UNHCR Regional Representation for Western Europe
Summary Report
Regional Conference on Alternatives to Detention
for asylum-seekers, refugees and stateless persons
Brussels, Belgium, 16 November 2011
On 16 November 2011, the Regional Representation for Western Europe of the Office of the United Nations High Commissioner for Refugees (UNHCR RRWE) organized a conference on Alternatives to Detention for Asylum-seekers, Refugees and Stateless Persons. It was a regional follow-up of the first Global Roundtable on Alternatives to Detention which was organized by UNHCR jointly with the Office of the High Commissioner for Human Rights (OHCHR) and held in Geneva on 11–12 May 2011.[1]
Over 100 participants from governments, international organizations, national and international non-governmental organizations (NGOs), and academic experts took part in the discussion. The participants included: OHCHR, the Council of Europe (CoE), the European Union (EU) Agency for Fundamental Rights (FRA), the European Commission, the International Organization for Migration (IOM), the International Detention Coalition (IDC), Amnesty International (AI), and the Jesuit Refugee Service (JRS).
The conference not only gave an overview of the existing international legal framework concerning the detention of asylum-seekers, refugees and stateless persons but also examined specific practices regarding alternatives to detention in Belgium, the Netherlands, and the United Kingdom. At the same time, a Roadmap on Alternatives to the Detention of Asylum-seekers in Belgium,[2] prepared by UNHCR, AI, the Belgian Refugee Council (BCHV-CBAR), Coordination and Initiatives for Refugees and Foreigners (CIRE), JRS Belgium, and Flemish Refugee Action (Vluchtelingenwerk Vlaanderen), was presented. This document highlights the problems caused by the detention of asylum-seekers and makes a number of recommendations intended to consolidate the alternatives to detention practices initiated by the Belgian authorities.
The following summary report does not necessarily represent the views of UNHCR or the participants, but reflects broadly the themes, issues and understandings that emerged from the presentations and discussions at the conference. The key messages of the conference can be found at the end of this report.
The conference started with an overview of the existing international legal framework including the main outcomes of the Global Roundtable on Alternatives to Detention and existing practices around alternatives to detention. Presentations were made by:
- Dr Alice Edwards, Senior Legal Coordinator, Protection Policy and Legal Advice, Division of International Protection, UNHCR, Geneva
- Mr Grant Mitchell, Director, IDC, Australia
- Mr Adriano Silvestri, Project Manager, FRA
This overview was followed by presentations on the damaging effects of detention, both for the individual as the social cost for society. Presentations were made by:
- Mr Paul d’Auchamp, Deputy Regional Representative for Europe, OHCHR, Introduction to the human rights consequences of detention
- Dr Madelyn Hicks, MD, MRC Psych, Institute of Psychiatry, King’s College London, UK, The mental health consequences of detention
- Mr Christophe Renders, Director, Jesuit Refugee Service Belgium, The social cost of detention (Devas report)
- Ms Laurence De Bauche, Lawyer - Expert, Odysseus Network, Overview of the main jurisprudence of the ECtHR and CJEU related to detention as a last resort
Two subsequent panels described concrete examples of alternatives to detention.
Presentations on alternatives to detention for vulnerable groups were made by:
- Ms Nahima Lanjri, Member of Federal Parliament (Flemish Christian Democratic Party (CD&V)), Belgium, Presentation of Belgian draft law on the non-detention of children
- Mr Humbert de Biolley, Deputy Director, Council of Europe, Brussels Office, Conditions of detention and procedural rights of detainees: Council of Europe role and input – towards alternatives to detention
- Mr Jerome Phelps, Director, Detention Action, UK, The pilot projects on alternatives to detention in Liverpool and Glasgow
Presentations on alternatives to detention within a returns context were made by:
- Mr Geert Verbauwhede, Coordinator for Identification and Removals, Aliens’ Office, Belgium, Belgian practice in not detaining families with children
- Ms Caroline Rowe, Head, Office of the Children's Champion, UK Border Agency (UKBA), Ending the detention of children: a fresh approach to managing family returns
- Mr Remco Terpstra, Policy Advisor – Senior Project Manager, Migration Policy Department, Ministry of the Interior and Kingdom Relations, The Netherlands, Recent study on the possibilities of using alternatives to detention in the Netherlands
The Concluding panel looked at the ways forward in expanding the use of alternatives to detention and included presentations and statements by:
- Mr Juan Cortes Leclou, Cabinet of the State Secretary of Budget, Migration and Asylum Policy, Family Policy and Federal Cultural Institutions, Belgium
- Mr Manfred Hähnel, Directorate General Home Affairs, European Commission
- Mr Grant Mitchell, Director, IDC, Australia
- Ms Annemarie Busser, Project Officer Migration, AI, The Netherlands
Why should alternatives to detention be used?
