Note on Accession to International Instruments and the Detention of Refugees and Asylum-Seekers

SUMMARY

The present Note contains one chapter dealing with accession to international instruments (paragraphs 1 - 24) and one chapter dealing with the detention of refugees and asylum-seekers (paragraphs 25 - 51). Both of these subjects are proposed for discussion at The eleventh meeting of the Sub-Committee.

ACCESSION TO INTERNATIONAL INSTRUMENTS

Introduction

1          In 1977, the Executive Committee of the High Commissioner's Programme adopted Conclusion No. 4 on international instruments relating to refugees in which it, inter alia, noted that a large number of States had still not become party to the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees and recommended that the High Commissioner undertake a concerted and determined initiative at the highest level to promote further accessions. Since that time the Executive Committee has, in numerous Conclusions, reiterated its appeal to States to accede to international instruments of benefit to refugees. It is in view of the importance of the subject that the topic of accession to international instruments has once again been submitted for consideration by the Sub-Committee at its eleventh meeting.[1]

2          In extending international protection to refugees the High Commissioner seeks to ensure that they are treated according to recognized minimum standards. These standards are defined largely in legal instruments which have been adopted on the international plane. Principal among these are the United Nations 1951 Convention and the 1967 Protocol relating to the Status of Refugees. The standards of treatment defined in these instruments have been complemented by standard-setting conventions, agreements and recommendations adopted both at the universal and at the regional levels.

3          In exercising his international protection function, the High Commissioner not only seeks to ensure that refugees are treated in accordance with recognized minimum standards, but also to promote the development and further strengthening of these standards. The High Commissioner thus played an active role in regard to the preparation of the 1951 Convention and the 1967 Protocol and seeks to promote accessions to these instruments as well as the withdrawal of reservations and of the geographical limitation (see paragraphs 9 and 10 below). He also seeks to encourage the preparation and adoption of standard-setting instruments at the regional level.

The United Nations Convention of 1951 Relating to the Status of Refugees and its Protocol of 1967

4          As indicated above, the main international instruments relating to refugees are the 1951 Convention and the 1967 Protocol. These instruments give a general and universally applicable definition of the term "refugee" and incorporate the fundamental principle of non-refoulement. They contain provisions dealing with a variety of matters affecting the day-to-day life of the refugee including gainful employment, public education, public relief, labour legislation and social security. They also state in unequivocal terms (Convention: Article 2) that every refugee must conform to the laws and regulations of the country in which he finds himself as well as to measures taken for the maintenance of public order. Article 35 of the Convention and Article II of the Protocol call upon Contracting States to co-operate with the Office of the High Commissioner, in particular in facilitating its duty of supervising the application of the provisions of these instruments. Through their wide material scope and universal character these instruments constitute the cornerstone of international protection.

5          The need for the greatest number of States to accede to the Convention was already recognized at the time of its elaboration.[2] For this reason the drafters sought to define basic minimum standards for the treatment of refugees while at the same time not imposing on Contracting States obligations going beyond those which they could reasonably be expected to assume. In addition they provided for the possibility of introducing reservations which may also make it easier for States to accede (see paragraph 10 below).

6          The importance of further accessions to the 1951 Convention and the 1967 Protocol has repeatedly been recognized by the Executive Committee. In a number of resolutions concerning the Annual Report of the High Commissioner, the United Nations General Assembly has appealed to States to accede to these instruments. Accession to these instruments implies a commitment to and a reinforcement of the fundamental principles which they embody. It also underlines the importance attached by the acceding State to international efforts to solve refugee problems. Finally, accession by the largest possible number of States would be a further reflection of the universal character which the refugee problem has now assumed.

7          Accession to the Convention and Protocol is particularly desirable in regard to States confronted with major refugee problems as it implies a commitment to international solidarity and co-operation in seeking appropriate solutions. It would thus greatly facilitate the High Commissioner's efforts to mobilize international assistance to address a particular refugee situation in the acceding country. Accession by States not confronted with major refugee problems is also of significance since it serves to increase the general awareness of the special legal status of refugees and, on the universal level, to reinforce the legal framework for their protection.

