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Step 2 in the handbook

Step 2 in the handbook

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Published by: International Detention Coalition on May 10, 2011
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law.
62
Legally prescribedalternatives to detentionprovide immigrationocials with clearoptions or irregularmigrants and asylumseekers to remain inthe community whiletheir migration case isbeing resolved, as seenin Box 2 New Zealand.The eectiveness o such lawsrelies on good implementation atthe individual level. These lawscan also include mechanismsto monitor the use o alternatives to ensure thatany conditions or restrictions are applied in limitedcircumstances and only when necessary.
Step 2.
 
4.2 Screen and aSSeSSthe individual caSe
 
Screening and assessment o an individual subject to orat risk o immigration detention are important tools inreducing unnecessary detention.With individual assessment, authorities can identiyand assess levels o risk and vulnerability as well as thestrengths and needs o each person. Such assessmentenables authorities to make an inormed decisionabout the most appropriate way to manageand support the individual as they seekto resolve their migration status and tomake case-by-case decisions about theneed to detain or not, and under whatcircumstances. Cost savings can be achievedthrough such targeted approaches bylimiting unnecessary detention. It alsoprovides a process by which authoritiescan ensure their decisions adhere to legalrequirements and issues o duty o care,particularly in the case o individuals with complexneeds. Examples o such assessment rameworks areseen in Canada,
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the United Kingdom
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and HongKong (Box 5).Screening and assessment o the individual casecan include several actors. The sections belowwill describe our key areas o assessment that arecurrently considered as signicant or eective casemanagement with migrants, seen in Figure 2.
4.2.1 lg bgs
It is o primary importance that detention is legallyapplied in each case to protect individuals romarbitrary or wrongul detention. A process that screensindividuals against international human rights laws andstandards and national laws and policies regardingdetention can reduce the likelihood o unlawuldetention and the costly litigation and public criticismthat can entail. An assessment o legal obligations ineach individual case can establish the lawulness odetention and identiy any legal requirements thatmust be ullled.Many countries have laws that outline mandatoryactions in particular migration cases, includingthat certain vulnerable individuals, such as minors,cannot be detained. These will vary according tonational law and, in some cases, regional agreements.States must be extremely careul that the right tobe protected rom arbitrary detention will be upheldshould any orm o mandatory detentionbe considered.
66
Some o the obligations imposed by law orestablished in policy that might be assessed at thisstage include those that prevent the detention oparticular groups o people, as seen with minors in
Fg 2: usg  pp g  ssss
LegalobligationsIdentity, healthand securitychecksVulnerabilityIndividualcase factors
Individualscreening andassessment: the UnitedKingdom, HongKong, the U.S.A.(in development),CanadaAlternatives todetention in law,policy or practice:New Zealand,Venezuela, Japan,Switzerland,Lithuania,Denmark, Finland,Norway, Sweden,Austria, Germany,Canada
 
023
Panama (Decree 03/2008) and Belgium (Box 13) andunaccompanied minors in Hungary (Box 3). This caninclude laws that prohibit the detention o:
• Citizens and residents with legal status• Unaccompanied or separated minors• Families with minors• Vulnerable groups such as refugees, survivors of
torture or human trackingLaw or policy may require that alternatives todetention are applied or shown to be inadequate inthe individual case beore detention can be applied, asseen in Section 4.1.Finally, there may be laws or policies outlining thecircumstances in which people who are already indetention must be released, as discussed in Section4.5.1 and seen in Box 17 Argentina. These can include:
• When a duty of care cannot be met within a
detention environment
• When a maximum period of detention has been
reached
• When a visa is issued or right to stay achieved
Incorporating legal obligations into a screeningand assessment process ensures that the decisionsregarding detention are lawul, protecting bothindividuals and the state rom the harmulconsequences o unlawul or arbitrary detention.
4.2.2 h,   s ks
A central component o any screening and assessmentprocess are standard government health, identity andsecurity checks. These three assessments are vitalor managing and regulating the entry and exit opeople rom the territory. A number o countries haveintroduced streamlined identity, health and securitychecks to minimise the use or period o detentionduring these processes.
h ks
A medical assessment allows the governmentto check or any health issues, including communicablediseases such as tuberculosis.
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Health checks enablethe government to identiy and treat key healthissues and to protect public health. They can alsobe used to uphold the health o detained populationsby ensuring contagious diseases are not introducedto detention centres (see Section 4.5.1) and to screenout or release seriously ill people rom detention.Health checks are sometimes used to limit any unairburden o migrants on national health care systems;however this must be exercised with caution to ensurethat individuals who are seriously ill do not aceinhuman suering should they be denied medicalattention or ace deportation without the prospect o
Screen and assess the individualAssess the community settingApply conditions if necessary
Legal obligations
Case management
Individual undertakings
Identity, health and security
Legal advice
Monitoring
Vulnerability
Ability to meet basic needs
Supervision
Individual case factors
Documentation
Intensive case resolution 
Negative consequences
Box 3.
Legislation establishing that unaccompanied minorsare not to be detained – Hungary
Section 56 of Act II of 2007 on the Admission and Rightsof Residence of Third-Country Nationals establishesthat unaccompanied minors cannot be detained formigration matters in Hungary. A shelter houses 14–18year old minors who enter Hungary without an adult.
67
 This project is run by a national non-governmentalorganisation and funded by the European RefugeeFund and the Hungarian government. At the timeof interview, the shelter was housing 80 residentsmostly from Afghanistan and Somalia. Bedrooms areshared between 2–4 residents. Facilities include loungerooms; activities rooms with billiards, ping-pong andtable soccer; sports hall; and classrooms for Hungarianlanguage classes. The staff are highly committed tosupporting the wellbeing of residents. Legal supportis available through a specialist legal aid organisation.In partnership with another non-governmentalorganisation, the shelter has worked with one ofthe local schools to create appropriate educationopportunities for this group of young people.
 
