044
deportation instead o independent return include thetrauma o orced repatriation; limitations on utureinternational travel due to having been deported roma country; a debt or deportation procedures; andthe loss o opportunity to pack up belongings, closebank accounts and arewell amily and riends beoredeparture.
170
Examples o negative consequences ornon-compliance can be seen in Box 2 New Zealand,Box 5 Hong Kong, Box 9 Sweden and Box 10 Indonesia.
Step 5.
4.5 Detain only as a lastresort in exceptional cases
The use o connement as a management toolwith people in administrative procedures is highlycontroversial. The management o irregular migrantsand asylum seekers through detention or othersubstantial restriction on reedom o movement iscontentious as it undermines an individual’s right toliberty and places them at greater risk o arbitrarydetention. International human rights laws andstandards make clear that immigration detentionshould be used only as a last resort in exceptionalcases ater all other options have been shown tobe inadequate in the individual case.
171
Detentionis inherently undesirable given that it undermineshuman rights and is known to have serious negativeconsequences or mental health, relationships andwellbeing. Certain vulnerable individuals should neverbe detained. Given these concerns, several countriesdo not use detention at all or migration matters,or substantially curtail its use through strict legal
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 14.
Using bail to create a financial consequence for non-compliance – Canada
Canada uses negative financial consequences,through a bail mechanism, as one tool in its systemfor managing irregular migrants and asylum seekersin the community.
162
Bail is one possible conditionof release from detention and is automaticallyconsidered at hearings to review the decision todetain. These hearings are undertaken by a memberof the Immigration and Refugee Board within 48hours of detention, then within another seven daysand then every 30 days thereafter, as required.
163
Detainees may request an earlier review hearing ifthey have new facts pertaining to the reasons fortheir detention. Eligible detainees may access freelegal representation through legal aid. At detentionhearings, the burden of proof lies with the borderservices agency to demonstrate a continuing needfor detention for a reason outlined in law. Thedetainee may also submit information to supporttheir case for release.At these hearings, r
elease may be ordered withor without conditions being imposed. A significantfactor in favour of release is if the detainee’sapplication is supported by a “bondsperson”. Abondsperson agrees to pay a monetary bond whichis paid up front, held in trust and then returned ifthe individual complies with the conditions of theirrelease, which may include, inter alia, providing anominated address, handover of travel documents,or reporting requirements. In some situations,the money does not need to be paid unless theperson does not comply with the conditions of theirrelease. A bondsperson is often someone who knowsthe detainee personally and is confident in theirwillingness to comply with authorities.
164
Several non-governmental organisations inCanada offer to act as a bondsperson for detaineeswho do not have either the resources or family/community ties required to make bail. Onewell-established organisation is the Toronto BailProgram, which has been operating since 1996 as aspecialist agency funded by the government.
165
Thisorganisation identifies eligible detainees through ascreening and assessment process and then supportstheir application for release. Case management,support to access basic needs, informationand advice, reporting and supervision are allcomponents of this program. The program costsCA$10–12 per person per day compared with CA$179for detention.
166
In the 2009–2010 financial year, itmaintained a 96.35% compliance rate.
167
Authoritiesrarely refuse an application for release supported bythis organisation. It is unclear what impact the bondfacility has on compliance rates, given any financialconsequences are born directly by the organisation.The use of assessment, case management and othersupports appears to be more significant than thethreat of financial consequences.
045
limitations, as seen in Section 4.1.In spite o this, detention is a growing elemento migration management in many countries and isunlikely to be entirely abandoned in the near uture.As a result, detention is included in the CAP model tobe used only as a last resort in line with internationalhuman rights standards in a small number o casesater all other options have been tried and ailed. Iauthorities can show beore a court that detention isnecessary and proportionate to the reasons or thedetention and that they have come to that decisionthrough a thorough assessment o the individualwithout discrimination, and all other options have beenexplored, then detention in appropriate conditions, olimited duration and with regular judicial review in linewith international standards may be considered thelast resort.This research was designed to ocus on thoseorms o migration management that allow migrantsto live with reedom o movement in the communitywhile their migration status is being resolved. As aresult o this ocus, any orm o management that isdesigned to substantially curtail or completely denyreedom o movement has been regarded as a
formof
detention.
172
The various
forms of
detention includetransit zones, closed accommodationcentres,
173
alternative places o detention,home detention (including curews) andtraditional immigration detention centres. Inaddition, electronic monitoring is includedhere as an alternative
form of
detention dueto its use to substantially curtail reedom omovement. Electronic monitoring devices,or ‘ankle bracelets’, are used to monitor thelocation o an individual whose movementwithin the community has been strictlylimited to certain areas or at particulartimes o day.
