Unlocking rights: towards ending immigration detention for asylum-seekers and refugees

In particular, States should take the following measures to address problems of law and practice, in consultation with UNHCR, NHRIs and civil society, including refugee-led organizations.

Overarching measures
• Take measures to ensure that in law and in practice, immigration detention of asylum-seekers and refugees is an exceptional measure of last resort and subject to clear time limits.
• Ensure that immigration detention of asylum-seekers and refugees is resorted to only when it is clearly authorized by law, determined to be necessary, reasonable in all the circumstances, and proportionate to a legitimate purpose in the individual case.
• Ensure that where asylum-seekers and refugees are detained, they have access to legal advice, that conditions are humane and dignified and prevent their detention in inappropriate facilities, including in prisons or other facilities designed for criminal justice purposes.
• Ensure that all places of immigration detention are subject to independent monitoring and inspection by independent national and international institutions and bodies.

De facto detention
• Ensure that any facilities accommodating asylum-seekers or refugees that are not officially designated places of detention under national law, including reception facilities at borders, are designed and managed in compliance with the right to liberty – and do not become places of detention. Such facilities should impose minimal restrictions on movement, communication and privacy, and should provide adequate living conditions appropriate to the non-punitive nature of the facility.
• Where facilities accommodating asylum-seekers or refugees do entail deprivation of liberty in practice, States must ensure that detention is adequately provided for in national law, is necessary and proportionate for a legitimate purpose, and is subject to adequate procedural safeguards and time limits to ensure respect of rights of refugees and asylum-seekers.
• Independent monitoring of all de facto detention facilities, including those not recognized as detention facilities in national law, must be ensured. In situations of ambiguity where restrictions on freedom of movement and other rights may approach a deprivation of liberty, national authorities should provide for unhindered access by independent monitoring bodies, including UNHCR.

Detention of children
• The international legal prohibition on detention of children for immigration-related purposes should be reflected in national laws. Where necessary, States, in consultation with civil society and including children, should amend national law to prohibit such detention. In order to uphold the best interests of children and their right to family life, national law should also provide that accompanied children should be accommodated together with their family members outside of detention.
• Alternative care arrangements for unaccompanied and separated children should prioritize family-based care and should ensure their equal treatment within national child protection systems. States should implement alternative care arrangements that are financially and practically accessible for all children and their families at risk of immigration detention. Such arrangements should respect the human rights of children and their families, and provide adequate reception conditions, including recreation, learning opportunities and maternal and child health services. These alternatives should be implemented alongside effective child-friendly procedures for referral to alternatives, and assessment of the child’s best interests.

Procedural safeguards
• States must take steps to ensure that all asylum-seekers and refugees detained for immigration-related purposes are promptly provided with adequate information about their detention, including through provisions of interpretation and/or translation into a language and in a manner that they understand.
• States must provide resources and implement systems to ensure that asylum-seekers and refugees in immigration detention have prompt, regular and confidential access to a lawyer, both in law and in practice, and that lawyers representing asylum-seekers or refugees in detention do not face obstruction in their work. Where confidential in-person consultations are not available, confidential online or telephone consultations should be facilitated.
• National laws should be amended where necessary to provide for precise limits to the duration of immigration detention and allow for judicial review of such detention that is substantive and not merely procedural, which examines compliance with national law and the human rights of refugees and asylum-seekers, and with the power to order release.
Detention monitoring
• States should permit and facilitate unhindered access by UNHCR and other independent monitoring organisations to all places where asylum-seekers and refugees are detained for immigration-related purposes. They should consider agreeing to memoranda of understanding to facilitate and guide such access. National independent monitoring mechanisms with mandates to monitor immigration detention should be established where they are not already in place.

Alternatives to detention
• States should step up provision and resourcing of ATDs to ensure that they are available, accessible, and affordable to all refugees and asylum-seekers in, or at risk of, immigration detention. Any discriminatory limitations on eligibility for referral to ATDs should be eliminated in law and in practice.
• States should ensure that there are prompt and effective procedures for vulnerability screening and referral to ATDs without undue delays.
• A range of ATDs should be put in place to ensure that appropriate and proportionate measures can be applied in each individual case. Application of ATDs should be time-limited and continuously monitored individually to ensure that any restrictions on rights do not become disproportionate over time.
• Priority should be given to developing community-based models of ATDs that are integrated with case management systems and that support the asylum-seeker in accessing and engaging with the asylum process.
• States should end the use of practices which may be referred to as “ATDs” that in practice amount to de facto detention, as well as those that are punitive in nature and based on criminal law models, such as bail arrangements or electronic tagging.
• ATDs should never be applied as an alternative to liberty.

Data, information and capacity building
• States should collect and publish comprehensive disaggregated data on immigration detention, to inform policy and law reform.
• States should ensure that officials involved in reception and detention of asylum-seekers and refugees have an understanding of international refugee and human rights law and standards on immigration detention. They should work cooperatively with UNHCR and other relevant inter-governmental organizations, as well as NHRIs and civil society, including refugee-led organizations, to provide information and training on these issues.