024
appropriate medical care on return.
69
Swedenoers health checks to asylum seekers onarrival but this is only mandatory i thereare visible signs o illness that may impactpublic health.
70
i ks
Identity checks establish the key elementso a person’s identity such as their name,
country of origin, country of citizenship
and date o birth. This is sometimes easilyestablished when identity and traveldocuments, such as passports, concur withall other evidence. However, establishingidentity can prove dicult i the person hasbeen orced to fee a country o persecutionwithout original documentation or i theyare attempting to enter under an assumedname.
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This research cannot speak to theseissues; however, the inability to providedocumentation establishing identity shouldnot lead to prolonged detention, which may renderdetention arbitrary. Many countries house asylumseekers in open accommodation centres whileundertaking identity conrmation, including Sweden,Finland and Germany, while Canada directsits ocials to release individuals who areco-operating with eorts to establish theiridentity but whose identity cannot beestablished.
72
 
S ks
A security check establishes that theindividual concerned does not pose athreat to national security or public order. Ahistory o participating in terrorist networksor human rights abuses may, amongother things, preclude entry into the territory i it isconsidered an issue o national security or publicorder. Countries that include security concerns inrisk assessments include the United Kingdom, theU.S.A. and Hong Kong (Box 5). Such checks should beundertaken as soon as possible and in a timely mannerto ensure detention is not prolonged unnecessarily. Aswith identity checks, individuals who are co-operatingwith eorts to undertake a security check should notbe orced to endure prolonged detention.Individuals who are considered a securityrisk through this process must have anopportunity to understand the basis o thatassessment and have the chance to provideurther inormation to deend their claimsbeore an independent body with legaladvice. The assessment o risk associatedwith migrants who have completed a prisonsentence is included as an issue o characterin Section 4.2.4.
4.2.3 vb
An assessment o vulnerability can ensurea management program is sensitive to theparticular needs o vulnerable individualsand incorporates appropriate support.Such an assessment can identiy thoseindividuals who require additional supportto meet their basic needs or undertake dailyactivities, as well as identiying those whorequire extra assistance to understand and negotiatemigration procedures and to meet the conditions o
their release. Vulnerable individuals may have fewer
personal resources to enable them to cope with thedetention environment and may be athigher risk o harm.
73
In some countries ithas been established that some vulnerablegroups should never be detained, as
discussed in Sections 4.1 and 4.2.1. Vulnerable
individuals are best protected rom theharms associated with detention throughmanagement in a community setting.
Vulnerability assessments identify the
ways in which an individual’s positionin society places them in an unequalrelationship with others. Recent workon this concept ocuses on the contextsthat create vulnerability by raming assessmentsaround what people may be
vulnerable to
.
74
However,most vulnerability assessments currently in use identiycertain categories o people as being vulnerablebased on particular personal characteristics.
75
For thepurposes o this report we will discuss our areas thathave traditionally been used to identiy vulnerablegroups, as seen in Figure 3.
Provision forrelease of othervulnerableindividuals in law,policy or practice:Belgium, Malta,Canada, Indonesia,Sweden, NewZealand, AustraliaChildren, includingunaccompaniedminors, notdetained or aprovision forrelease into analternative inlaw, policy orpractice:Belgium,Italy, Ireland,Philippines,Hungary, HongKong, Australia,Denmark,Netherlands, theUnited Kingdom,France, Panama,New Zealand

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