8          With the accession of Equatorial Guinea on 7 February 1986, the succession of Tuvalu on 7 March 1986 and the accession of Papua New Guinea on 17 July 1986, the number of States party to one or both of these instruments has risen to 100, of whom 37 are members of the Executive Committee. The High Commissioner has further been advised that a number of other States are also considering accession. The 1951 Convention and the 1967 Protocol cannot, however, be regarded as having acquired a truly universal character until all or most of the Member States of the United Nations have become party to them.

9          It may be recalled that the 1951 Convention contains a 1951 dateline and provides that States on becoming party may introduce a geographical limitation, restricting the application of their obligations under the Convention to persons who have become refugees as a result of events occurring before 1951 in Europe. The 1951 dateline and the geographical limitation were not, however, intended to detract from the potentially universal character of the Convention but merely reflected the concern of Contracting States to limit their obligations to the then-existing refugee situations. With the subsequent emergence of new refugee situations in different areas of the world, the 1951 dateline proved to be an increasingly serious obstacle to the effective protection of refugees, and it was therefore removed by the 1967 Protocol to which 97 States have now become party. At the same time the geographical limitation has been progressively withdrawn. Today only seven of the 100 States party to the Convention and/or Protocol maintain this restriction.

10        Article 42 of the Convention provides for the possibility of introducing reservations to articles of the Convention other than those considered to be of fundamental importance, i.e. the refugee definition (Article 1) and provisions relating to non-discrimination (Article 3), access to courts (Article 16 (1)) and non-refoulement (Article 33). The possibility of making reservations was introduced precisely to facilitate accession by States which might, for understandable reasons, not consider it possible to accept the obligations defined in any particular article. A number of governments have found it necessary to introduce reservations to certain articles, frequently as regards economic and social rights, in order to take account of the special conditions prevailing in their respective countries at the time of ratification or accession. As a result of positive developments in economic or social conditions or changes in national legislation, many of these reservations have been progressively withdrawn. Such withdrawals, insofar as they are possible, are to be encouraged since they serve further to strengthen the international legal framework for the treatment of refugees.

11        Finally, it should be mentioned that accession may not in itself be sufficient to ensure that the standards defined in the Convention and Protocol are fully applied. In order to ensure such effective implementation it is desirable that the provisions of these instruments be reflected in national legislative and/or administrative measures. The importance of such national implementing measures has repeatedly been stressed by the Executive Committee and it is gratifying to note that such measures have either been adopted or are under consideration by a number of States party to these basic international refugee instruments.

Other international instruments defining standards for refugees

12        As mentioned above, the 1951 Convention and the 1967 Protocol are complemented by various international instruments of relevance to refugees adopted at the universal level. The most noteworthy of these instruments are the 1957 Hague Agreement and the 1973 Protocol relating to Refugee Seamen, the 1954 Convention on the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. The High Commissioner also seeks to promote further accessions to these instruments.

Standard-setting instruments adopted at the regional level

13        A number of instruments defining standards for the treatment of refugees have also been adopted at the regional level. Such instruments are of particular value insofar as they reflect the specific problems existing in the area and supplement the standards already defined at the universal level.

14        Of special importance is the 1969 OAU Convention governing the specific aspects of refugee problems in Africa. This Convention, adopted by the Assembly of Heads of State and Government of the Organization of African Unity, was elaborated in order to permit African states to face more effectively the various refugee problems which arose on the African continent following independence. The Convention takes specific account of the needs of the African countries in meeting refugee problems and reflects the generosity of the African peoples in granting hospitality to those in distress. In introducing important provisions dealing with asylum, the refugee definition, burden-sharing, voluntary repatriation and the activities of refugees, it represents an important complement to the 1951 Convention. To date, 33 African States are party to this regional instrument.

