There Are Alternatives

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There are alternatives

A handbook for preventing Including the Revised unnecessary immigration Community Assessment and detention (revised edition) Placement model (CAP) The International Detention Coalition (IDC) is a unique global network, of over 300 civil society organisations and individuals in more than 70 countries that advocate for, research and provide direct services to refugees, asylum-seekers and migrants affected by immigration detention.

Coalition members are supported by the IDC Secretariat offce, located in Melbourne, Australia, and regional staff based in Berlin, Germany, London, United Kingdom, Geneva, Switzerland, Mexico City, Mexico and Kuala Lumpur, Malaysia.

IDC Secretariat Level 1, 112 Langridge Street Melbourne Victoria 3066 Australia Email: [email protected] Website: www.idcoalition.org

ISBN Paperback: 978-0-9871129-8-9 ISBN PDF version: 978-0-9871129-9-6

Published by the International Detention Coalition Melbourne, Australia

Recommended citation: Sampson, R., Chew, V., Mitchell, G., and Bowring, L. There Are Alternatives: A Handbook for Preventing Unnecessary Immigration Detention (Revised), (Melbourne: International Detention Coalition, 2015).

Design and layout by Haydn Jones Communication Design

The views expressed in this document are those of the authors.

This report is available online at http://www.idcoalition.org Acknowledgements

The revised edition of this Handbook was written by Dr. Robyn Sampson of the Swinburne Institute for Social Research at Swinburne University of Technology as well as Vivienne Chew, Grant Mitchell and Lucy Bowring of the International Detention Coalition (IDC). Research for this revised edition was undertaken by Adele Cubbitt, Elba Coria Marquez, Gisele Bonnici, Ben Lewis, Jem Stevens, Vanessa Martinez, Leeanne Torpey, Libby Zerna, Katherine Wright, Caroline Stephens, Athena Rogers, Jocelyne Cardona, Ahmed Correa, Beth Edgoose, Danielle Grigsby, Shaista Kiran, Thais Pinheiro, Catherine Stubberfeld, Natasha Warchalok and Rosario Rizzo Lara.

The IDC would like to express gratitude to all the interviewees who made time in their busy schedules to contribute to this research.

The IDC gratefully acknowledges the fnancial support of the Open Society Foundation, Oak Foundation, Ford Foundation, Planet Wheeler Foundation, CAMMINA, and AVINA, which made this Revised Edition possible.

The frst edition of this Handbook was a collaboration with the former La Trobe Refugee Research Centre of La Trobe University in Melbourne, Australia. The original research was undertaken by Robyn Sampson as part of her doctoral studies, which were made possible by a La Trobe University Post Graduate Award. Her work on the revised edition was made possible by a grant of the Emerging Research Priorities scheme of Swinburne University of Technology.

We would like to thank the former and current members of the International Detention Coalition Advisory Group and other IDC members for their support and comments on an earlier draft of this report. Table of Contents

Preface I

Executive summary II

Key fndings 1

1. Introduction 2

2. The case for alternatives 7

3. Community Assessment and Placement: Introducing the Revised CAP model 16

4. Liberty: Presumption against detention 18

Key issue: Ensuring the right to liberty for child migrants 22

5. Minimum standards 27

6. Identifcation and decision-making 35

7. Case management 47

Key issue: Resolving migration status 54

8. Placement options 59

Key issue: Hosting transit migrants 63

9. Conclusion 75

Suggested further reading 77

Glossary 78

Appendix A – Research methods 81

Endnotes 85 List of Boxes Box 1. A presumption of liberty in law - Argentina 19 Box 2. Alternatives to detention in law - Poland, Croatia and New Zealand 20 Box 3. Prohibiting the detention of vulnerable individuals - China 21 Box 4. Age assessments 23 Box 5. Ending immigration detention of children - A snapshot of global trends 24 Box 6. Appointment of a guardian 26 Box 7. Unaccompanied children are not to be detained - Hungary 26 Box 8. Ensuring asylum seekers can meet their basic needs - Spain 29 Box 9. Formal status and documentation - Various countries 30 Box 10. Regular review - Canada and the European Union 34 Box 11. Screening and assessment in a mixed migration context - Zambia 37 Box 12. Screening and assessment - the United States 39 Box 13. Prohibiting the detention of vulnerable individuals - Turkey 41 Box 14. Identifying individuals who do not need to be detained - Hong Kong 45 Box 15. Case management in the migration context - Two case studies 51 Box 16. Intensive case resolution with complex cases - Australia 52 Box 17. Making plans for life after return - the Netherlands 54 Box 18. Preparing families for independent departure - Belgium 55 Box 19. Options for those who cannot be deported - Various countries 58 Box 20. Protecting victims of traffcking - Europe 58 Box 21. Reception in the community - Sweden 62 Box 22. Closing detention centres in favour of alternatives - Greece 64 Box 23. Reporting as a monitoring mechanism - Various countries 68 Box 24. Supervision during removal proceedings - the United States 69 Box 25. Bail as a consequence for non-compliance - Canada 70 Box 26. Detention release options - Various countries 72 Box 27. Detention conditions that respect dignity and well-being - Sweden 74

List of Figures Figure 1: The Revised CAP model - Community Assessment and Placement 16 Figure 2: Understanding the population through individual assessment 36 Figure 3: Assessing vulnerability 40 Figure 4: The case management process 49

THERE ARE ALTERNATIVES (REVISED EDITION)

Preface

What’s new in the revised edition?

The International Detention Coalition frst published There Are Alternatives in 2011. This revised edition updates and expands the original work using the fndings from a new piece of research and the insights and expertise accrued in the four years since the frst Handbook was launched. Begun in 2013, the new research focused on 20 additional countries. It sought to identify alternatives in a wider range of countries including those experiencing ‘transit’ migration, those hosting large populations of refugees, asylum seekers, stateless persons or irregular migrants, and/or those with limited resources available to manage such populations. Seventy-one participants were interviewed from government, non-government organisations and international bodies. This Revised Edition contains a number of additions including: Æ A Revised Community Assessment and Placement (CAP) Model. While the core elements of the CAP Model remain the same, the model has been redesigned to provide a clearer indication of overarching principles and standards, and the key processes of identifcation and decision-making, case management and placement. Æ New and updated country case studies based on further research. New additions expand our knowledge of alternatives in countries experiencing transit migration, large numbers of irregular migrants and/or those with limited resources available for migration management. Æ A revised and strengthened defnition of ‘alternatives to detention’ which incorporates the broad range of persons who may be subject to or at risk of detention by virtue of their immigration status.

