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UNHCR's Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers1
Introduction.
1. The detention of asylum-seekers is in the view of UNHCR inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs. Freedom from arbitrary detention is a fundamental human right, and the use of detention is in many instances, contrary to the norms and principles of international law.
2. Of key significance to the issue of detention is Article 31 of the 1951 Convention2. Article 31 exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The Article also provides that Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary, and that any restrictions shall only be applied until such time as their status is regularised, or they obtain admission into another country.
3. Consistent with this Article, detention should only be resorted to in cases of necessity. The detention of asylum-seekers who come "directly" in an irregular manner should, therefore, not be automatic nor should it be unduly prolonged. This provision applies not only to recognised refugees but also to asylum-seekers pending determination of their status, as recognition of refugee status does not make an individual a refugee but declares him to be one.
Conclusion No. 44(XXXVII) of the Executive Committee on the Detention of Refugees and Asylum-Seekers examines more concretely what is meant by the term "necessary". This Conclusion also provides guidelines to States on the use of detention and recommendations as to certain procedural guarantees to which detainees should be entitled.
4. The expression "coming directly" in Article 31(1), covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept "coming directly" and each case must be judged on its merits. Similarly, given the special situation of asylum seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of general insecurity, and the fact that these and other circumstances may vary
[1][1] These Guidelines address exclusively the detention of asylum seekers. The detention of refugees is generally covered by national law and subject to the principles, norms and standards contained in the 1951 Convention, and the applicable human rights instruments.
[1][2] 1951 Convention Relating to the Status of Refugees.
enormously from one asylum seeker to another, there is no time limit which can be mechanically applied or associated with the expression "without delay". The expression 'good cause', requires a consideration of the circumstances under which the asylum-seeker fled. The term "asylum-seeker" in these guidelines applies to those whose claims are being considered under an admissibility or pre-screening procedure as well as well as those who are being considered under refugee status determination procedures. It also includes those exercising their right to
seek judicial and/or administrative review of their asylum request.
5. Asylum-seekers are entitled to benefit from the protection afforded by various International and Regional Human Rights Instruments which set out the basic standards and norms of treatment. Whereas each State has a right to control those entering into their territory, these rights must be exercised in accordance with a prescribed law which is accessible and formulated with sufficient precision for the regulation of individual conduct. For detention of asylum-seekers to be lawful and not arbitrary, it must comply not only with the applicable national law, but with Article 31 of the Convention and international law. It must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review to ensure that it continues to be necessary in the circumstances, with the possibility of release where no grounds for its continuance exist3.
6. Although these guidelines deal specifically with the detention of asylum-seekers the issue of the detention of stateless persons needs to be highlighted4. While the majority of stateless persons are not asylum-seekers, a paragraph on the detention of stateless persons is included in these guidelines in recognition of UNHCR's formal responsibilities for this group and also because the basic standards and norms of treatment contained in international human rights instruments applicable to detains generally should be applied to both asylum-seekers and stateless persons. The inability of stateless persons who have left their countries of habitual residence to return to them, has been a reason for unduly prolonged or arbitrary detention of these persons in third countries. Similarly, individuals whom the State of nationality refuses to accept back on the basis that nationality was withdrawn or lost while they were out of the country, or who are not acknowledged as nationals without proof of nationality which in the circumstances is difficult to acquire; have also been held in prolonged or indefinite detention only because the question of where to send them remains unresolved.
Guideline 1: Scope of the Guidelines.
These guidelines apply to all asylum-seekers who are being considered for, or who are in, detention or detention like situations. For the purpose of these guidelines, UNHCR considers detention as: confinement within a narrowly bounded or restricted location,
3Views of the Human Rights Committee on Communication No. 560/1993, 59th Session, CCPR/C/D/560/1993.
4UNHCR has been requested to provide technical and advisory services to states on nationality legislation or practice resulting in statelessness. EXCOM Conclusion No. 78(XLVI) (1995), General Assembly Resolution 50/152,1996. See also Guidelines: Field Office Activities Concerning Statelessness.(IOM/66/98-FOM70/98).
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 is to leave the territory. There is a qualitative difference between detention and other restrictions on freedom of movement.
Persons who are subject to limitations on domicile and residency are not generally considered to be in detention.
When considering whether an asylum-seeker is in detention, the cumulative impact of the restrictions as well as the degree and intensity of each of them should also be assessed.
Guideline 2: General Principle
As a general principle asylum-seekers should not be detained. According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter a territory illegally. However the position of asylum-seekers differs fundamentally from that of ordinary aliens in that they may not be in a position to comply with the legal formalities for entry. This element, as well as the fact that asylum-seekers have often had traumatic experiences, should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence.