174
These devices are attached to theperson’s body, usually by being securely strappedaround the ankle. Some o these devices use GlobalPositioning System (GPS) technology to be able toidentiy the specic location o an individual at anygiven time. Other devices require the person wearingthe device to be at a base unit at set times and is usedto monitor compliance with curews. All such ormso detention are covered within this section becausethey substantially curtail reedom o movement andconsequently require an extremely high thresholdbeore application and require the same high level oregulation including judicial review and independentaccess and oversight as traditional orms o detention.
4.5.1 immg d dd
The impact and experience o immigration detentionvaries considerably depending on the structuresunderpinning the detention system and the conditionsand culture established within particular detentioncentres. The International Detention Coalition’s
Checklist for Monitoring Places of ImmigrationDetention
can be ound in Appendix III.
175
This sectionwill outline some o the key areas to review andmonitor to ensure immigration detention standardsremain at an acceptable level, although this list is notcomprehensive. These areas include:
• Grounds for detention• Independent oversight including automatic judicial
review and monitoring
• Avenues for release• Length of time in detention• Conditions• Treatment including behaviour management• Access to information and the outside world
Gud f d
The Universal Declaration o Human Rightsprovides that
everyone
has the right to libertyand to protection rom arbitrary detention.As it intereres with these rights, any useo immigration detention must meet thosestandards that have been established ininternational law including,
inter alia
, that itis lawully applied; that it is reasonable andnecessary in the individual case; that it isproportionate to the reasons or the detention; andthat it is applied without discrimination.
176
Alternativesshould rst be considered and detention should onlyused as a last resort in exceptional cases. Detentionshould be avoided or particular groups in accordancewith international, regional and national law.
177
Whenused, it must be necessary and proportionate to theobjectives o identity and security checks; prevention oabsconding; or compliance with an expulsion order. The
Specific groundsfor detentionestablished inlaw:Lithuania,Finland, Hungary,Germany, theUnited Kingdom
046
International Detention Coalition’s position relating tothe detention o reugees, asylum seekers and migrantscan be ound in Appendix II.
idd vgh udg um judvw d mg
The decision to restrict reedom o movement throughconnement in a dened location is one o thestrongest uses o power by a government against anindividual. Decisions regarding connementare best regulated through automatic,prompt and regular independent judicialreview.
178
The use o a court to review thedecision to detain establishes a system oindependent and non-partisan oversightwhen the power o the state is beingexercised in this way. Such transparencyensures that the reasons or a decision todetain have been well established by thedecision maker and that the individualacing detention has a chance to raise theirown concerns regarding the decision. It isimportant that an individual has access tolegal counsel and a chance to instigate a judicial review o their detention, both uponentering detention, during their detentioni their circumstances change or through automaticperiodic review at set times.While a court can review the details o a decision todetain, the conditions o detention and the treatmento detainees are best monitored through independentaccess to places o detention.
179
Governments areencouraged to accede to the UN Convention AgainstTorture and its Optional Protocol, which introducesindependent monitoring o places o detention asa key preventative mechanism, includingunannounced visits and roles or the UNSubcommittee on Prevention o Tortureand National Preventative Mechanisms.
180
National human rights institutions, prisoninspection authorities or non-governmentalorganisations are oten involved inmonitoring places o detention. Independentmonitoring can ensure that the conditionso detention do not all below acceptablestandards by creating a public reportingmechanism that increases transparencyand accountability. Such monitoring caninclude appointed and unannounced visits;interviews with current and ormer detainees;interviews with sta including management,guards, contracted workers and medical
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 15 .
Using lawyers to increase access to asylum procedures andto monitor places of detention at the border – Hungary
Hungary has pioneered a border monitoring projectthat is increasing the access of lawyers to places ofdetention at the border.
181
A tripartite agreementbetween border police, UNHCR and the HungarianHelsinki Committee allows designated lawyers tovisit border detention facilities to inform detaineesof their procedural rights including the right toaccess the asylum system and to benefit fromfree legal assistance; to monitor the situation ofdetainees and the conditions of their detention; andto bring the findings of these visits to the attentionof the authorities and to the public. Lawyers arepermitted to interview current detainees and reviewde-identified case files of those individuals whohave been deported. The project includes trainingfor both management and field staff of the borderpolice on protection sensitive entry systems andcommunication techniques with asylum seekerswith special needs. Through this work, lawyersprovide addition mechanisms to identifydetainees who may be eligible to access asylumprocedures and to provide independent oversight ofthe conditions of detention.
Independentoversightincludingautomatic judicialreview and/or monitoring:Argentina, Austria,Estonia, Denmark,France, Hungary,Italy, Latvia,Luxemburg, NewZealand, Canada,Hungary, Sweden,the UnitedKingdom
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