Our approach

This Handbook is written from the perspective that in developing strong migration governance systems, States should exercise their authority at international borders in line with their human rights obligations. In particular, they should seek to govern borders in a way that: Æ Treats all asylum seekers, refugees and migrants humanely and in compliance with international and national law Æ Benefts local populations and minimises national security concerns Æ Achieves case resolution in a timely manner Æ Ensures cost effectiveness

Migration governance objectives cannot be achieved with a rigid control-and-enforcement approach. A more comprehensive and holistic approach is needed that is tailored to each country’s specifc context. This Revised Handbook is designed to assist in this process and to contribute to current policy debates. The Handbook presents mechanisms that prevent unnecessary detention and manage and resolve cases in a fair, timely and humane manner from a community setting. Policy makers and other stakeholders will be able to draw upon our conceptual framework to assess current practice and explore options. Further, the Handbook can act as a resource for stimulating debate in international and regional forums by establishing concepts and presenting concrete examples for consideration.

I THERE ARE ALTERNATIVES (REVISED EDITION)

Executive summary

Introduction The case for alternatives Defining alternatives to detention This Handbook was written in response to the growing interest of governments, civil The phrase ‘alternatives to immigration society and other stakeholders in fnding detention (‘alternatives’)’ is not an established reliable, cost-effective and humane ways legal term nor a prescriptive concept, but a of managing asylum seekers, refugees and fundamentally different way of approaching the migrants outside of detention. Immigration governance of migration. Alternatives shift the detention is a growing phenomenon as govern- emphasis away from security and restrictions ments strive to regulate unwanted cross- to a pragmatic and proactive approach focused border migration. Detention capacity continues on case resolution. An alternative approach to expand despite well-established concerns respects asylum seekers, refugees and migrants that it interferes with human rights, harms as rights holders who can be empowered to health and wellbeing and causes unneces- comply with immigration processes without the sary human suffering. Further, detention is an need for restrictions or deprivations of liberty. expensive policy that is diffcult to implement and regularly fails to fulfl its objectives. With this in mind, the IDC defnes alternatives to detention as: Over the past fve years, the International Detention Coalition (IDC) has undertaken a Any law, policy or practice by which program of research to identify and describe persons are not detained for reasons alternatives to immigration detention (‘alter- relating to their migration status. natives’). This Handbook collates the fndings of this research to offer governments a way of The IDC’s approach to alternatives moving forward with this diffcult area of policy. It is important to note that the IDC considers The Handbook works to instrumentalise protec- that alternatives: tions enshrined in international law and to Æ Do not apply only to vulnerable individuals strengthen systems so that: such as children or refugees Æ Detention is shown to be legal, necessary Æ Do not refer only to accommodation and proportionate in the individual case; models Æ Detention is only used as a last resort in Æ Do not necessarily require the application of exceptional cases; conditions such as bail/reporting Community options are as effective as Æ Æ Do not refer to alternative forms of possible. detention

Further, when we take an international perspective and compare existing migration policy and practice across different contexts, we fnd: Æ Most countries do not use detention as the frst option in the majority of cases; Æ A number of countries rarely resort to detention, if at all.

II THERE ARE ALTERNATIVES (REVISED EDITION)

Benefits of alternatives asylum seekers, refugees and migrants are better able to contribute to society if residency The research has identifed several benefts is secured, or better equipped for facing the in restricting the application of detention challenges of departure from the country. and prioritising community-based management options. The key benefts are that: Alternatives are highly effective Alternatives can achieve high compliance rates, Alternatives are more affordable than achieving up to 95% appearance rates and up detention to 69% independent departure rates for refused Alternatives have been shown to be up cases. Alternatives, particularly those incor- to 80% cheaper than detention. In the porating case management and legal advice, majority of cases, detention is signifcantly also assist in achieving effcient and sustainable more expensive than alternatives. Alterna- outcomes by building confdence in the immi- tives have much lower operation costs than gration process and reducing unmeritorious detention, increase independent departures appeals. This can improve fnal immigration (compared to deportations) and avoid litiga- outcomes, be that integration for individuals tion and compensation claims resulting from granted status or departure for refused cases. wrongful detention or harmful impacts. Common characteristics of successful Alternatives are more humane alternatives Alternatives are better placed to uphold the The research identifed common character- rights of asylum seekers, refugees, stateless istics of successful alternatives and, where persons, irregular migrants and other migrants. able, established the reasons why these They can avoid the harms of detention, reduce factors contributed to positive compli- exposure to overcrowding and long-term ance, case resolution, cost, and health and detention, and enable greater access to wellbeing outcomes. Successful alternatives programs that support health and welfare. rely on a range of strategies to keep indi- Effective management in the community is viduals engaged in immigration procedures also more likely to uphold fundamental civil, while living in the community. Although such political, economic, social and cultural rights, programs sometimes make use of residential thereby contributing to improved individual wellbeing and self-suffciency. This ensures

A COMPARISON OF DETENTION AND ALTERNATIVES

Detention Alternatives Æ Is costly Æ Cost less than detention Æ Is harmful to health and wellbeing Æ Support health and wellbeing Æ Interferes with human rights Æ Respect and fulfll human rights Æ Does not encourage participation in case Æ Strengthen participation in case resolution resolution processes processes Æ Is not an effective deterrent Æ Improve voluntary and independent Æ Can contribute to decisions to undertake departure rates secondary movement Æ Can help stabilize vulnerable individuals Æ Can expose governments to litigation for in transit unlawful detention and for the impacts of Æ Avoid wrongful detention and reduce detention on health overcrowding and long-term detention

III THERE ARE ALTERNATIVES (REVISED EDITION)

facilities, the location of the individual is not of primary concern. Instead, the focus is on: Research to date suggests asylum Æ Screening and assessing each seekers, refugees and migrants: individual case Æ Rarely abscond while awaiting Æ Providing case management, legal advice the outcome of a visa application, and other mechanisms that support the status determination or other individual to work towards case resolution immigration process, if in their Æ Ensuring basic needs can be met intended destination. Æ Applying conditions or limited restrictions Æ Are better able to comply with only where necessary. requirements if they can meet their The most effective laws, policies and practices basic needs while in the community. for preventing unnecessary detention Æ Are more likely to accept and determine (i) whether detention is truly comply with a negative decision necessary in an individual case and (ii) how best on their visa application, status to manage and support the individual in the determination or other immigration community to achieve case resolution. These process if they trust: and other core characteristics are brought Æ They have been through a fair together in the Revised Community Assess- and effcient process ment and Placement model (Revised CAP). Æ They have been informed and supported through that process Æ They have explored all options to Key elements of successful remain in the country legally alternatives Æ Appear less likely to abscond in The IDC’s program of research has iden- a country they intend to transit if tifed the main elements of successful they can meet their basic needs alternatives in terms of cost, compliance through legal avenues, are not at and wellbeing outcomes. These include: risk of detention or refoulement, Æ Using screening and assessment to and remain hopeful regarding future tailor management and placement prospects. decisions. Æ Further, while secondary movement Providing holistic case management Æ cannot always be prevented, focused on case resolution. screening and assessment can Æ Focusing on early engagement. assist in understanding motivating Æ Ensuring individuals are well- factors and facilitating registration informed and trust they have been through a fair and timely process. with authorities. However, complete Æ Ensuring fundamental rights are control in all cases is unrealistic. respected and basic needs are met. Solutions for such situations include Æ Exploring all options to remain in the proactive preventative mechanisms country legally and all avenues for that address the root causes of voluntary or independent departure. irregular migration and build a Æ Ensuring any conditions imposed are stronger international system of not overly onerous. burden sharing. These lessons are brought together in the Revised CAP model.