Guideline 3: Exceptional Grounds for Detention.
Detention of asylum-seekers may exceptionally be resorted to for the reasons set out below as long as this is clearly prescribed by a national law which is in conformity with general norms and principles of international human rights law. These are contained in the main human rights instruments5.
There should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention, (such as reporting obligations or guarantor requirements [see Guideline 4]), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved the lawful and legitimate purpose.
In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to
5Article 9(1) International Covenant on Civil and Political Rights.(ICCPR)
Article 37(b) UN Convention on the Rights of the Child.(CRC)
Article 5(1) European Convention for the Protection of Human Rights and Fundamental Freedoms.(ECHR)
Article 7(2) American Convention on Human Rights 1969.(American Convention)
Article 5 African Charter on Human and People's Rights. (African Charter)
be achieved. If judged necessary it should only be imposed in a non discriminatory manner for a minimal period6.
The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law. In conformity with EXCOM Conclusion No. 44 (XXXVII) the detention of asylum-seekers may only be resorted to, if necessary:
(i) to verify identity.
In those cases where identity may be undetermined or in dispute.
(ii) to determine the elements on which the claim for refugee status or asylum is based.
This statement means that the asylum-seeker may be detained exclusively for the purposes of a preliminary interview to identify the basis of the asylum claim7.This would involve obtaining essential facts from the asylum-seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim. This exception to the general principle cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time.
(iii) in cases where asylum-seekers have destroyed their travel and /or identity documents or have used fraudulent documents in order to mislead the authorities of the State, in which they intend to claim asylum.
What must be established is the absence of good faith on the part of the applicant to comply with the verification of identity process. As regards asylum-seekers using fraudulent documents or travelling with no documents at all, detention is only permissible when there is an intention to mislead, or a refusal to co-operate with the authorities. Asylum-seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason.
(iv) to protect national security and public order.
This relates to cases where there is evidence to show that the asylum-seeker has criminal antecedents and/or affiliations which are likely to pose a risk to public order or national security should he/she be allowed entry.
Detention of asylum-seekers which is applied for purposes other than those listed above, for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. It should not be used as a punitive or disciplinary measure for illegal
6Article 9(1), Article 12 ICCPR,
Article 37(b) CRC
Article 5(1)(f) ECHR
Article 7(3) American Convention
Article 6 African Charter.
EXCOM Conclusion No. 44(XXXVII)
7EXCOM Conclusion No. 44
entry or presence in the country, and should be avoided for failure to comply with administrative requirements or breach of reception centre, refugee camp, or other institutional restrictions. Escape from detention should not lead to the automatic discontinuance of the asylum procedure, nor to return to the country of origin, having regard to the principle of non- refoulement8.
Guideline 4: Alternatives to Detention.
Alternatives to the detention of an asylum-seeker until status is determined should be considered. The choice of an alternative would be influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned and prevailing local conditions.
Alternatives to detention which may be considered are as follows:
(I) Monitoring Requirements.
Reporting Requirements: An asylum-seeker staying out of detention may be conditional on compliance with periodic reporting requirements during the status determination procedures.
Release could be on the asylum-seeker's own recognisance. Alternatively or additionally, that of a family member, NGO or Community group who would be expected to ensure the asylum-seeker reports to the authorities periodically, their compliance with status determination procedures, and their appearance at hearings and official appointments.
Residency Requirements: An asylum seeker would not be detained on condition they reside at a specific address or within a particular administrative region until their status has been determined. Asylum-seekers would have to obtain prior approval to change their address or move out of the administrative region. However this would not be unreasonably withheld where the main purpose of the relocation was to facilitate family reunification or closeness to relatives9.
(ii) Provision of a Guarantor/ Surety. An asylum seeker would be required to provide
guarantor who would be responsible for ensuring their attendance at official appointments and hearings, failure of which a penalty most likely the forfeiture of a sum of money, would be levied against the guarantor.
(iii) Release on Bail. This alternative allows for asylum-seekers already in detention to apply for release on bail, subject to the provision of recognisance's and sureties. For this to be genuinely available to asylum-seekers they must be informed of its availability and the amount set must not be so high as to be prohibitive.
(iv) Open Centres. Asylum-seekers may be released on condition that they reside at specific collective accommodation centres where they would be allowed to obtain permission to leave the centre and return during stipulated times.
8Sub Committee of the Whole of International Protection Note EC/SCP/44 Paragraph 51(c).