Detention can lead to violations of the entire spectrum of human rights from civil and political rights to economic, social and cultural rights. Prolonged administrative detention could even amount to inhuman or degrading treatment. Limited access to lawyers, interpreters, social workers, psychologists and medical staff combined with a lack of communication with the outside world exacerbate the vulnerability and isolation of detainees, even if they have not been officially classified as “vulnerable” at the time of detention.
Detention, particularly when it is prolonged, can cause severe psychological and physical health problems which have long-term costs both for individuals and for communities. In the long-term, practices of detention can also have a high social cost, because they can substantially increase the difficulty of those ultimately recognized as being in need of international protection in adapting to their new country; simultaneously, it can increase resistance to voluntary return for those not granted asylum.
Alternatives to detention address the abovementioned concerns. In addition, the IDC concludes that alternatives to detention cost less than detention (80 per cent average savings) while maintaining high rates of compliance and appearance (90 per cent average compliance rates).[3] These mechanisms reduce the financial and human cost of immigration detention while meeting government and community expectations.
Alternatives to detention– recent examples in Western Europe
Under international human rights law, the deprivation of liberty should in all cases be considered as a measure of last resort and should only be imposed if this is based on an individual determination. Authorities should examine carefully the necessity, proportionality and legitimacy of the decision to detain. If these criteria are met,, alternatives to detention should then be explored. In this context, it is also important that human rights principles guide the application of alternatives to detention to ensure that it is a true alternative to detention, rather than an alternative of detention.
In October 2008, the Government of Belgium launched a pilot project with eight[4] semi-open “Return Houses” or family units, which are individual houses or apartments for families with minor children. The families were illegally present on the Belgian territory and awaiting return or a transfer under the Dublin II Regulation.[5] In October 2009, the Government extended the pilot project to include asylum-seeking families with minor children arriving at the border who do not comply with the conditions to enter the territory and who are not “removable” within 48 hours of arrival.
Government staff are not constantly present and families are allowed to go in and out of their accommodation. The families are in close contact with a so-called “return coach” (supporting officers) who assists the families with the preparation of their return, legal questions, logistical matters, etc. The coaches cooperate closely with IOM for voluntary return, although return is not the only focus. The coach will address the different options for each family: asylum procedure, regularization and voluntary return. This engagement strategy has increased the number of families returning voluntarily and, for families seeking asylum, has also lead to an increased recognition rate. The Aliens’ Office and NGOs are relatively positive about this alternative to detention, but there are concerns about the large number of absconding (25 per cent, while under the Dublin Regulation, the percentage is 53 per cent).
The Government of the Netherlands is planning to test the following alternatives to detention through pilot projects in the course of 2012: return case management, bail, return projects of NGOs, and accommodation in a location with restricted freedom of movement. Electronic monitoring is still being researched. The population targeted in these pilot projects is irregular migrants, including rejected asylum-seekers.
As of March 2011, the Government of the United Kingdom has a new family returns process for families who no longer have a right to stay in the UK. The new process involves four stages starting with the first contact with a family and focusing on collecting information on the family so that a tailored return plan can be designed, on building trust and engaging with the family, explaining responsibilities and available return options, and working together with partners that can help and have relevant expertise.
During the first “decision” stage, a contract is made between the UKBA and the family agreeing the process involved. In stage two – “assisted return” – a family conference takes place to explain the return options and to manage any barriers; parents are encouraged to talk to their children about what is happening. During stage three – “required return” – families receive two weeks’ notice of removal in order to fully prepare themselves and their children for departure. Families are offered the chance to manage their own return with a self check-in removal (by providing them only with the flight details, the family members are given as much autonomy as possible to organize themselves). If at the end of stage three, the family has not yet returned to their country of origin, the family will enter stage four – “ensured return” – at which a newly created Family Returns Panel will, independently of UKBA, examine and advise on the best method of ensuring a return. New ensured return options include limited notice, open accommodation and pre-departure accommodation. UNHCR is currently carrying out a full evaluation of the family asylum decision making; the report is due by May 2012.
Key messages from the conference
1. Detention of asylum-seekers, refugees and stateless persons should be avoided and may be resorted to only on grounds prescribed by law.