15        In addition to the OAU Refugee Convention, the International Conference on the situation of refugees in Africa held at Arusha, Tanzania, in 1979 adopted important recommendations relating to the legal status and protection of refugees and to assistance and solutions for refugees in Africa. With regard to legal status and protection, the Conference, inter alia, stressed the fundamental importance of the principles relating to asylum defined in the 1969 OAU Refugee Convention and reaffirmed the need to ensure the increased effectiveness of these principles through their incorporation into national law. It also stressed the importance of the scrupulous observance of the principle of non-refoulement and reaffirmed the principle that the granting of asylum is a peaceful and humanitarian act. These recommendations, which have been the subject of active follow-up by the OAU, in close co-operation with UNHCR, represent an important step in the development of refugee law and the protection of refugees in Africa.

16        In Asia, principles concerning the treatment of refugees were adopted in Bangkok in 1966 by the Asian-African Legal Consultative Committee (AALCC). These principles, known as "the Bangkok Principles", deal, inter alia, with the definition of the term "refugee", expulsion and deportation and the right of return, and have taken their place among the basic documents of international refugee law. The problems of refugees continue to be considered by the AALCC in close co-operation with UNHCR. In 1980, the Round Table of Asian experts on current problems in the international protection of refugees and displaced persons adopted important declarations on pirate attacks on refugees and displaced persons and on the international protection of refugees and displaced persons in Asia. The following year, a Working Group established by the Round Table to follow up on its recommendations and conclusions met under the auspices of the International Institute of Humanitarian Law and UNHCR and adopted a report dealing, inter alia, with the refugee definition, non-refoulement, durable solutions, the activities of refugees and international solidarity and burden-sharing. The declarations of the Round Table and the Working Group's report both represent valuable contributions to standard-setting efforts in the region.

17        In Europe, the Council of Europe has devoted particular attention to the problems of refugees and to the need for defining appropriate legal standards for their treatment. As regards legally-binding instruments, particular mention should be made of the 1959 Agreement on the Abolition of Visas for Refugees and the 1980 Agreement on the Transfer of Responsibility for Refugees. In addition, the Committee of Ministers has adopted numerous recommendations and resolutions concerning, inter alia, asylum, the harmonization of national determination procedures, and the acquisition by refugees of the nationality of their country of residence. The Parliamentary Assembly has also adopted a number of recommendations and resolutions concerning refugees which have made an important contribution to standard-setting efforts.

18        In Latin America, among various regional conventions dealing with asylum and refugees, the American Convention On Human Rights of 22 November 1969, also known as the "Pact of San Jose", is of particular note. This Convention, adopted under the auspices of the Organization of American States, enshrines the principle of non-refoulement and includes provisions on asylum. More recently, the Colloquium on Refugees in Central America, Panama and Mexico, held under the auspices of the Colombian Government in November 1984, adopted the "Cartagena Declaration on Refugees". This Declaration contains important statements of principle regarding asylum, the refugee definition, and non-refoulement.

19        The High Commissioner greatly appreciates the close co-operation which exists between his Office and the various regional organizations referred to above and hope's that future joint efforts will lead to the further development of appropriate legal norms for the treatment of refugees in a regional context.

Conclusion

20        International instruments defining standards for the treatment of refugees are important as they help to ensure that refugees are granted basic human treatment. They also facilitate the exercise of the High Commissioner's international protection function.

21        The principal international instruments defining standards for the treatment of refugees are the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees to which 100 States in different areas of the world have now become party. It is to be hoped that more States, and especially those confronted with major refugee problems, will accede to these instruments, thereby further strengthening the international legal framework for the treatment of refugees and reaffirming the universal character of these instruments. It is also to be hoped that States will give serious consideration to the possibility of withdrawing reservations and the geographical limitation where these are still maintained.

22        The standards defined in the 1951 Convention and the 1967 Protocol are complemented by those set out in various other international instruments of relevance to refugees adopted at the universal and regional levels. The adoption of standard-setting instruments at the regional level is of particular value as such instruments take account of the special character of refugee problems existing in the area. Further accession by States to regional instruments of relevance to refugees, notably the 1969 OAU Refugee Convention, the Pact of San Jose and various agreements adopted within the framework of the Council of Europe, would be of importance in ensuring the effective protection of refugees in the particular region. It is also to be hoped that consideration will be given, as appropriate, to the preparation of further regional standard-setting instruments to complement the standards adopted at the universal level.