9Art 16, Art 12 UDHR
These alternatives are not exhaustive. They identify options which provide State authorities with a degree of control over the whereabouts of asylum-seekers while allowing asylum-seekers basic freedom of movement.
Guideline 5: Procedural Safeguards10
If detained, asylum-seekers should be entitled to the following minimum procedural guarantees:
(i) to receive prompt and full communication of any order of detention, together with the reasons for the order, and the rights in connection with the order, in a language and in terms they understand.
(ii) to be informed of the right to legal counsel. Where possible, they should receive free legal assistance.
(iii) to have the decision subjected to an automatic review before a judicial or administrative body independent of the detaining authorities. This should be followed by regular periodic reviews of the necessity for the continuance of detention at which the asylum-seeker or his representative would have the right to attend.
(iv) either personally or through a representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made. Such a right should extend to all aspects of the case and not simply the executive discretion to detain.
(v) to contact and be contacted by the local UNHCR Office, available national refugee bodies or other agencies and an advocate. The right to communicate with these representatives in private, and the means to make such contact should be made available.
Detention should in no way constitute an obstacle to the asylum-seekers' possibilities to pursue their asylum application.
Guideline 6: Detention of Persons under the Age of 18 years11.
10Article 9(2) and (4) ICCPR
Article 37(d) CRC
Article 5(2) and (4) ECHR
Article 7(1) African Charter.
Article 7(4) and (5) American Convention
EXCOM Conclusion no. 44 (XXXVII)
UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment. 1988
UN Standard Minimum Rules for the Treatment of Prisoners 1955
11See also UN Rules for the Protection of Juveniles Deprived of their Liberty 1990
In accordance with the general principle stated at Guideline 2 and UNHCR's Guidelines on Refugee Children, minors who are asylum-seekers should not be detained.
In this aspect particular reference is made to The Convention on the Rights of the Child in particular:
Article 2 which requires that States take all measures appropriate to ensure that children are protected from all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians or family members;
Article 3 which provides that in any action taken by States Parties concerning children, the best interests of the child shall be a primary consideration;
Article 9 which grants children the right not to be separated from their parents against their will;
Article 22 which requires that States take appropriate measures to ensure that minors who are seeking refugee status or who are recognised refugees, whether accompanied or not, receive appropriate protection and assistance: and
Article 37 by which State Parties are required to ensure that the detention of minors shall be used only as a measure of last resort and for the shortest appropriate period of time.
Unaccompanied minors should not, as a general rule, be detained. Where possible they should be released into the care of family members who already have residency within the asylum country. Otherwise, alternative care arrangements should be made by the competent child care authorities for unaccompanied minors to receive adequate accommodation and appropriate supervision. Residential homes for children or foster care may provide the necessary facilities to ensure that their proper development, (both physical and mental), is catered for while longer term solutions are being considered.
All appropriate alternatives to detention should be considered in the case of children accompanying their parents. Children and their primary caregivers should not be detained unless this is the only means of maintaining family unity.
If none of the alternatives can be applied and States do detain children, this should, in accordance with Article 37 of the Convention on the Rights of the Child, be as a measure of last resort, and for the shortest period of time in accordance with the exceptions stated at Guideline 3.
If children who are asylum-seekers are detained at airports, immigration-holding centres or prisons, they must not be held under prison- like conditions. All efforts must be made to have them released from detention and placed in other accommodation. If this proves impossible, special arrangements must be made for living quarters which are suitable for children and their families.
During detention children have the right to an education which should optimally take place outside the detention premises in order to facilitate the continuance of their education upon release. Provision should also be made for their recreation and play which is essential to a child's mental development and to alleviate stress and trauma.
Children who are detained, benefit from the same minimum procedural guarantees (listed at Guideline 5) as adults. A legal guardian or adviser should be appointed for unaccompanied minors12.
Guideline 7: Detention of Vulnerable Persons.
Given the very negative effects of detention on the psychological well being of those detained, active consideration of possible alternatives should precede any order to detain asylum-seekers falling within the following vulnerable categories listed13:
Unaccompanied elderly Persons.
Torture or Trauma Victims.
Persons with mental or physical disability.
In the event that individuals falling within these categories are detained, it is advisable that this should only be on the certification of a qualified medical practitioner that detention will not adversely affect their health and well being. In addition there must be regular follow up and support by a relevant skilled professional. They must also have access to services, hospitalisation, medication counselling etc. should it become necessary.
Guideline 8: Detention of Women.