IV THERE ARE ALTERNATIVES (REVISED EDITION)

Community Assessment and Placement: The Revised CAP Model can be used to: Introducing the Revised CAP model Æ Analyse and assess existing laws, policies and practices in order to identify gaps, Using a strengths-based approach, the IDC’s needs, priorities and goals program of research identifed alternatives in a range of countries and incorporated these Æ Obtain ideas about what is possible and, into one framework. The Revised Community using these, develop, expand or improve Assessment and Placement Model (Revised alternatives in local contexts CAP model) is a tool for governments, civil Æ Facilitate dialogue with offcials in different society and other stakeholders to build arms of government, between States and systems that ensure detention is only used across stakeholders as a last resort and that community options Æ Guide the decision-making process to result in optimal outcomes. The Revised CAP ensure immigration detention is only used model combines the overarching principles as a last resort of liberty and minimum standards with the Æ Train offcials, practitioners and stake- key processes of identifcation and decision- holders on how to work towards ending making, placement and case management. unnecessary detention and how to develop and implement alternatives

V THERE ARE ALTERNATIVES (REVISED EDITION)

Liberty: Presumption against detention Minimum standards include: Æ Respect for fundamental rights The frst overarching principle of alternatives is the right to liberty including a presumption Æ Meeting basic needs against detention. The right to liberty of person Æ Legal status and documentation is a fundamental human right, enshrined in all Æ Legal advice and interpretation major international and regional human rights Æ Fair and timely case resolution instruments. It is guaranteed to all persons Æ Regular review of placement decisions irrespective of legal status including refugees, asylum seekers, undocumented migrants Identification and decision-making and stateless persons. The right to liberty of person imposes a number of specifc limita- Successful migration governance programs tions on States’ ability to detain, including understand that refugees, asylum seekers, that detention is justifed by a legitimate State stateless persons, irregular migrants and objective, is in accordance with the law, and other non-citizens without legal status are a is not arbitrary. In many countries, a migrant’s highly diverse population with different needs right to liberty is preserved throughout the and motivations. Differentiating between migration process. In these countries, immi- these different groups will ensure informed gration offcials are prevented from using decisions about management and placement confnement when other options suffce. options. Such decisions can be reviewed and adjusted as needed with regular review. The right to liberty and a clear presumption against detention are established by Through screening and ongoing assessment, adopting laws, policies and practices that: authorities can identify and assess levels of risk and vulnerability as well as the strengths Æ Establish a presumption of liberty and needs of each person. The research iden- Æ Provide a mandate to apply alternatives in tifed several areas of assessment including: the frst instance Æ Only permit detention when alternatives Æ Legal obligations cannot be applied Æ Identity, health and security checks Æ Prohibit the detention of vulnerable Æ Vulnerability individuals Æ Individual case factors Æ Community context Minimum standards

The second principle underpinning alterna- Case management, support and resolution tives is minimum standards. There are a number The most successful alternatives use case of minimum standards which States must management across all stages to ensure a coor- respect and uphold for all individuals, regard- dinated and comprehensive approach to each less of legal status. These minimum standards case. Case management centres on under- also help to ensure the proper functioning of standing and responding to the unique needs migration governance systems and the effec- and challenges of the individual and their tiveness of alternatives. Without minimum context. Case management builds on an individ- standards in place, alternatives are less likely ual’s strengths, identifes vulnerability or protec- to achieve desired rates of compliance, case tion concerns, and addresses needs as able. resolution and respect for human rights. The approach promotes coping and wellbeing by facilitating access to support services and networks. By ensuring timely access to

VI THERE ARE ALTERNATIVES (REVISED EDITION)

all relevant information and meeting other Community without conditions serious needs as able, case management also Liberty – or unconditional placement in the builds confdence in the immigration process community – is the preferred placement option and promotes informed decision-making by and is appropriate for the majority of cases. both the individual and government decision- This includes when there is no legal basis to maker. Case management can range in intensity detain and when such placement will meet a from limited engagement with self-suffcient State’s legitimate aim, such as ensuring comple- migrants through to intensive support for tion of a legal migration process. Satisfactory complex cases and/or for return preparation. outcomes are often achieved when unconditional placement in the community is supported Case resolution is not the same as case with minimum standards and case manage- management, although they often overlap. ment. An individual placed in the community Case resolution is focused on fnding a without conditions may nonetheless be respon- permanent or temporary migration outcome. sible for ensuring their good status and active While this responsibility ultimately sits with participation in the applicable migration immigration authorities, case manage- procedure. This might include appearing at ment can contribute to timely case resolu- immigration appointments, hearings or inter- tion by identifying legal, practical and personal views, undertaking acts to assist in achieving barriers to likely outcomes and working on case resolution, and respecting standard shared solutions. Case resolution can draw visa or residency requirements. The require- from a range of solutions including various ment of normal participation in migration visa and departure options. These include, procedures differs from conditions or restric- inter alia, regularisation programs, humani- tions on freedom of movement, as the latter tarian or protection visas, other permanent are more onerous and impact on a person’s visas, short-term ‘bridging’ visas, departure right to liberty and freedom of movement. to a third country, return to a different area of the country of citizenship, and additional resources to support sustainable return.

Placement options

There are various placement options available to the State in managing an individual pending case resolution. These include placement in the community without conditions or placement in the community with such conditions as determined to be necessary and proportionate in the individual case. Immi- gration detention is included as the measure of last resort to be used in exceptional cases, provided the standards of necessity, reasonableness and proportionality have been met.