23        The effective implementation of internationally-recognized standards for the treatment of refugees frequently requires the adoption of appropriate e High Commissioner national legislative and/or administrative measures. The High Commissioner greatly welcomes the fact that such measures have been adopted by a large number of States and are now under active consideration by various other countries.

24        The standards for the treatment of refugees defined in international instruments adopted at the universal and regional levels and also in national legislation and administrative practice are an essential component of international refugee law. The progress already made in defining and in further developing these standards represents a major achievement by the international community in the humanitarian field.

DETENTION OF REFUGEES AND ASYLUM-SEEKERS

Introduction

25        In recent years the High Commissioner's attention has increasingly been drawn to situations in which asylum-seekers and refugees find themselves in detention. From a recent survey undertaken by UNHCR through its Field Offices in forty-five countries, it appears that several thousand refugees and asylum-seekers throughout the world are currently the subject of different types of detention measures. For the purposes of the present Note, the word "detention" is employed to signify confinement in prison, closed camp or other restricted area, on the assumption that there is a qualitative difference between detention and other restrictions on freedom of movement.

26        Measures of detention of asylum-seekers and refugees are taken in a variety of circumstances. Individual asylum-seekers may be detained due to their illegal entry into or presence in, the territory of the State where they wish to request asylum. In situations of large-scale influx, asylum-seekers are often subjected to various restrictions on their freedom of movement which, in certain instances, amount to "detention". Certain problems linked to that of detention have arisen where refugees who have been permitted to remain in a country on a perm anent basis are accommodated in refugee settlements subject to various restrictions on their freedom of movement. There are also instances in which refugees who have lawfully resided in a country are detained in connection with expulsion measures. Finally, refugees may be detained or imprisoned in connection with ordinary criminal charges or sentences.

27        In 1980, UNHCR, in its Note on International Protection (A/AC.96/579, para. 5), called the attention of the Executive Committee to the practice, followed by a number of States, of generally regarding asylum-seekers as illegal immigrants. This practice frequently resulted in asylum-seekers being exposed to a number of difficulties including serious measures such as detention and expulsion. In 1981 the problem of the protection of asylum-seekers was addressed by the Executive Committee in the context of situations of large-scale influx. The Executive Committee made detailed recommendations on the treatment of asylum-seekers in such situations which are also of relevance to the detention issue and will be further considered below (see paragraphs 39, 40, 48 and 50).

28        In the Note on International Protection submitted to the Executive Committee in 1983 (A/AC.96/623, para. 5), the High Commissioner stated that the detention of refugees and asylum-seekers merely because they were regarded as illegal immigrants continued to present a serious problem. In some countries, asylum-seekers might be released once the bona fide character of their claim was established. Elsewhere, asylum-seekers were automatically detained for indeterminate periods without any distinction as to whether or not their claim to refugee status was well-founded.

29        As mentioned in the 1984, 1985 and 1986 reports by the High Commissioner to the General Assembly (Documents A/39/12, A/40/12, A/41/12), no marked improvement in the overall situation could be discerned during this period. Widespread resort to detention practices - sometimes aimed at deterring further arrivals - has become increasingly frequent as have instances in which detention has, for a variety of reasons, become unduly protracted.

30        In view of the dimension which the problem of detention of refugees has now assumed and of the humanitarian issues involved, the High Commissioner has submitted the subject for consideration by the Sub-Committee of the Whole on International-Protection at its eleventh meeting.

Detention of asylum-seekers

31        It is recognized that when persons leave their home country in order to seek asylum elsewhere as refugees it may not always be possible for them to follow established legal procedures. Due to the fact that he finds himself in a situation of flight and in search of protection, the position of the asylum-seeker differs fundamentally from that of the ordinary alien, an element which needs to be taken into account as far as penalties for illegal entry and measures of detention are concerned. These various considerations are reflected in Article 31 of the 1951 Convention which provides:

"1.           The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2              The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country."

