Overview

What Is the Detention of Migrants and Refugees?

Detention of refugees and immigrants refers to the practice of placing these groups in detention centers with bars and fences that are isolated from society. This is a state practice that is common during asylum, entry, or return procedures, and which violates the fundamental human right to liberty and freedom. Despite this only being permitted when other options are exhausted, a large number of immigrants and refugees are kept in detention centers for excessive periods of time. In addition, the language used to refer to the circumstances of detention and those implicated is often purposefully opaque, e.g., detainees are referred to as “clients” and cells as “rooms”, which further obscures the situation.

Photo: US Government / Wikimedia Commons

The detention of refugees or immigrants is the deprivation of the freedom of immigrants and refugees in host countries and constitutes an exception to the fundamental human right to liberty and freedom. In practice, refugees and immigrants are placed in detention centers with bars and fences and left isolated from society with very limited understanding of procedures and without access to any legal aid.

Detention either during asylum, entry, or return procedures is a state practice that is widely used and misused on immigrants and refugees arriving without permits(i.e. illegally) to host countries.

<h6 class="textbox" font-size:14px>The immigration language concerning deprivation of rights and liberties of refugees/immigrants rarely reflects the true nature of different restrictive measures. Detention is never presented as a deprivation of liberty taking place behind bars for many months or even years but is called an administrative or security measure etc. The detention place itself, often worse and with fewer rules than any regular prison, is never named as a prison and, rarely, as a detention center or cell but rather “a unit” or ”room”. Detainees are “clients”, taken care of by social workers and violent behavior from guards is called an “incident” or a “necessary measure”. This is common for the whole jargon in immigration law enforcement.</h6>

Detention, in general, is permitted (according to Article 5 of the European Convention on Human Rights and Fundamental Freedoms) but must comply with important safeguards like being the last option and leading to deportation. It should only be used after other alternative measures are exhausted (see Alternatives to Detention). Nevertheless, a large number of immigrants and refugees worldwide have been kept in detention centers for excessive periods both upon entry to a country or to prevent them from running away during removal or asylum procedures. International law stipulates that detained individuals must be treated in a humane and dignified manner.

OVERVIEW

Detention of Migrants and the Law

Detaining asylum seekers and refugees is illegal according to international law; however, laws created by individual countries can be used to get around this. These laws are often created in the interest of protecting national security, public order, public health or morals, or the rights and freedoms of others. In addition, regional international treaties and agreements also often include permissible reasons for detention. In many countries, detention centers are terrible places in which access to legal services is severely restricted. In this way, detention is often used to deter asylum seekers and refugees from arriving in certain countries.

Photo: Sandor Csudai / KUNM Radio

Legal Detention of Immigrants and Refugees

General international law restricts the possibility of detaining asylum seekers and refugees.

According to Article 31 of the 1951 Geneva Refugee Convention, penalties must not be imposed on “...refugees coming from a territory where their life or freedom is at risk even if they come illegally. However, they should present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

Article 12 of the International Covenant on Civil and Political Rights, a fundamental United Nations human rights treaty signed by 172 countries, provides the right to freedom of movement without discrimination between citizens and aliens. Restrictions to this right are permitted when they are provided by laws adopted by host countries. Such laws might be created and deemed necessary when the state believes there is a need to protect national security, public order, public health or morals, or the rights and freedoms of others.

Specific regional international treaties and agreements set additional limits on the detention of immigrants and refugees. For example, the Convention for the Protection of Human Rights and Fundamental Freedoms, usually shortened to the European Convention on Human Rights (ECHR) protects the human rights of people in countries that belong to the Council of Europe. All 46 Member States of the Council, including the UK, have signed the Convention and must comply with the standards of the Convention including the rules on detention. Article 5 of the ECHR, gives an exhaustive list of permissible reasons for detention. These include preventing the unauthorized entry of migrants or facilitating the removal of a person.

European Union law also<span class="span"><span id=hint class="box-source">stipulates</span><div class="popover">Source:<br><br><div>European Union Fundamental Rights Agency. Handbook on European law relating to asylum, borders and immigration. 2020.</div></div></span>that detention is only permissible if necessary using a necessity test and certain additional requirements also need to be met, such as giving reasons for any detention and allowing the detainee to have access to speedy judicial review.

Similarly, the American Convention on Human Rights (Pact of San José, Article 7, 1969) and the African Charter on Human and Peoples (Banjul Charter, 1981, Article 6) also protect individuals from unlawful detention.

