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United Nations: New International Guidelines on Detention of Asylum-Seekers

(Sept. 27, 2012) On September 21, 2012, the Office of the United Nations High Commissioner for Refugees (UNHCR) issued new international guidelines on the detention of persons seeking asylum, a practice the UNHCR opposes in principle. Issuance of the Detention Guidelines, which supersede those issued by the UNHCR in 1999, is related in particular to the agency’s concern that the use of detention is growing in a number of countries. (UNHCR Concerned at Detention of Asylum-Seekers, Releases New Guidelines, UNHCR website (Sept. 21, 2012); Dan Tagliogli, UN Refugee Agency Issues New Guidelines on Detention of Asylum-Seekers, PAPER CHASE NEWSBURST (Sept. 24, 2012).) According to the UNHCR report Asylum Levels and Trends in Industrialized Countries, the 44 countries covered in it saw an estimated 441,300 asylum claims registered in 2011, some 73,300 applications (20%) more than in 2010 (368,000). This is the highest level since 2003, when 505,000 asylum claims were lodged in the industrialized countries. (ASYLUM LEVELS AND TRENDS IN INDUSTRIALIZED COUNTRIES (Mar. 27, 2012), UNHCR website.)

In addition to seeking to assure good treatment of asylum-seekers, the UNHCR Guidelines seek to promote alternatives to detention. Possible alternative measures that might be applied are set forth in Annex A of the Guidelines. They include surrender of documentation, periodic reporting to authorities, directed residence, community supervision arrangements, provision of a guarantor/surety, and release on bail or bond. (DETENTION GUIDELINES (UNHCR website (2012).)

UNHCR spokesman Adrian Edwards stated that 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.” He added, “[w] 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.” (UNHCR Concerned at Detention of Asylum-Seekers, Releases New Guidelines, supra.)

In terms of scope, the Detention Guidelines “reflect the state of international law relating to detention – on immigration-related grounds – of asylum-seekers and other persons seeking international protection,” as well as the international law applicable to detention of stateless persons seeking asylum. (Id.) The Guidelines may also apply mutatis mutandis to non-asylum-seeking stateless persons or other migrants, even though the Guidelines do not specifically cover such persons. (Id.)

Detention is defined under the Guidelines as “the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centres or facilities.” (DETENTION GUIDELINES at 9, supra.)

The first guideline in the document is that “the right to seek asylum must be respected.” It asserts the right of everyone “to seek and enjoy in other countries asylum from persecution, serious human rights violations and other serious harm” and declares that “[s]eeking asylum is not, therefore, an unlawful act.” (Id. at 12.) Citing the 1951 Convention Relating to the Status of Refugees, Guideline 1 further states “that asylum-seekers shall not be penalised for their illegal entry or stay, provided they present themselves to the authorities without delay and show good cause for their illegal entry or presence.” (Id.; The 1951 Refugee Convention (last visited Sept. 26, 2012) [has hyperlinks to the text of the Convention and the 1967 Protocol].)

According to Guideline 3, “detention must be in accordance with and authorised by law” it also states that “[a]ny deprivation of liberty that is not in conformity with national law would be unlawful, both as a matter of national as well as international law.” Nevertheless, it states, “although national legislation is the primary consideration for determining the lawfulness of detention, it is ‘not always the decisive element in assessing the justification of deprivation of liberty,'” given that the purpose of preventing arbitrary deprivation of a person’s liberty, in particular, must be taken into consideration. (DETENTION GUIDELINES at 14, supra, citing to Lokpo and Touré v. Hungary (2011), ECtHR, App. No. 10816/10, ¶ 21 (final decision), REFWORLD.)

Guideline 4 is a prescription against arbitrary detention. It calls for decisions to detain to be based on an evaluation of the individual’s particular circumstances. It has a number of sub-guidelines, e.g., 4.1,”detention is an exceptional measure and can only be justified for a legitimate purpose.” (DETENTION GUIDELINES at 16, supra.) Guideline 9 states, “the special circumstances and needs of particular asylum-seekers must be taken into account.” The particular asylum-seekers referred to in this guideline include victims of trauma or torture, women, child victims or potential victims of trafficking, the disabled, older asylum-seekers, and “lesbian, gay, bisexual, transgender or intersex asylum-seekers.” ( 33.)