32        It follows from these provisions that the detention of asylum-seekers who come "directly" from a country where their life or freedom was threatened should not be automatic and should not be unduly prolonged since after their claim has been examined they may prove to be refugees entitled to benefit from the provisions of Article 31.[3] Initial restrictions on the freedom of movement of asylum-seekers may be justified for administrative reasons, e.g. to verify identity and to establish the basis of the claim to asylum/refugee status. Thereafter, restrictions on movement require further justification [4] They should also ensure that the refugee is given every possibility to find a solution to his or her plight. In this regard, paragraph 2 of Article 31 specifically requires the Contracting States to allow refugees, who enter the territory under the conditions provided for in paragraph 1, a reasonable period and all necessary facilities to obtain admission into another country. This can be taken to mean that they should be given access to the representatives of other States to which they could be admitted and also to UNHCR.

33        The survey undertaken by UNHCR also shows that only few States have taken any steps to ensure that the principles defined in Article 31 are fully reflected in their national legislation. In addition, it frequently occurs that the necessary distinction is not made either in law or in administrative practice between asylum-seekers and ordinary aliens seeking to enter the territory. The absence of such a distinction may, and in many cases does, lead to asylum-seekers being punished and detained for illegal entry in the same manner as ordinary aliens.

34        In many areas of the world asylum-seekers are thus subjected to measures of detention which are not justified by the circumstances of the case and are detained for unduly prolonged periods, for example through confinement in airport transit lounges or in specially constructed airport detention facilities. There are also indications that measures of detention are being taken for "deterrent" purposes in order to discourage further arrivals.

35        In 24 of the 45 countries surveyed by UNHCR appeals against detention, either administrative or judicial, were available. Such appeals, of course, provide an important safeguard against unjustified or prolonged detention. In this connection reference may appropriately be made to the 1979 Arusha Conference on the situation of refugees in Africa which recommended that refugees should not be subject to legislative or administrative measures affecting prohibited immigrants, and expressed concern that, in many cases, measures of detention were not covered by ordinary administrative or judicial remedies (A/AC.96/INF.158 - Recommendations of the Pan-African Conference on the Situation of Refugees in Africa, Arusha, 7-17 May 1979, Recommendations 3 and 4).

36        Experience has shown that the existence and effective implementation of procedures for the determination of refugee status can minimize the risk of exposing refugees to unjustified measures of detention. In situations of large-scale influx where individual determination of status may not be feasible, group determinations are frequently resorted to. The making of individual and group determinations should be as expeditious as possible so as to ensure that any measures of detention are not unduly prolonged.

37        The benefit of Article 31 depends on refugees coming directly from territories where they fear persecution. The term "coming directly" has not so far been clearly defined so that time spent in another country may make a refugee ineligible for asylum or admission and may lead to detention measures on the ground of their illegal entry or presence. The issue of "coming directly" is related to the problem of identifying the country responsible for examining an asylum request which was considered by the Executive Committee at its thirtieth session in 1979 [5] The Committee then considered that an effort should be made to resolve this problem by the adoption of common criteria. It is hoped that it will in due course be possible for States to agree on such common criteria which will in turn also be of assistance in determining whether an asylum-seeker is "coming directly" within the meaning of Article 31.

38        More recently, States have been confronted with the growing phenomenon of refugees moving from countries where they have already received protection but are unable to find a durable solution in order to seek "asylum" elsewhere. Such movements sometimes result in the refugees involved being placed in detention. The question of these movements of refugees and asylum-seekers is currently being addressed in a wider context and it is hoped that appropriate solutions will be found (see Note on International Protection A/AC.96/680, paras. 26-33). In the meantime, it is to be hoped that refugees and asylum-seekers will not suffer undue hardship through the absence of agreement between governments as to the manner in which these various problems should be resolved and that measures of detention will be kept to a minimum.

