Detention | Advocating for decent conditions

The right to seek asylum is a  basic human right.  In pursuing this right, asylum-seekers escaping danger or persecution will often enter a territory through irregular channels if they have no other option.

The 1951 Refugee Convention states that countries shall not punish refugees and asylum-seekers if they are directly coming from the country of persecution, and if they present themselves without delay to authorities showing good cause for their irregular entry. According to an agreement reached with governments at UNHCR’s Executive Committee – known as an ‘Excom Conclusion’ – , refugees and asylum-seekers may only be detained when authorities must verify their identity, assess elements of their claim, when asylum-seekers have destroyed their travel or identity documents or have used fraudulent documents to mislead authorities. Another reason for detention may be to protect public order or national security.

But detention of asylum- seekers should be a last resort and applied for the shortest possible time.

UNHCR recommends that refugees and asylum-seekers not be detained. But today countries in Central Europe are detaining asylum-seekers, and the UN refugee agency monitors detention conditions, and the ease with which asylum-seekers can obtain free legal assistance.

According to UNHCR’s Guidelines on Detention, countries must respect the following safeguards. Asylum-seekers should be housed in separate detention facilities, and not in prisons. Nor should they be held together with convicted criminals or prisoners on remand. In detention, asylum-seekers should have access to basic sanitation, appropriate medical treatment, and psychological counselling. They should be allowed to exercise their religion, receive nourishing food, and have the ability to conduct physical exercise, both indoors and outdoors. They should be able to continue their education or vocational training, and have regular contact with friends, relatives, religious representatives, social workers, and legal counsel. They should have access to information about asylum procedures in a language they can understand, and the ability to lodge complaints about their treatment if necessary.

UNHCR recommends that children and unaccompanied minors not be detained, and urges countries to create alternative ways to care for these people during the asylum process.  The only exception to this recommendation: if it is unavoidable that parents be detained, children may be housed with them for the sake of maintaining family unity.

But children should not be detained together with other adults, and must have access to education, recreation, and play in order to alleviate stress and trauma they are no doubt experiencing. A legal guardian or adviser should also be appointed to unaccompanied minors.