2. In case of detention it is important that detention and alternatives to detention conform to both international and European human rights standards.
3. Monitoring bodies, such as the Committee against Torture and its Sub-Committee, the Working Group on Arbitrary Detention, the Special Rapporteur on Torture, the Human Rights Committee, the European Committee on the Prevention of Torture and the Council of Europe’s Human Rights Commissioner, as well as national monitoring mechanisms, all have an important role to play in monitoring the detention of asylum-seekers and promoting alternatives to detention.
4. It is necessary to build up asylum-seekers’ trust in the asylum procedure and strengthen their perception of its effectiveness and fairness in order to secure their full engagement in the process and their acceptance of the result.
5. Some interventions referred to the present contradictory situation in the European Union (EU) legal framework, whereby stronger guarantees and references to detention as a last resort are set out in the Returns Directive[6] than in the framework of the Asylum Procedures Directive.[7] Today, rejected asylum-seekers and irregular migrants in the EU are better protected against detention, than asylum-seekers in the asylum procedure.
6. It is a reality that it is possible to manage migration systems in a humane way with best outcomes in the majority of cases.
Specific messages related to the negative consequences of detention
7. No empirical evidence supports the idea that detention deters people from seeking asylum or deters irregular migration.
8. Empirical data on the damaging effects on the physical and mental health of asylum-seekers, refugees, and stateless persons exist.
9. Detention has an independent effect on trauma and health problems existing before detention. The effects continue long after detention has ended, especially for children.
10. Detention creates a lack of trust in the system, whether this be the asylum procedure or the removals process. It leads to the criminalization of asylum-seekers, even though seeking asylum is not a crime and asylum-seekers should not be penalized for seeking asylum by being held in detention.
11. Asylum-seekers in detention are often less informed about their rights and have more restricted access to lawyers, which can have negative consequences on their ability to obtain international protection.
12. Adequate mental healthcare cannot be provided in detention.
13. The lack of a known end date to detention has a particularly detrimental effect on asylum-seekers and stateless persons.
Specific messages relating to the minimum requirements regarding alternatives to detention
14. There is a need for more research into alternatives to detention, for instance, to assess how alternatives to detention which exist in law are implemented in practice and how many people are able to benefit from them.
15. The use of alternatives to detention for asylum-seekers, refugees and stateless persons helps avoid the negative effects of detention.
16. All alternatives to detention should be established in law and subject to judicial review, as well as independent monitoring and evaluation. A clear legal framework for alternatives to detention is needed to avoid discretionary systems which may be implemented in different ways over time.
17. Individual case management, screening, trust, and transparent communication are key components for the successful use of alternatives to detention, as is collaboration among local authorities, social services, health services, police, NGOs, and the community.
18. The IDC's five-step Community Assessment and Placement model offers a useful framework for assessing when it may be necessary to detain an asylum-seeker.[8] This starts out by assuming that detention is not necessary and then identifies individual circumstances which need to be in place if detention is to be used as a last resort.
UNHCR Regional Representation for Western Europe, 30 December 2011
[1] For further information and documentation, see http://www.unhcr.org/3e5f78bc4.html and for resulting “Summary Conclusions”, see http://www.unhcr.org/refworld/docid/4e315b882.html.
[2] UNHCR, AI, BCHV-CBAR, CIRE, JRS Belgium, VwV, Alternatives to the Detention of Asylum-seekers in Belgium, November 2011, at http://www.unhcr.be/fileadmin/user_upload/pdf_documents/UNHCR-Alternatives_to_Detention-Roadmap-Belgium-ENG.pdf.
[3] IDC, There are alternatives : a handbook for preventing unnecessary immigration detention, 2011, pp. 22, 39 (example USA), 40 (example Australia), 44 (example Canada), 52, at http://www.unhcr.org/4dde23d49.html
[4] At present, there are 15 units in use, fully equipped and furnished.
[5] Commission Regulation (EC) No. 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, 2 September 2003, 1560/2003, at http://www.unhcr.org/refworld/docid/47fdfacc3.html.
[6] EU, Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, 16 December 2008, 2008/115/EC, at http://www.unhcr.org/refworld/docid/496c641098.html.
[7] EU, Council of the European Union, Council Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status, 2 January 2006, 2005/85/EC, at http://www.unhcr.org/refworld/docid/4394203c4.html.
[8] IDC, There are alternatives : A handbook for preventing unnecessary immigration detention, footnote 3.