39        Problems relating to detention have also arisen in large-scale influx situations where States frequently find it necessary to place asylum-seekers in camps or reception centres due to concerns for community welfare, national security and the need to provide immediate accommodation to large numbers of persons. In certain instances, however, asylum-seekers have been placed in "closed camps" for unduly long periods under harsh conditions as part of a policy of "humane deterrence" adopted as a result of a decline in resettlement prospects. In such cases refugees are required to remain in closed camps indefinitely without any immediate prospect of a solution.

40        In regard to large-scale influx situations it should be recalled that the Executive Committee, at its thirty-second session in 1981, adopted Conclusion No. 22 (XXXII) defining a series of basic standards for the treatment of refugees and asylum-seekers. These standards, inter alia, endorse the principle - in line with Article 31 of the 1951 Convention - that "asylum-seekers should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order".

Accommodation of refugees in camps or settlements with restrictions on their freedom of movement

41        In a number of countries refugees who have been formally admitted for residence are accommodated in settlements or designated areas. Such arrangements are frequently made in order to provide solutions for rural refugees. Assignment to such settlements is normally accompanied by various restrictions on freedom of movement which may give rise to problems of detention. When refugees have disregarded such restrictions and have left the camp or settlement they have been exposed to penalties and to long periods of detention, sometimes with a view to forcible return to the country of origin. Return to the country of origin based on such violations of discipline should not, however, be envisaged - having regard to the principle of non-refoulement- and prolonged periods of detention should be avoided for obvious humanitarian reasons.

Detention of refugees in connection with expulsion orders or penal offences

42        Refugees lawfully staying in the territory of a State are sometimes detained in connection with an expulsion order based on reasons other than mere unlawful entry or presence. Article 32 of the Convention limits the circumstances in which refugees lawfully staying in the territory of a Contracting State may be expelled to cases of "national security or public order". A refugee expelled for these reasons will, however, normally face major difficulties in securing admission to another country. Return to the country of origin being ruled out, the refugee may be liable to prosecution and punishment due to his failure to depart and may, as a result, be subject to detention which may continue for a long period.

43        At its twenty-eighth session in 1977 the Executive Committee adopted Conclusion No. 7 (XXVIII) dealing with the expulsion of refugees. In this Conclusion, the Committee considered, in line with Article 32 of the 1951 Convention, that expulsion measures against a refugee should only be taken in very exceptional cases and after due consideration of all the circumstances, including the possibility of the refugee being admitted to a country other than his country of origin. If a measure of expulsion is not justified according to these criteria, a related measure of detention would, of course, be similarly unjustified. In the High Commissioner's Reports to the General Assembly at its fortieth and forty-first sessions (Documents A?40/12 and A/41/12) it was stated that in a number of countries refugees had been the subject of expulsion, measures not justified by Article 32 of the 1951 Convention. In the aforementioned Conclusion No. 7 relating to expulsion, the Executive Committee further recommended that an expulsion order should only be combined with custody or detention if absolutely necessary for reasons of national security or public order and that such custody or detention should not be unduly prolonged.

44        Detention of refugees may also occur in connection with criminal charges brought against them. As stated in Article 2 of the 1951 Convention "every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order". Refugees are thus obliged to respect the criminal law and are subject to ordinary criminal jurisdiction. If, therefore, a refugee is imprisoned in connection with penal proceedings or upon conviction, this does not give rise to any specific problem as regards the permissibility of detention in the context of the present Note.

Conditions of detention of refugees and asylum-seekers

45        From the survey undertaken by UNHCR, it appears that standards of treatment of detained refugees and asylum-seekers vary. While many countries have established special immigration detention centres or remand facilities to detain refugees and asylum-seekers, a number of countries detain refugees and asylum-seekers together with common criminals in public prisons.

46        As explained in the preceding paragraphs, the detention of refugees may occur in a number of different situations. Where detention or imprisonment is related to a criminal offence the treatment of the imprisoned or detained refugee should be in accordance with generally recognized standards. The position is the same when refugees are detained in connection with an expulsion measure taken for reasons of national security or public order. Conditions of detention have been discussed in a number of international fora and the United Nations has elaborated standard minimum rules for the treatment of prisoners. These standards are, of course, also applicable to refugees.