VII THERE ARE ALTERNATIVES (REVISED EDITION)

Conditions or limited restrictions Detailed information on areas of detention in the community that require vigilance and oversight to avoid arbitrary and excessively harmful detention If, following screening and assessment, are available elsewhere.2 The broad areas serious concerns arise about unconditional of concern include detention and immigra- placement in the community, there are a range tion procedures; treatment and safeguards; of additional mechanisms that can be intro- safety, order and discipline; material condi- duced to promote ongoing engagement tions; activities; health care; personnel/staffng; and compliance with authorities. As condi- and persons in situations of risk/vulnerability. tions invariably involve some restrictions on an individual’s right to liberty, these must always be shown to be necessary, reason- Conclusion able and proportional in the individual case. Dealing with irregular migration is an everyday Conditions may include the following mecha- area of governance. As the Revised Handbook nisms: shows, with effective laws and policies, clear systems and good implementation, asylum Æ Monitoring seekers, refugees and migrants can be Æ Supervision managed in the community in most instances. Æ Surety and other consequences for non- Screening and assessing the cases of individ- compliance uals subject to, or at risk of, detention enables authorities to identify needs and introduce Detention as a last resort appropriate supports and, as needed, conditions in the community. Through these International human rights law and standards approaches, authorities can manage people in make clear that immigration detention should the community in the majority of cases without be used only as a last resort in exceptional the fnancial and human cost that detention cases after all other options have been shown incurs. The Revised Handbook shows cost- to be inadequate in the individual case. The effective, reliable and humane alterna- use of confnement with people in an adminis- tives are employed in a variety of settings trative procedure is highly controversial due to to the beneft of a range of stakeholders its negative impact on health, wellbeing and affected by this challenging area of policy. human rights. Detention should be avoided entirely for vulnerable individuals and be in accordance with international, regional and national law and standards. This includes the requirement that the standards of necessity, reasonableness and proportionality have been met in the individual case. Notwith- standing these serious concerns, detention is included here to be used only as a last resort for exceptional cases after a comprehensive process has determined before an independent judicial authority that all other options will not address the identifed concerns.

VIII THERE ARE ALTERNATIVES (REVISED EDITION)

Key fndings

International human rights laws and standards make clear that immigration detention should be used only as a last resort in exceptional cases after all other options have been shown to be inadequate in the individual case. This Handbook provides readers with the guidance needed to successfully avoid unnecessary detention and to ensure community options are as effective as possible. This edition presents the Revised Community Assessment and Placement model (Revised CAP model) alongside new and updated country examples. While the basic elements of the original CAP model remain the same, the revised model separates the overarching principles from the bureaucratic processes involved.

There are alternatives Alternatives are more affordable

There is a range of alternatives to detention Alternatives are up to 80% cheaper that governments can draw upon to reduce than detention due to lower running unnecessary detention and increase the costs. They also eliminate costly liti- success of community-based manage- gation and compensation claims. ment. Many solutions exist. In fact, the IDC has identifed more than 250 examples in over 60 countries. This includes countries Alternatives are more humane with large numbers of asylum seekers, Alternatives are less harmful than detention. refugees and migrants and fewer resources. Community placement supports health and wellbeing and upholds human rights. Alter- natives are not only more humane, but also Alternatives can be applied see asylum seekers, refugees and migrants in the majority of cases better placed to move forward with their Detention is rarely necessary while working life once their migration status is resolved, with asylum seekers, refugees and migrants whether it be integration or departure. towards satisfactory case resolution. Placement options range from open accommodation in the community with minimal Alternatives are highly effective requirements for low-risk groups through Alternatives achieve effective case reso- to intensive supervision and case manage- lution outcomes. Alternatives have been ment for populations of highest concern, shown to achieve up to 95% appearance such as non-citizens facing deporta- rates and up to 69% voluntary and inde- tion after completing a prison sentence. pendent return rates for refused cases.

1 THERE ARE ALTERNATIVES (REVISED EDITION)

dilemma of monitoring legal migration 1. Introduction programs and managing irregular migrants while also ensuring protection is available for asylum seekers, refugees, stateless 1.1 Governing migration persons and vulnerable individuals. The governance of migration is evolving in response to changes in the patterns and make-up of migrant populations. The number 1.2 The use of detention in of migrants crossing national borders has migration governance increased over recent decades.3 It is well docu- The use of immigration detention has been mented that migration is associated with a growing over the last twenty years as range of social and economic benefts for governments strive to control borders.8 In destination countries as well as for those who some countries, concerns about national migrate.4 Governments have recognised these security and terrorist attacks have justifed benefts by developing avenues to enable legal the expansion of detention.9 Whatever migration for a variety of purposes including the cause, many countries have intensi- employment, education, family reunion and fed efforts to reduce the number of asylum tourism. Regular migration fows through seekers, refugees and irregular migrants on these legal avenues far outweigh irregular their territory.10 Detention has become a core movement.5 However, signifcant migration element of this trend. Previously, detention does occur outside of legal channels. In 2010, was restricted to short periods during depor- the International Organisation for Migration tation. Now, it is used by several countries (IOM) estimated 10-15% of the world’s 214 on-arrival or for the duration of claims million migrants were undocumented, the processing. Increasingly, destination countries majority of whom had become irregular are investing in the capacity of neighbouring after frst travelling via legal avenues.6 transit countries to intercept and detain foreigners on the move.11 This ‘externalization’ The regulation of migration is a core function of border control is evident in the European of modern governments, resulting in a Union, which has been investing signifcantly range of systems to govern the movement in the capacity of its neighbours including of foreigners on a nation’s territory. Despite Ukraine, Libya and Turkey to detect, detain and the success of many of these systems in deter asylum seekers, refugees and migrants managing large movements of people well, who are planning irregular onward travel to some people have come to believe migration Europe.12 Similar dynamics can be seen in the is out-of-control. Such perceptions are often political and fnancial investments made by linked to concerns about national security the United Sates in the detention capacities and crime, job availability, and the erosion of Guatemala and Mexico, and by Australia 7 of cultural identity and traditions. In these in Indonesia, Nauru and Papua New Guinea.13 situations, irregular migration can become As a result of such trends, it is estimated that a point of contention and political debate, hundreds of thousands of people are detained making the regulation of migration a chal- around the world, although the number of lenging and sensitive area of policy. detainees at any one time is unknown.14

Although managing migration is a constantly changing and complex task, it is an everyday phenomenon and a normal part of operating a government. All countries are facing the

2 THERE ARE ALTERNATIVES (REVISED EDITION)

1.3 Concerns regarding duced over the past 20 years, the number immigration detention of irregular arrivals has not reduced.19

