the world, asylum-seekers, undocumented migrants and in rare cases refugees, are taken into detention even if they have never committed a crime. This includes women and children.

For the purpose of this working paper 'administrative detention' shall be defined as a situation in which a non-citizen is confined within a narrowly-bounded or restricted location, and where s/he experiences a deprivation of liberty. This measure must be taken for administrative reasons and not as a measure of the criminal justice system.

The positions enumerated below shall apply to the administrative detention of refugees, asylum seekers and undocumented migrants while they are in the territory of a State, or prior to being admitted to the State’s territory.

Detainees (asylum seekers, undocumented migrants and refugees) are susceptible to hazardous psychological stress. The longer they are detained, the worse their condition becomes. Detention does not just harm people with 'special needs'. The myth that 'single young men' are not vulnerable no longer holds. Detainees suffer from weight loss, insomnia, migraines and depression due to severe psychological stress.

Detention centre staff describe how detention visibly affects the health of detainees. Unlike persons sentenced to serve prison terms for criminal infractions, the majority of detainees do not know when they will be released from detention. This undoubtedly leads to psychological harm.
Under these conditions, a fair asylum procedure is impossible. Hence detention becomes not only a humanitarian, but also a human rights issue.

One concern for JRS is also that many countries continue to detain or otherwise penalise asylum seekers for entering their territory without proper documentation. JRS is especially concerned about the push-backs of people in need of protection who are intercepted at sea and sent to a country where they are not guaranteed access to asylum.

This is in violation of international refugee law which guarantees asylum seekers the right to seek asylum and to access asylum procedures, regardless of how they entered a country (most notably Art. 31 of the 1951 Refugee Convention).

The involvement of JRS
As part of our accompaniment of persons in need, JRS in some countries provides direct services (e.g. medical, release, etc.). The organisation monitors the situation of detainees and offers pastoral care as well as legal counsel whilst lobbying various international organisations, e.g., the UNHCR, to pay attention to their needs and to speed-up refugee status determination and resettlement of very sensitive/urgent cases.

In these ways JRS is active in assisting detainees in immigration detention centres in many countries where we operate, e.g., in USA, Thailand, Germany, Australia, Indonesia, Malta, Southern Africa and Eastern Africa. In 2005, JRS helped to establish the International Coalition on Detention of Refugees, Asylum-Seekers and Migrants. JRS advocates for governments to comply with international human rights standards relating to freedom of movement, and for detention standards consistent with human rights law.