47        Where, on the other hand, detention is merely based on the illegal entry or presence of refugees in search of asylum, different considerations apply. As indicated above, such illegal entry or presence should not be regarded as "unlawful" since persons who are obliged to leave their country of origin in order to seek asylum may not always be in a position to follow established legal procedures. Detention should, therefore, only be resorted to if necessary and the treatment of asylum-seekers in such situations should be as humane as possible. Detention should not have the "punitive" character associated with detention or imprisonment in connection with criminal offences and asylum-seekers should, in principle, not be accommodated in prisons together with common criminals.

48        With regard to the treatment of refugees and asylum-seekers in large-scale influx situations, the Executive Committee has identified a number of standards which also apply to the treatment of asylum-seekers whose freedom of movement is subject to restrictions. In Conclusion No. 22 on the protection of asylum seekers in situations of large-scale influx, the Executive Committee recommended that asylum-seekers be located by reference to their safety and well-being, as well as the security of the State of refuge; that they be provided with the basic necessities of life; that the principle of family unity be respected and that assistance be provided to trace relatives; that minors and unaccompanied children be adequately protected; that the sending and receiving of mail, and receipt of material assistance from friends, be allowed; and that, where possible, appropriate arrangements be made for the registration of births, deaths, and marriages. In general, it is emphasized in the Conclusion that asylum-seekers should be treated as persons whose tragic plight requires special understanding and sympathy.

Access to UNHCR by refugees and asylum-seekers in detention

49        Refugees whose freedom of movement is restricted or who are in detention may, like other refugees, be in need of international protection. In order that such protection can be fully effective, refugees in detention should be able to contact UNHCR and UNHCR, for its part, should have the possibility of intervening on their behalf.

50        From the survey carried out by UNHCR, it appears that only few countries have established arrangements whereby local UNHCR Offices are automatically informed of cases of detained refugees and asylum-seekers. Where such arrangements do not exist UNHCR is sometimes made aware of their presence informally by the authorities or by non-governmental agencies. It is believed that the establishment of more specific arrangements in this regard could usefully be considered within the context of the co-operation between Governments and UNHCR provided for in the UNHCR Statute and in Article 35 of the 1951 Convention and Article II of the 1967 Protocol. The need for such arrangements has been specifically recognized in the above-mentioned Conclusion No. 22 relating to the protection of asylum-seekers in situations of large-scale influx: "Asylum-Seekers shall be entitled to contact the Office of UNHCR. UNHCR shall also be given the possibility of exercising its function of international protection and shall be allowed to supervise the well-being of persons entering reception or other refugee centres".

Conclusion

51        From the considerations set out in the preceding paragraphs the following conclusions can be drawn:

(a)           The problem of the detention of refugees and asylum-seekers has assumed increasing importance in recent years. Large numbers of refugees and asylum-seekers in different areas of the world are currently the subject of detention or similar measures;

(b)           In view of the hardship which measures of detention necessarily involve, such measures should only be resorted to when a genuine necessity exists and, if taken, should not be unduly prolonged;

(c)           In the case of asylum-seekers arriving directly from a country where they may be exposed to persecution, detention measures based on illegal entry or presence should not, in line with Article 31 of the 1951 Convention, be automatic and should not be unduly prolonged. Detention should be justified by the need to verify identity or to establish the basis of the refugee/asylum claim and thereafter by considerations of national security or public order. Detention should not be resorted to as a means of "deterrence" in order to discourage the further arrival of asylum-seekers;

(d)           It is to be hoped that the notion of "coming directly" as provided for in Article 31 will in due course receive clearer definition so that asylum-seekers are not placed in detention merely on the ground that they have passed through one or more intermediate countries. In the meantime every effort should be made to ensure that asylum-seekers are not subjected to detention measures through an unduly narrow interpretation of the notion of "coming directly";

(e)           In recent years there have been increasing instances of detention of refugees who arrive from a country where they have already received protection but have been unable to find a durable solution. While the problem of such movements is now being examined in a wider context it is to be hoped that in the meantime refugees in such situations will not be exposed to undue hardship and that measures of detention will be kept to a minimum;

