UNHCR Releases New Guidelines for Detention of Asylum-Seekers

[The following press release and guidelines were issued by the United Nations High Commission on Refugees on 21 September 2012.]

Press Release

The UN refugee agency on Friday issued new guidelines on the detention of asylum-seekers and said UNHCR was concerned at its growing use in a number of countries.

"The guidelines represent UNHCR policy and are intended as advice for governments and other bodies making decisions on detaining people," spokesman Adrian Edwards told journalists in Geneva on Friday.

As a principle, UNHCR opposes detention of people seeking international protection. The new guidelines make clear that seeking asylum is not a criminal act, and that indefinite and mandatory forms of detention are prohibited under international law, Edwards explained.

"We are disappointed that many countries continue to hold asylum-seekers in detention, sometimes for long periods and in poor conditions, including in some cases in prisons together with common criminals," he said.

UNHCR is particularly concerned that detention is in growing use in a number of countries. Edwards said that the refugee agency`s research "shows that irregular migration is not deterred even by stringent detention practises, and that practical alternatives to detention do exist. In addition, there are well-known negative and at times serious physical and psychological consequences for asylum-seekers in detention."

The new guidelines, reflecting the current state of the international law, supersede the last ones issued by UNHCR in 1999. They recognize the phenomenon of irregular migration as well as mixed movements of refugees and migrants that can strain asylum systems in many countries.

This is a particular challenge for governments, and some of them respond through detention policies and practices, extending it – at times – to asylum-seekers. "The fundamental right to liberty and the prohibition of arbitrary detention applies to all people regardless of their immigration or other status," Edwards stressed.

The right to seek asylum entails open and humane reception arrangements for asylum-seekers. Recent research on alternatives to detention commissioned by UNHCR shows that with community-based supervision arrangements, more than ninety percent of asylum-seekers comply with conditions of release from detention.

"UNHCR calls on states to make better use of alternatives to detention. These can include various forms of reporting requirements to community and supervision schemes or accommodation in designated reception centres, but with guaranteed freedom of movement," the spokesman said.

Such solutions are important features of immigration and asylum regimes. Alternatives to detention are also far more cost-effective than detention. UNHCR will continue to carry out research to identify and promote good practices related to alternatives to detention of asylum-seekers and remains fully engaged on this issue at international and national levels.

"We stress our view that unaccompanied children should not be detained," Edwards said. "UNHCR calls on governments to also pay special attention to vulnerable asylum-seekers such as victims of torture and trauma, older persons, or persons with disabilities."

The UN refugee agency believes detention should be a measure of last resort, prescribed by national laws and implemented only where necessary and proportionate to a legitimate purpose –in conformity with international standards.

"In line with the growth in international, regional, and national monitoring and inspection bodies, we stress that detention should be subject to independent monitoring and inspection, including by UNHCR," Edwards said.

Guidelines: Introduction & Scope

1. The rights to liberty and security of person are fundamental human rights, reflected in the international prohibition on arbitrary detention and supported by the right to freedom of movement. While acknowledging the array of contemporary challenges to national asylum systems caused by irregular migration as well as the right of States to control the entry and stay of nonnationals on their territory, subject to refugee and human rights standards,[1] these Guidelines reflect the current state of international law relating to the detention of asylum-seekers and are intended to guide: 
   • governments in their elaboration and implementation of asylum and migration policies which involve an element of detention; and 
   • decision-makers, including judges, in making assessments about the necessity of detention in individual cases. 
2. In view of the hardship which it entails, and consistent with international refugee and human rights law and standards, detention of asylum-seekers should normally be avoided and be a measure of last resort. As seeking asylum is not an unlawful act, any restrictions on liberty imposed on persons exercising this right need to be provided for in law, carefully circumscribed and subject to prompt review. Detention can only be applied where it pursues a legitimate purpose and has been determined to be both necessary and proportionate in each individual case. Respecting the right to seek asylum entails instituting open and humane reception arrangements for asylum-seekers, including safe, dignified, and human rights-compatible treatment.[2] 

3. There are various ways for governments to address irregular migration – other than through detention – that take due account of the concerns of governments as well as the particular circumstances of the individual concerned.[3]  In fact, there is no evidence that detention has any deterrent effect on irregular migration.[4] Regardless of any such effect, detention policies aimed at deterrence are generally unlawful under international human rights law as they are not based on an individual assessment as to the necessity to detain. Apart from ensuring compliance with human rights standards, governments are encouraged to review their detention policies and practices in light of the latest research in relation to alternatives to detention (some of which is documented in these Guidelines). UNHCR stands ready to assist governments in devising alternative to detention programmes.

4. These Guidelines reflect the state of international law relating to detention – on immigration-related grounds – of asylum-seekers and other persons seeking international protection. They equally apply to refugees and other persons found to be in need of international protection should they exceptionally be detained for immigration-related reasons. They also apply to stateless persons who are seeking asylum, although they do not specifically cover the situation of non-asylum-seeking stateless persons,[5] persons found not to be in need of international protection[6] or other migrants, although many of the standards detailed herein may apply to them mutatis mutandis. This is particularly true with regard to non-refugee stateless persons in the migratory context who face a heightened risk of arbitrary detention. The Guidelines do not cover asylum-seekers or refugees imprisoned on the basis of criminal offences. 

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