Unlawful Practices of Detention

Detention of immigrants and refugees has<span class="span"><span id=hint class="box-source">often been used</span><div class="popover">Source:<br><br><div>Majcher, I., Flynn, M. and Grange, M. Immigration Detention in the European Union: In the Shadow of the “Crisis”. Springer, 2020.</div><br><br><div>—</div><div>Detention Watch Network. Ending the Use of Immigration Detention to Deter Migration. 2015.</div><br><br><div>—</div><div>McDonnell, E. UK Joins Global Race to the Bottom on Migration: Importing Australia's Deadly Policies. Human Rights Watch, 2023.</div></div></span>as a deterrence measure by many immigration countries to signal to newcomers that they should avoid the given country. Asylum seekers and refugees are frequently detained in contradiction with Article 31 of the 1951 Refugee Convention or the European Convention of Fundamental Rights and Freedoms (ECHR). They are labeled and treated as illegal immigrants without enabling them to apply for refugee status.

In many countries, such as Malta,<span class="span"><span id=hint class="box-source">Libya</span><div class="popover">Source:<br><br><div>United Nations High Commissioner for Human Rights. Libya: UN experts alarmed at reports of trafficking in persons, arbitrary detention, enforced disappearances and torture of migrants and refugees. 2023.</div></div></span>etc., detention centers are terrible and dirty places, managed by state, non-state or criminal networks with many<span class="span"><span id=hint class="box-source">unlawful practices</span><div class="popover">Source:<br><br><div>United Nations High Commissioner for Human Rights. Immediate action needed to address conditions of detention in Latin America. 2012.</div><br><br><div>—</div><div>Amnesty International. Libya: Horrific violations in detention highlight Europe’s shameful role in forced returns. 2021.</div></div></span>resulting in torture and inhumane and degrading treatment of refugees.

Lawyers and aid organizations are often not allowed to visit migrants and refugees in detention centers to provide legal intervention services to help them get out, register their asylum requests, make their asylum cases heard, or to address ill-treatment issues.

There are numerous efforts from different bodies and coalitions to address the problem of unlawful detention of immigrants and refugees. The largest is the International Detention Coalition (IDC), which is a global network of more than 400 organizations, groups and individuals, as well as representatives of communities impacted by immigration detention. It is based in over 100 countries. IDC works on several issues related to immigrant detention such as promoting different alternatives to detention and presenting community placement models. IDC also focuses on the involvement of academia, improving laws and policies, direct services for migrants and refugees, advocacy, and community organization.

OVERVIEW

Alternatives to Detention

In countries in which detention is seen as a last resort, various alternatives exist. These are made up of policies and practices that ensure people are not detained as a result of their migration status, though they are rarely utilized. These include, but are not limited to, the individual reporting to the authorities at regular intervals, living and staying at a specific address, electronic monitoring, such as tagging, and handing over travel documents.

Photo: Charles Edward Miller / Flickr

Alternatives to detention are<span class="span"><span id=hint class="box-source">defined</span><div class="popover">Source:<br><br><div>American Immigration Council. Alternatives to Immigration Detention: An Overview. 2023.</div><br><br><div>—</div><div>European Union Fundamental Rights Agency. Handbook on European law relating to asylum, borders and immigration. 2020.</div></div></span>as any legislation, policy, or practice, formal or informal, that ensures people are not detained for reasons relating to their migration status. Alternatives to detention might include a variety of measures, which, in practice, are used only rarely by states. Alternatives to detention can include the following:

reporting obligations, such as weekly reporting to the police or immigration authorities at regular intervals;
obligation to surrender passports or travel documents;
residence requirements, such as living and staying at a particular address;
release on bail with or without guarantees;
guarantor requirements - someone else guarantees the stay of the person in a designated place;
release to care worker support, community care plan, or mental health support team;
electronic monitoring, such as tagging;
release on recognizance (i.e., no detention and no conditions on release)

In a number of national and regional legal systems, detention is<span class="span"><span id=hint class="box-source">only allowed</span><div class="popover">Source:<br><br><div>European Court of Human Rights. Guide on Article 5 of the European Convention on Human Rights: right to liberty and security. 2022.</div><br><br><div>—</div><div>Government of the Netherlands. Aliens detention.</div></div></span>as a last resort. Alternatives must first be exhausted before the detention is ordered unless such alternatives cannot be applied effectively in the individual case. Cases like this might<span class="span"><span id=hint class="box-source">include</span><div class="popover">Source:<br><br><div>European Parliament. 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. 2008.</div><br><br><div>—</div><div>European Parliament. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. 2013.</div><br><br><div>—</div><div>European Parliament. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. 2013.</div></div></span>if a person lies about their identity, has used drugs, or has absconded in the past without returning to their home country.