Necessary changes
  • With regard to detention, the following principles should be applied:
  • Anyone who is fleeing from severe human rights violations has an inalienable right to seek protection in another country;
  • Anyone who is fleeing from severe human rights violations has a right to be heard and have access to an asylum claim (against the trend of push-backs);
  • Individuals and their families shall not be punished, administratively or criminally, for submitting an asylum claim by the national authorities of the country in which they seek protection;
  • Authorities of the countries of reception shall take the utmost care to provide for the well-being and safety of asylum applicants;
  • Children who seek asylum in another country, whether they are accompanied or not, and by reasons of their physical and mental vulnerability, require the provision of special safeguards and care, including appropriate legal protection and the unity of the family, to the extent that it is in the best interest of the child.
  • In some countries, as well as on the regional (e.g. Europe) and global level, alternatives to detention (such as bail or regular reporting) are increasingly discussed. UNHCR in particular is currently doing a lot of work on developing a system of alternatives. JRS very much welcomes these initiatives and calls on governments to support this work and to introduce such alternatives in their domestic law.
Recommendations / talking points
  • From the application of principles described above, the following recommendations derive:
  • No refugee shall be detained for the sole reason that s/he is a person seeking protection.
  • No asylum seeker shall be detained during his or her asylum procedure if they have not committed a crime.
  • Administrative detention shall not be used as a deterrent against persons who seek asylum.
  • Administrative detention of irregular migrants shall be avoided to the utmost extent possible.
  • If detention cannot be avoided, it should only be used in accordance with the principle of proportionality. Therefore detention may be considered lawful only if it is appropriate, necessary and reasonable.
  • Legislation shall provide for, and policy makers shall implement alternatives to detention that respect human dignity and fundamental human rights.
  • Families with children shall not be detained in closed detention centres. Family unity shall be maintained at all times, as long as it is in the best interest of the child. Alternatives to detention must be found in the case of families.
  • Unaccompanied minors, including age-disputed minors, must never be detained.
  • Vulnerable persons such as minors, pregnant and lactating women, traumatised persons, persons with special physical or mental health needs, persons older than 65 years and chronically or seriously ill persons, must never be detained. If a detainee becomes vulnerable in detention, s/he must immediately be released and provided with necessary assistance outside the detention centres.
  • A person may be detained only if there has been a prior decision by an independent judicial authority. If a prior judicial decision cannot be obtained, the person’s detention shall be subject to an automatic review before a judicial body that is readily accessible and effective, at a time not exceeding 48 hours after the detention measure is ordered.
  • The detention order shall be subject to subsequent automatic reviews by a judicial authority at least once every 30 days.
  • Detainees shall be provided with timely and free legal assistance that meets an adequate quality standard, and shall be immediately informed of the reasons for his or her detention and the legal means of challenging the detention order, in a language the person understands. The costs for competent professional interpretation shall be covered by the State.
  • Administrative detention shall be as short as possible, and in every case, shall not exceed two months.
  • Living conditions in detention centres such as nutrition, accommodation, access to mental and physical health care, privacy, telephone and access to indoor as well as outdoor activities, shall comply with basic human rights standards and should not resemble a prison-like environment. Detainees shall have access to education and shall be able to practise their religion. A set of formal rules should govern the relations among detainees and between them and the staff.
  • Detainees shall have the right to receive visits from the outside world, including social, familial and pastoral visits. Detainees shall also have the right to contact the outside world by telephone or by mail. Simultaneously, representatives of relevant non-governmental organisations and of the UN refugee agency (UNHCR) shall be granted access to detention facilities without being required to name a particular person they want to see.
  • International, regional and national monitoring mechanisms and bodies shall be established to monitor independently the use of administrative detention for asylum seekers and irregular migrants, and to inspect places of administrative detention.
References / useful websites
JRS Europe has set up a special website on the detention issue where you can find regularly updated materials such as the report on 'Detention of Vulnerable Asylum Seekers' (DEVAS). See http://www.detention-in-europe.org.

On a global level, the International Detention Coalition (of which JRS is a founding member) provides a range of useful materials at http://idcoalition.org/
In practice – JRS responses

In Australia, for example, JRS is calling for an end to the use of Christmas Island as a reception and processing centre, and for the transfer of detainees held there to the mainland, where better detention conditions are available. In 2005, JRS was instrumental in setting up the International Coalition on Detention of Refugees, Asylum Seekers and Migrants.

In 2010, JRS published an in-depth study on the vulnerability of those in detention based on interviews with 685 individuals detained in 21 European countries. The study reveals that detainees are likely to suffer from depression, anxiety, stress, insomnia, loss of appetite and deterioration to their wellbeing. JRS Europe has disseminated this study to politicians and policymakers in the EU, in order to advocate for the adoption of new legal standards that would reduce the use of detention, and provide better protection for those who are detained.

JRS Germany has established a Legal Aid Fund to assist detained individuals with their asylum and/or immigration cases. In 2009, the fund paid legal assistance for 138 detainees; 86% were subsequently released from detention.

JRS chaplaincy programmes provide pastoral and religious assistance to meet the needs of non-citizens detained in three US federal detention centres and a Los Angeles County detention centre. JRS USA led efforts to ensure appropriate pastoral care is provided to detained immigrants, refugees, and asylum seekers during their incarceration in federal detention centres.

Since the use of immigration detention has more than tripled over the past 10 years, three quarters of those detained are now held in contract facilities or county jails where they do not have access to federal chaplaincy programs. Our research and advocacy highlighted an inequitable system in which pastoral and religious services varied widely from facility to facility.