Immigration detention is used by governments as both a migration governance tool There is no empirical and as a political tool.15 As a tool for managing irregular migration, it is used to limit the evidence to suggest entry of irregular migrants to the territory; for that the threat of being identity, health and security checks and other detained deters irregular screening processes; to hold individuals with migration no valid visa while their status is assessed; and to ensure compliance with negative visa application outcomes, namely deportation. Several studies have been undertaken to establish which factors most impact the choice Detention is also sometimes used by govern- of destination of asylum seekers and irregular ments in an attempt to address broader social migrants.20 According to this research, the and political issues, such as deterring future principal aim of asylum seekers and refugees asylum seekers and irregular migrants, to is to reach a place of safety.21 Most asylum provide a sense of control over borders for seekers have very limited understanding of citizens, and to respond to political pressure.16 the migration policies of destination countries In this sense, detention is a symbolic act before arrival and are often reliant on people used to convey a message to a range of smugglers to choose their destination.22 Those people who are not being detained them- who are aware of the prospect of detention selves. While these are important and complex before arrival believe it is an unavoidable part issues impacting governments, there are of the journey, that they will still be treated serious concerns about the use of detention humanely despite being detained, and that it for these purposes. The use of detention is a legitimate right of States if undertaken for for these reasons is unsupportable given: identity and health checks.23 Rather than being Æ Detention is not an effective deterrent infuenced primarily by immigration policies Æ Detention does not support case such as detention, most refugees choose desti- resolution, including departure or nations where they will be reunited with family integration or friends; where they believe they will be in a Æ Detention has been shown to harm health safe, tolerant and democratic society; where and wellbeing there are historical links between their country Æ Detention interferes with human rights and the destination country; where they can already speak the language of the destina- Æ Detention is expensive tion country; or where they believe they will be able to fnd secure work quickly due to general 1.3.1 Detention is not an effective deterrent levels of prosperity.24 One study also found There is no empirical evidence to suggest that the majority of refugees who had expe- that the threat of being detained deters rienced detention did not pass on a message irregular migration.17 Rather, existing evidence, of deterrence to people overseas as the relief and government and judicial statements18 of escaping persecution and reaching a place suggest a policy of detention is neither of safety overrode the trauma and sense of effective nor reasonable in deterring refugees rejection they had experienced as a result of and irregular migrants. Despite increas- detention.25 This evidence shows detention ingly tough detention policies being intro- has little impact on destination choices.

3 THERE ARE ALTERNATIVES (REVISED EDITION)

1.3.2 Detention does not support health and energy levels.29 This can reduce case resolution their ability to organize administrative issues, such as sourcing documents Immigration detention can be ineffective and to prove their identity, or to access legal counterproductive at ensuring compliance with advice regarding future prospects. immigration processes. Immigration detention can negatively impact case resolution because the risk of detention and deportation will often Impact of detention on departure deter people from engaging with authori- In relation to departure, detention also fails to ties in the frst place. Further, the mental and guarantee departure outcomes for persons physical harms caused by detention impact with no right to remain in the country. Many an individual’s ability to comply with immi- factors infuence a person’s willingness to gration processes. Immigration detention is return to their country of origin, most of usually experienced as an extreme injustice, as which fall outside the infuence of domestic detainees feel they are treated like criminals policies.30 Detention does not easily overcome despite believing they are innocent of any these broader issues to result in return crime.26 This feeling of injustice can saturate decisions.31 In terms of deportation, there their experience of the assessment process is a gap between the number of migrants and lead them to believe that their case detained for deportation purposes, and the has not been fairly heard. This can make it number of those who are actually deported.32 diffcult to work towards return for those This is because deportation is a complex who have been found not to have protection process involving multiple countries, agencies, needs. Deportation can be extremely diffcult and companies. People who are stateless to achieve if the person does not want to are most likely to stagnate in detention for comply, even with detained populations.27 long periods with little to no control over the blockades preventing their deportation.33 Impact of detention on case resolution Research in the United Kingdom has Detainees are often held in detention during shown indefnite detention does not usually an administrative process associated with their lead to deportation; instead, if depor- migration status. This may include (initial) tation has not been achieved within assessment of their protection claims, assess- one year, it is unlikely to occur.34 Further, ment of reasons to remain in the country, migrants who are facing punitive restric- and preparation for departure from the tions such as detention are more likely to country. Detention does not, in and of itself, feel they have nothing to lose and seek contribute to the resolution of these admin- unlawful avenues to stay in the country.35 istrative issues. As one study on the Neth- erlands shows, detention does not change the intentions of detainees to either stay or Impact of detention on integration leave the country; however, if a detainee was With respect to integration, a signifcant already predisposed to depart the country, proportion of detained migrants are released detention will sharpen this intention.28 with temporary or permanent residency, taking their experience of detention with Moreover, detention can reduce the ability them as they re-enter society. Immigration of detainees to contribute to case resolu- detention affects integration upon release tion processes by reducing their access in a range of ways. Detention has signif- to the outside world and eroding mental cant impacts on mental health and sense

4 THERE ARE ALTERNATIVES (REVISED EDITION)

of self that subsequently affect integra- receiving society. For example, mental tion.36 These are discussed further below. health impairment increases reliance on health care and, potentially, social welfare These affect a person’s ability to live satis- systems. The lifetime health costs of long fying and productive lives and to develop term detention have been estimated at an trusting relationships. Work, study, family and additional AUD $25,000 per person.44 friendships are all affected. Concentration and memory are also affected by long periods in detention, subsequently impacting language 1.3.4 Detention interferes with human rights acquisition and work or study outcomes.37 The use of detention for the purposes of deterrence or political gain is inconsistent with international human rights law. Human 1.3.3 Detention has been shown to rights law establishes the right to liberty and harm health and wellbeing protection from arbitrary detention.45 Further, Another major concern is that the potential detainees are at greater risk of human rights impact of detention on the health of those abuses due to their placement in an insti- detained is so severe that its use as a message tution of confnement. As detention inter- of deterrence and control cannot be justifed. feres with an individual’s human rights, it This is similarly the case with the use of must be applied only in those circumstances detention as a blanket response to groups outlined in law; in proportion to the objec- of migrants in particular circumstances. tives underlying the reason for the detention; when necessary in that particular case; and Research has demonstrated that being in applied without discrimination.46 Less restric- detention is associated with poor mental tive measures must be shown to be inadequate health including high levels of depression, before detention can be applied. As such, anxiety and Post-Traumatic Stress Disorder detention must be shown to be necessary in (PTSD)38 and poor quality of life.39 One study each individual case rather than being applied found clinically signifcant symptoms of en masse. The Handbook works to instrumen- depression were present in 86% of detainees, talise the protections enshrined in interna- anxiety in 77%, and PTSD in 50%, with tional law by identifying the ways in which approximately one quarter reporting suicidal governments can ensure detention is only thoughts.40 Further, mental health deteriorates ever applied as an exceptional measure. the longer someone is detained.41 The impact on children is particularly disturbing, especially as the consequences for their cognitive 1.3.5 Detention is expensive and emotional development may be life- Immigration detention is an incredibly 42 long. For adults, it has been found that the expensive policy to maintain, due to the debilitating impacts of detention extend well capital costs incurred with building detention beyond the period of confnement, especially infrastructure and the costs of personnel 43 for those detained for prolonged periods. required to operate an institution. This is Options that do not rely on confnement are all signifcantly more expensive than commu- the more important in light of this evidence. nity-based management programs. The cost savings are detailed in the Section 2.4.2 Impacts such as these not only affect on Cost Benefts later in the Handbook. the life experiences of former detainees; they also create a greater burden on the