Women asylum-seekers and adolescent girls, especially those who arrive unaccompanied, are particularly at risk when compelled to remain in detention centres. As a general rule the detention of pregnant women in their final months and nursing mothers both of whom may have special needs should be avoided.
Where women asylum-seekers are detained they should be accommodated separately from male asylum-seekers, unless these are close family relatives. In order to respect cultural values and improve the physical protection of women in detention centres the use of female staff is recommended.
Women asylum-seekers should receive the same access to legal and other services without discrimination as to their gender14 ,and specific services in response to their
12An adult who is familiar with the child's language and culture may also alleviate the stress and trauma of being alone in unfamiliar surroundings.
13Although it must be recognised that most individuals will be able to articulate their claims, this may not be the case in those who are victims of trauma. Care must be taken when dealing with these individuals as their particular problems may not be apparent, and it will require care and skill to assess the situation of a person with mental disability or a disoriented older refugee who is alone.
14See UNHCR Guidelines on The Protection of Refugee Women.
special needs15. In particular they should have access to gynaecological and obstetrical services.
Guideline 9: Detention of Stateless Persons.
Everyone has the right to a nationality and the right not to be arbitrarily deprived of their nationality16.
Stateless persons, those who are not considered to be nationals by any State under the operation of its law, are entitled to benefit from the same standards of treatment as those in detention generally17. Being stateless and therefore not having a country to which automatic claim might be made for the issue of a travel document should not lead to indefinite detention. Statelessness cannot be a bar to release. The detaining authorities should make every effort to resolve such cases in a timely manner, including, through practical steps to identify and confirm the individuals nationality status in order to determine which State they may be returned to, or through negotiations with the country of habitual residence arrange for their re-admission.
In the event of serious difficulties in this regard, UNHCR's technical and advisory service pursuant to its mandated responsibilities for stateless persons may, as appropriate, be sought.
Guideline 10: Conditions of Detention18
Conditions of detention for asylum-seekers should be humane with respect for the inherent dignity of the person. They should be prescribed by law.
Reference is made to the applicable norms and principles of international law and standards on the treatment of such persons. Of particular relevance are the 1988 UN Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, 1955 UN Standard Minimum Rules for the Treatment of Prisoners, and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty.
The following points in particular should be emphasised:
15Women particularly those who have travelled alone may have been exposed to violence and exploitation prior to and during their flight and will require counselling.
16Art 15 UDHR. See EXCOM No. 78(XLVI)
17Article 10(1) ICCPR
1988 UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
UN Standard Minimum Rules for the Treatment of Prisoners 1955
1990 UN Rules for the Protection of Juveniles Deprived of their Liberty
18Article 10(1) ICCPR
1988 UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment.
1955 UN Standard Minimum Rules for the Treatment of Prisoners.
1990 UN Rules for the Protection of Juveniles Deprived of their Liberty.
(i) All asylum-seekers should undergo an initial screening at the outset of detention to identify trauma or torture victims, for treatment in accordance with Guideline 7.
(ii) the segregation within facilities of men and women, and the segregation of children from adults except where they are part of a family group.
(iii). Separate detention facilities should be used to accommodate asylum-seekers. The use of prisons should be avoided. If separate detention facilities are not used asylum-seekers should be accommodated separately from convicted criminals or prisoners or remand. There should be no co-mingling of the two groups.
(iv) the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel. Facilities should be made available to enable such visits. Where possible such visits should take place in private unless there are compelling reasons to warrant the contrary .
(v) the opportunity to receive appropriate medical treatment, and psychological counselling where appropriate.
(vi) the opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities
(vii) the possibility to continue further education or vocational training.
(viii) the opportunity to exercise their religion in practice, worship and observance and to receive a diet in keeping with their religion.
(ix) the opportunity to have access to basic necessities i.e. beds, shower facilities, basic toiletries etc.
(x) access to a complaints mechanism, (grievance procedures) where complaints may be submitted either directly or confidentially to the detaining authority. Procedures for lodging complaints including time limits and appeal procedures, should be displayed and made available to detainees in different languages.
Conclusion
The increasing use of detention as a restriction on the freedom of movement of asylum seekers on the grounds of their illegal entry is a matter of major concern to UNHCR, NGOs, other Agencies as well as Governments. The issue is not a straight-forward one and it is hoped these guidelines have addressed the legal standards and norms applicable to the use of detention.
Detention as a mechanism which seeks to address the particular concerns of States related to illegal entry requires the exercise of great caution in its use to ensure that it does not serve to undermine the fundamental principles upon which the regime of international protection is based.