Through advocacy directed at the US Congress and the Department of Homeland Security, JRS preserved both the funding for religious services and access to appropriate pastoral care and raised the need for consistent and equitable access for immigrants detained in over 200 private detention facilities.

JRS Indonesia accompanies detainees in one immigration detention centre, giving psychosocial support and organising sport activities. The team has held discussions with the head of the centre about how to improve the detainees’ living conditions. JRS promotes the release of vulnerable people, including women and children, and provides housing and food for asylum seekers living in the community.
International Detention Coalition

Governments increasingly detain refugees, asylum seekers and migrants upon entry to the country and while final asylum decisions or other requests to remain in the country are pending.

Hundreds of thousands of people are held in administrative detention centres and closed camps around the world where living conditions frequently fall below international human rights standards and restrictions are placed on access to asylum for people in need of protection from serious human rights abuses.

Men, women and children, the elderly and disabled – the great majority of whom have committed no crime – are held against their will in removal centres, immigration detention centres, jails, prisons, police stations, airports, hotels, ships and containers pending a final decision on their cases or removal from the country that may take months or years to effect, often in overcrowded and unhygienic conditions. Several governments around the world host large refugee populations and often place significant limits on the movement of resident refugees.

Cost of detention

Apart from the extremely negative human costs (psychological, physical and social) of detention, it is very expensive in financial terms. Alternatives to detention are much more cost-effective.

With regard to encamped refugees, keeping refugees in closed camps has economic implications for both the refugees and host communities, because refugees could be self-sufficient and contribute to the local economies. Refugees who have been de-skilled by effective "warehousing" policies lose their economic capacity at great expense to their current and future human potential. This cost is borne by the country of asylum if they are unable to return to their country of origin or be resettled in a third country.  Years of enforced idleness also undermine their ability to successfully re-integrate in their home countries, should conditions improve, or integrate into countries of resettlement.

Recommendations
Under international law, governments do have the right to protect their national sovereignty. However, also enshrined in international law is the right to seek and enjoy asylum. Moreover, international laws protect against arbitrary and unlawful detention.

To governments
  • Never use threats of detention to deter people fleeing human rights abuses from seeking asylum;
  • Avoid the use of detention and seek alternatives to detention, e.g. supervised release, open centres etc;
  • Where absolutely necessary, and where all other alternatives have been exhausted, ensure that detention is used only for identification or legitimate removal purposes, is subject to ongoing judicial oversight, and does not exceed a reasonable time limit;
  • Do not detain individuals solely because they have applied for asylum - particularly vulnerable individuals such as children, torture and trauma survivors, pregnant women, the physically infirm and the mentally ill;
  • Permit access to detention facilities by civil society organisations, legal representatives, representatives of religious institutions, and friends and families of detainees;
  • Sign and observe the Optional Protocol to the Convention Against Torture, which provides for regular visits to and monitoring of detention centres;
  • Provide conditions of detention that comply with basic human rights standards, including access to a lawyer, healthcare, education, and adequate food and water;
  • In particular to governments of industrialised countries - provide additional development assistance for refugee-hosting areas in developing countries, encouraging host governments to permit refugees more freedom of movement;
  • In particular to governments of developing countries - move from policies of encampment of refugees towards policies that allow refugees to become self-reliant.

To humanitarian agencies
  • Join the international coalition on detention of refugees, asylum seekers and refugees established by leading refugee and human rights organisations (www.idcoalition.org) and join in their advocacy work;
  • Seek access to detention facilities in order to provide care and services for detainees;
  • Alert the UN Working Group on Arbitrary Detention regarding any specific abuses you encounter.

To the general public
  • Learn about your own government's policy on detention;
  • If detention is used in your country to deter asylum seekers and refugees, raise public awareness of the effects it has on detainees and urge your political representatives to ensure human rights standards are respected;
  • Establish visitor groups in your area to visit detainees;
  • Visit the above website of the international coalition and support its work.