5 THERE ARE ALTERNATIVES (REVISED EDITION)

Detention is a highly problematic policy for following regions: the Americas; Asia-Pacifc; governments. It fails to fulfl the aim of deter- Europe; the Middle East and North Africa; rence, is counterproductive to case resolu- and South and East Africa. The selection tion, causes serious harm and suffering for strategy was designed to include a variety of those detained, often fails to fulfl rights and States experiencing transit migration; large is an overly expensive option in light of the numbers of refugees, asylum seekers, stateless alternatives. The issues of political authority persons or irregular migrants; and/or those and public sentiment that sometimes arise with limited resources available to manage in relation to irregular migration are best such populations. Data collection involved a addressed without recourse to detention. literature review for each country and region; Strong leadership and confdence in the effec- in-depth interviews with 71 participants from tiveness of migration policy and its implemen- 18 countries, either in person or by Skype; and tation can counteract some of these concerns. international feldwork, conducted by Adele Cubbitt, in Turkey, Indonesia, and Mexico.

1.4 Our program of research An additional piece of research on detention on alternatives and alternatives in Mexico was undertaken This Revised Handbook draws from the by the IDC Americas offce in 2012. That IDC’s program of research on alterna- study involved feld research and inter- tives and from the expert knowledge of IDC views with 32 participants from govern- secretariat staff and members developed ment and from local, regional and interna- during their engagement with govern- tional non-government organisations. ments over the past fve years. An overview Finally, the IDC secretariat staff and of these sources of information is provided member groups have developed a signif- here. A detailed description of the research cant body of expert knowledge on alterna- methods is provided in Appendix I. tives. IDC staff and members have run and/ The First Edition of the Handbook, or attended a series of major international, published in 2011, came out of a study regional and national roundtables and consul- conducted in 2009/2010. Data collection tations on alternatives that have elicited for that study included a detailed litera- valuable information and insights that have ture review; an Internet-based survey; and informed the revision of this Handbook. international feldwork in nine countries, conducted by Dr Robyn Sampson. The feld work consisted of in-depth interviews with 57 participants and eight site visits.

A second study begun in 2013 to extend the research and to test the fndings of the frst study against a wider range of settings. The second study aimed to identify and describe alternatives in 20 additional countries. Four countries were selected from each of the

6 THERE ARE ALTERNATIVES (REVISED EDITION)

toward case resolution. More specif- 2. The case cally, narrower defnitions may overlook the strengths of the existing range of everyday for alternatives policies or practices used to support and manage people in the community. For example, a majority of countries in South 2.1 Alternatives to detention defned America and the European Union do not The term ‘alternatives to immigration normally detain asylum seekers on arrival. detention’ (‘alternatives’) does not have Instead, they protect and support them in an established legal defnition, nor is it a open reception centres in the community prescriptive concept. As a relatively recent while their claims for protection are processed. term, it is not defned in the same way These open reception centres are not generally by all stakeholders.47 Some stakeholders, viewed by those States as an alternative to like the IDC, maintain an expansive defni- detention, as they do not generally detain tion that incorporates a range of options asylum seekers. However, if applied in other available to a State to avoid detention. Other countries or applied in that country with a stakeholders limit the defnition of alter- different group of migrants then it would natives to conditions, such as reporting, be considered an alternative to detention. or to specifc accommodation models. Similarly, several countries only use detention The IDC’s program of research reinforces as an exceptional measure in a small number the benefts of an expansive defnition of of cases and/or for short periods. Their system alternatives. The IDC defnes alternatives to ensures most people remain in the community immigration detention (‘alternatives’) as: with freedom of movement. Rather than identifying those people in detention who are Any law, policy or practice by which eligible for an alternative, these countries persons are not detained for reasons only use detention as the last resort. Their relating to their migration status. earlier options are not seen as ‘alternatives to detention,’ as detention has not been contem- This defnition strengthens and clarifes the plated. However, they could be an alternative defnition put forward in the frst edition of for other States that do detain those people. the Handbook. The language is simplifed and a wider range of people at risk of immigra- Failing to include such policies and practices tion detention is encompassed. In line with this in this Handbook would unnecessarily limit defnition, this Handbook focuses on engage- insights into the most effective models for ment, rather than enforcement, as the best reducing the use of detention and restric- approach for developing effective and humane tions on liberty in the frst place. A broad systems for governing migration. It respects conceptual and practical approach to alter- asylum seekers, refugees and migrants as natives allows for wide-ranging discussions rights holders who can be empowered to and increases understanding of those policies work towards case resolution without the that reduce the need for detention and other need for unnecessary restrictions or depri- restrictions. By adopting this approach, we vations of liberty or freedom of movement. hope to stimulate discussions about whether people currently in detention really need to A more restrictive approach to alternatives be there, and whether existing systems for is often concerned with control rather than managing people outside of detention can engagement and collaboratively working

7 THERE ARE ALTERNATIVES (REVISED EDITION)

be translated into a program of response of detention. Some forms of management for those groups currently detained. substantially curtail or completely deny liberty and freedom of movement. This includes some In this Handbook we use the term ‘migrant’ to types of electronic monitoring, strict curfews refer to the broad range of non-citizens who and other movement controls. Whether this may be at risk of detention worldwide. This is an intended or unintended outcome, these can include, inter alia, stateless persons, traf- are regarded in this Handbook as a form of fcking victims, labour migrants, visa over- detention and as such are included in Section stayers and irregular migrants. We use this 8.3 Detention as a last resort, with review. term because detention is applied to a wide range of individuals without migration status across the world. The breadth of the term 2.3 What do we already know ‘migrant’ further highlights the importance of about alternatives? screening and assessment to understand the Despite the growing use of detention globally, vulnerabilities and risks in each individual case. recent years have also witnessed a growing momentum around exploring and imple-