(f)            Detention of refugees and asylum-seekers may result from the fact that national legislation or administrative practice does not specifically reflect the principles defined in Article 31 of the 1951 Convention or make the necessary distinction between refugees and ordinary aliens. Consideration should therefore be given to the introduction, where necessary, of legislative and/or administrative measures to ensure that refugees are not placed in detention because they are treated as ordinary aliens seeking to enter the territory and not as persons in quest of asylum;

(g)           Having regard to the seriousness of measures of detention taken in respect of refugees it is desirable that such measures should be the subject of judicial or administrative appeal or review;

(h)           The treatment of refugees as ordinary aliens and their detention may also result from the absence of appropriate procedures for determining refugee status. The existence of such procedures is therefore also of importance in protecting refugees from unjustified detention measures;

(i)            In situations of large-scale influx asylum-seekers are frequently the subject of restrictions on their freedom of movement. In such cases regard should be had to the standards defined in Conclusion No. 22 regarding the protection of asylum-seekers in situations of large-scale influx adopted by the Executive Committee at its thirty-second session. These Conclusions state, inter alia, that asylum- seekers in these situations should not be penalized or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful and should not be subjected to restrictions on their movements other than those which are necessary in the interests of public health or public order;

(j)            In some countries refugees who have already been admitted for permanent residence have been subjected to prolonged detention, sometimes with a view to forcible return to their country of origin, for having disregarded regulations limiting their freedom of movement. Forcible return on such grounds should not, however, be envisaged having regard to the fundamental principle of non-refoulement; any punishment imposed for breach of such regulations limiting freedom of movement should be proportionate and the unduly prolonged detention of refugees in these circumstances should be avoided;

(k)           In line with Article 32 of the 1951 Convention and Executive Committee Conclusion No. 7, expulsion measures should only be taken against a refugee in very exceptional cases and after due consideration of all the circumstances. Measures of expulsion should, moreover, only be combined with custody or detention if absolutely necessary for reasons of national security or public order and, if detention proves to be necessary, it should not be unduly prolonged;

(1)           As refugees are under an obligation to conform to the laws and regulations of the country in which they find themselves, they may be subjected to detention or imprisonment related to ordinary penal proceedings not based on illegal entry or presence;

(m)          The conditions of detention of refugees and asylum-seekers based on illegal entry or presence should be humane. In particular, asylum-seekers should, wherever possible, not be accommodated in prisons with common criminals. As regards conditions of detention in the case of large-scale influx, States should be guided by Executive Committee Conclusion No. 22 on the protection of asylum-seekers in situations of large-scale influx which states in particular that asylum-seekers should be treated as persons whose tragic plight requires special understanding and sympathy;

(n)           In all cases detained refugees and asylum-seekers should have access to the Office of the United Nations High Commissioner for Refugees which should be given an effective possibility of intervening with the appropriate authorities on their behalf. To this end, consideration should be given to the establishment of appropriate arrangements whereby local UNHCR Offices are informed of cases of detained refugees and asylum-seekers.

[1] A list of States party to the 1951 Convention and the 1967 Protocol and the 1969 OAU Convention is given in Annex I to the Note on International Protection (A/AC.96/680).

[2] See Memorandum by the Secretary-General to the Ad Hoc Committee on Statelessness and Related Problems on the Status of Refugees and Stateless Persons, 3 January 1950, Doc. E/AC.32/2, p. 10.

[3] This view is supported by the records of the Conference of Plenipotentiaries which adopted the 1951 Convention (A/CONF.2/SR.14 pages 15 and 16).

[4] The notion that refugees should not be subject to unduly prolonged detention is also apparent from Article 9 which deals with provisional measures. It stipulates that in time of war or other grave and exceptional circumstances a State may take provisional measures which it considers to be essential to the national security in the case of a particular person, "pending a determination by that State that person is in fact a refugee and that the continuance of such measures is necessary in his case in the interest of national security".

[5] See Conclusion No. 15 on refugees without an asylum country.