OVERVIEW

Monitoring of detention

Various national and international bodies carry out visits to detention centers in order to assess the conditions inside. This form of monitoring has been shown to be effective in reducing the ill-treatment of refugees and immigrants. Despite the findings not being legally binding, they are effective in that they are reported in the media and are used as examples by those defending human rights.

Photo: MONUSCO Photos / Wikimedia Commons

It is increasingly<span class="span"><span id=hint class="box-source">recognized</span><div class="popover">Source:<br><br><div>International Detention Coalition. Monitoring Immigration Detention. 2014.</div><br><br><div>—</div><div>Women's Refugee Commission. Guide to Monitoring Immigration Detention Facilities: A guide for NGOs interested in monitoring detention facilities under ICE’s 2011 Access Directive. 2015.</div></div></span>that monitoring detention sites through regular and unannounced observations constitutes one of the most effective ways to prevent torture and ill-treatment of refugees and immigrants. Visits can be carried out by international bodies, such as the European Committee for the Prevention of Torture, international organizations such as the United Nations High Commissioner for Refugees (UNHCR), or they might be carried out at the national level, for example by the national ombudsman. For instance, the Czech Ombudsman Office has the power to visit detention centers without prior notice. Various international bodies<span class="span"><span id=hint class="box-source">encourage and empower</span><div class="popover">Source:<br><br><div>Organization for Security and Co-operation in Europe. Monitoring Places of Detention: A Practical Guide for NGOs. 2004.</div><br><br><div>—</div><div>Asia Pacific Forum. Monitoring Places of Detention: A Practical Guide. 2015</div></div></span>non-governmental organizations to conduct visits to detention centers and report their findings.

The findings of the monitoring bodies are not binding for the states but they are often respected or at least<span class="span"><span id=hint class="box-source">reported</span><div class="popover">Source:<br><br><div>BBC News. Investigation into man's death in police custody in Cornwall. 2023.</div></div></span>by local media and<span class="span"><span id=hint class="box-source">addressed</span><div class="popover">Source:<br><br><div>Amnesty International. The Nightmarish Detention of U.S. Immigrants.</div></div></span>by human rights defenders.

OVERVIEW

Effects of and Arguments For & Against Migrant Detention

Detention has extremely negative consequences for those detained, which, in many countries, includes children and unaccompanied minors. In addition, it is costly and often does not end up with the individual being deported. However, from the state’s perspective, detention is the easiest way to ensure that an individual can be returned to their country of origin, i.e., they know exactly where they are and can carry out the deportation as and when. Moreover, harsh conditions act to deter potential arrivals, although this is often at the expense of neighboring countries.

Photo: Human Rights for All FIDH Worlwide Human Rights Movement / Flickr

Detention is a severe interference to the right to freedom of movement. Detention, with all its negative consequences on the physical and mental well being of detainees considered, imposed for a mere administrative offense (irregular border crossing or staying in the country without a permit), is a harsher punishment than in the case of many other crimes. It is a very costly measure, which often does not serve its purpose - i.e. to enforce deportation. In many countries, children and unaccompanied minors are detained too.

From the state’s point of view, detention serves to enforce deportation in the easiest possible way because the detained person is always at disposal for the execution of the return to his or her country of origin. Harsh detention conditions are believed by many states as a tool to discourage immigrants and refugees from entering that particular country or preventing them from using particular migration routes. Such practices are usually at the expense of other (neighboring) countries.

Overview

Alternatives to Migrant Detention & Deterrence Strategies

As at-risk individuals in forced displacement scenarios, refugees and immigrants should be treated in a humane and sensitive way. Thus, policies including refugee resettlement and relocation, the use of humanitarian corridors, and more open immigration programs should be explored and implemented as alternatives to detention in host countries. In addition, information campaigns and labor migration programs should be promoted in countries of origin, and working readmission agreements and voluntary returns programs should be established with these countries.

Photo: Mani Albrecht / Defense Visual Information Distribution Service

Instead of detention, more legal alternatives for the arrival of refugees and immigrants should be explored and introduced such as resettlement of refugees, relocation of refugees, use of humanitarian corridors, more open immigration programs, etc. As a rule, refugees, as persons at risk in forced displacement situations, should not be detained but treated in a humane and sensitive way. In order to prevent irregular arrivals or irregular stays of immigrants, information campaigns in countries of origin of the immigrant should be organized and labor migration programs opened up. On the territory of the host country, the alternatives to detention discussed above should be explored and used much more often. In order to enforce the return of irregular migrants, better working readmission agreements with their countries of origin should be implemented, and better use of voluntary returns promoted.