48 2.2 The IDC’s approach to alternatives menting alternatives. Research has gradually developed to respond to government interest It is important to note that the IDC in more detailed information about alterna- considers that alternatives: tives and the relative effectiveness of different Æ Do not apply only to vulnerable individuals strategies. However, the large proportion such as children or refugees of existing studies have focused on alternatives for asylum seekers,49 thereby excluding Æ Do not refer only to accommodation major groups of migrants currently detained. models Some consideration has been given to inter- Æ Do not require the application of preting international human rights frame- conditions, such as bail/reporting works that provide a mandate for alterna- Æ Do not refer to alternative forms of tives.50 However, systematic assessment of detention national programs is minimal,51 with evaluations by government generally restricted to Such views can contribute to concerns that assessments of pilot programs.52 While non- implementing alternatives is an overwhelming government organisations have stepped in to task that requires substantial investment in bridge this gap when able,53 the lack of access new resources; that alternatives encourage to government statistics has resulted in smaller or require restrictions on liberty; and that studies. The lack of initiative or disclosure by discussing alternatives normalises detention. governments in evaluating their migration governance programs has restricted produc- Alternatives do not need to be anything more tive dialogue, as the effectiveness of alter- than what already happens to people in the natives in different contexts and in terms of community: any community measure is or can different objectives is not always known. be considered an alternative. Where effective community measures are operating, the key Notwithstanding the growing use of detention is to ensure all migrants – including refugees, in relation to migration matters, an overview asylum seekers, stateless persons and irregular of existing policy and practice at the interna- migrants – are integrated into such programs. tional level highlights that there are extensive systems in operation designed to work with It is also important to draw a clear distinction asylum seekers, refugees and migrants in a between alternatives, and alternative forms

8 THERE ARE ALTERNATIVES (REVISED EDITION)

community setting while a migration issue are several benefts in restricting the applica- is being resolved. By maintaining a broad tion of detention and prioritising community- approach to alternatives we fnd that: based management options. Alternatives: Æ Most countries do not use detention as the Æ Improve compliance with immigration and frst option in the majority of cases. case resolution processes Æ A number of countries rarely resort to Æ Cost less than detention detention, if at all. Æ Reduce wrongful detention and litigation Æ Countries are increasingly developing and Æ Reduce overcrowding and long-term implementing alternatives. detention Æ Increase voluntary or independent Most countries do not rely primarily on departure rates detention to manage asylum seekers, refugees and migrants while resolving their migration Æ Respect, protect and fulfll human rights matter. For instance, a large proportion of Æ Can help stabilise vulnerable individuals in irregular migrants in many countries are transit tourists or short-term visitors who overstay Æ Improve integration outcomes for their visa.54 These people are rarely detained approved cases but rather provided with avenues to resolve Æ Improve individual health and wellbeing their situation via independent departure Æ Improve local infrastructure and other or application for another visa or migration migrant support systems status. Further, in countries with large numbers of mixed migrants and migrants Although there is no consistent data available intending to transit, the vast majority were on each of these outcomes, information at risk of detention, rather than actually collected during the program of research being detained. This was most evident in and from existing studies has been included countries where there were high numbers of throughout the Handbook as able. In particular, irregular migrants, and where it was recog- the research focused on compliance and case nised that the cost of detention and the resolution, cost, and health and wellbeing. number of migrants who might be detained These are discussed in more detail below. are just too great. Despite a growing reliance on detention, most countries still do not use 2.4.1 Compliance and case resolution detention as the frst option in the majority of cases. In fact, a number of countries Research shows that most people usually do rarely resort to immigration detention, if the right thing and follow the rules most of the 56 at all.55 This is important to acknowledge time. This tendency to comply with a legiti- and draw on as a source of expertise that mate authority with minimal intervention holds might be applied with other migrants. true for non-citizens in relation to migration laws.57 Indeed, one comparative study of asylum seekers in Canada and Switzerland 2.4 Benefts of alternatives found four motivational factors contribute The IDC’s program of research has focused to compliance: 1) the refugee predicament on policies and programs that reduce the use and fear of removal; 2) law-abidingness and of detention, while keeping in mind costs, commitment to obey the law; 3) trust in the compliance rates, effective and timely case refugee determination process and percep- resolution, as well as a concern to uphold tions of fairness in the host country; and 4) health, wellbeing and human rights. There a desire to avoid irregular residence, with

9 THERE ARE ALTERNATIVES (REVISED EDITION)

attendant hardship and vulnerability.58 Alter- about future possibilities and is not at risk natives that build trust in the fairness of the of detention or deportation. For example: immigration process can promote compli- Æ Hong Kong maintains a 97% compliance ance as well as more effcient and sustain- rate with asylum seekers and torture able immigration decisions. In turn, this can claimants, despite the disincentive that improve fnal outcomes whether this is inte- those with successful claims are not gration for those granted status or inde- allowed permanent residency status (see pendent departure for refused cases. Box 14 Hong Kong).

The data on rates of compliance support these Æ In Indonesia, shelters for unaccompa- general claims. The available data are most nied refugee and asylum seeking children substantive for those still awaiting a fnal visa have seen very low absconding rates of 66 or status decision in their preferred destination: 14% in 2013, and 6% in 2014. Children are supported in these shelters while awaiting One study collating evidence from 13 Æ confrmation of refugee status from programs found compliance rates among UNHCR Indonesia and a durable solution. asylum seekers awaiting a fnal outcome Æ In Thailand, an NGO-run program provides ranged between 80-99.9%.59 fnancial assistance and a caseworker In the United States, migrants in the ISAP Æ for unaccompanied refugee and asylum community supervision program appeared seeking children in the community. Where at scheduled court hearings 99% of the needed, children are referred to health, time and at removal hearings 95% of the psychosocial and legal services. Although time.60 relatively recently established, the program Æ In Canada, a supervision program with has seen very low absconding rates of a mixed group of high-risk detainees 3%, with only 6 out of 186 children having maintained a 96.35% retention rate in the absconded between September 2014 2009-2010 fnancial year61 and a 94.31% to May 2015. Of these, most absconded retention rate in the 2013-2014 fnancial immediately after registration, before a year.62 caseworker had been assigned and prior to Æ In Australia, a case management pilot any assistance being provided to them. with vulnerable migrants recorded a 94% compliance rate over a three year period.63 In addition, solid compliance and departure Meanwhile, migrants issued with bridging rates can be achieved with groups who visas maintained a compliance rate of are required to depart the country. approximately 90% in 2009-2010.64 Æ In the United States, migrants in removal Æ In the United Kingdom, people released proceedings who are in a supervision from immigration detention on temporary program comply with removal orders 84% admission, temporary release or bail had of the time, compared with only 13% for a compliance rate of 90.8% in 2013, and those without support or supervision.67 91.9% between January and September This supervision program is built on 2014.65 the back of a pilot project in the late 1990s which almost doubled the rate of For those not in their preferred destination, compliance with fnal orders: 69% of partic- it appears community placement can also ipants in intensive supervision complied be effective in many cases if the individual with a fnal order compared with 38% of can meet their basic needs, remain hopeful the comparison group released on bond or parole (Box 24).

10 THERE ARE ALTERNATIVES (REVISED EDITION)

Æ In Australia, a case management pilot Avoiding unnecessary cases of detention with vulnerable migrants achieved a and reducing the length of time someone 93% compliance rate. In addition, 60% of is detained are key strategies for reducing those not granted a visa to remain in the the costs associated with detention. country departed independently despite long periods in the country and signifcant Community management programs barriers to their return (Box 16). described in this report were much less expensive than detention to operate on Æ In Sweden, a caseworker system with a day-to-day basis. Table 1 provides a asylum seekers has been highly success- snapshot comparison of the cost of alter- fully in achieving effective case resolution. natives compared to detention in several The vast majority of persons required to countries. Further, an independent study leave the country depart without the need found that the United States could save over for detention and deportation procedures. $1.44 billion of its $2 billion detention budget In 2012, 68% of third country nationals by detaining only noncitizens with serious ordered to leave the country departed crimes and otherwise using alternatives.71 voluntarily or through an Assisted

68 Voluntary Return program. In 2011, the Table 1 Comparing the cost of detention equivalent fgure was 63% (Box 21). and alternatives Æ In Belgium, an evaluation of family units revealed that since the inception of the Cost of Cost of project, the vast majority of families (70% Detention Alternative Country to 80%) stayed engaged in immigration (per person (per person per day) per day) processes, with high rates of voluntary return and relatively low rates of AU$8.8073 absconding (Box 18). Australia AU$65572 to AU$3874 These fgures demonstrate the ability of Austria ¤12075 ¤17 to ¤2476 community management programs to sustain signifcant levels of compliance with Belgium ¤180- ¤19077 ¤90 to ¤12078 a range of populations. It should also be stressed that compliance is with immigra- Canada CA$17979 CA$10-1280 tion processes and not with the alternative 81 per se. Not all alternatives require ongoing Hong Kong n/a HK$108 engagement or are linked to immigration Indonesia n/a US$882 processing. Indeed, migrants are more likely to cease complying with alternatives for United US$15883 US$10.5584 practical and personal reasons, such as the States cost of travel to fulfl reporting requirements or lack of information about the process.69 More effcient systems can also reduce the overall cost of operations. Assisted voluntary 2.4.2 Cost benefts departures cost less than escorted depor- Signifcant cost benefts are also achieved tations: in the European Union independent by prioritising alternatives.70 If cases can be departure to another country within the EU managed in community settings without costs ¤300-600 compared with up to ¤1,500 a reduction in immigration processing for escorted deportations.85 Forced removal times, cost savings will be inevitable. has been estimated to cost ten times more

11 THERE ARE ALTERNATIVES (REVISED EDITION)

than independent departure in the United in the community assists “in improving the Kingdom at £1,100 compared with £11,000.86 wellbeing of [migrants] when compared Similarly, the Australian government reported with … detention and does not exacerbate that the ‘non-common’ costs of an assisted existing trauma.”94 Further, former detainees independent return from the community reported that community placement was less are approximately one third of those of a harmful due to several factors including a ‘locate, detain and remove’ case: approxi- more ‘natural’ environment; not having to live mately $1,500 compared with $5,000.87 Finally, in close quarters with people who are angry preventing or reducing cases of wrongful or distressed; freedom to have privacy and or arbitrary detention avoids costly litiga- time to oneself; and freedom to make choices tion. The United Kingdom paid out over £2 about daily life, including what to eat and million over the three years to 112 individ- when, who to visit and how time is spent.95 uals for wrongful detention.88 Meanwhile, As one mother stated, “in detention our son the Australian government paid out over was bored, he didn’t play with the other kids, AU$16 million in compensation to former he cried, he just said, ‘I want to get out’. But detainees over a ten year period.89 Finally, here he is doing much better. It has made a Australian research has found that the lifetime big difference being in the community.”96 additional health costs of the trauma of detention to be AU$25,000 per person.90 Appropriate management in the community is more likely to uphold human rights and support wellbeing, ensuring 2.4.3 Protecting health and wellbeing people can contribute fully to society Protecting health and wellbeing is the third if residency is secured or better able to factor used to assess the success of alterna- face diffcult futures such as return.97 tives. As detailed in Section 1.3.3, detention erodes health and wellbeing and this effect 2.5 Common characteristics of intensifes over time. It is well established that successful alternatives the health and wellbeing of people who are detained, or have previously been detained, The IDC’s program of research has found is signifcantly poorer than comparative that the most signifcant and effective strate- groups who have never been in detention.91 gies for preventing unnecessary detention are Damaging experiences particular to detention those that determine (i) whether detention is include confnement, an overwhelming sense truly necessary in the individual case, and (ii) of injustice, broken relationships and isolation how that individual would best be supported from society.92 The impact of detention to achieve case resolution while located in a on the cognitive and emotional develop- community setting. A range of strategies keep ment of children is even more signifcant due individuals engaged in immigration proce- to the long-term impacts on their lives. dures while living in the community. This approach to alternatives means the location Community assessment and placement of the individual is not of primary concern. promotes better health and wellbeing Instead, the focus is on breaking down the outcomes when compared with immigra- population with screening and assessment tion detention. All people awaiting an immi- and ensuring the community setting contains gration outcome experience stress and the necessary support mechanisms and struc- 93 anxiety, and placement in the community tures that will best enable the individual to placement does not take away this uncertainty. work with authorities towards case resolution. However, as one study shows, placement

12 THERE ARE ALTERNATIVES (REVISED EDITION)

2.5.1 Elements of successful alternatives their education visa; and migrants who have committed a crime and are facing deporta- The IDC’s program of research has identi- tion. In addition, recognised refugees crossing fed the main elements of successful alter- borders without papers and undocumented natives in terms of cost, compliance and asylum seekers awaiting a refugee deter- wellbeing outcomes. These include: mination face risks of detention or refoule- Æ Using screening and assessment to tailor ment despite the international obligations management and placement decisions owing to them. Identifying and distinguishing Æ Providing holistic case management these different populations ensures authori- focused on case resolution ties respond appropriately and effectively. Æ Focusing on early engagement Æ Ensuring individuals are well-informed and The following key findings are particularly trust they have been through a fair and relevant to understanding the differences timely process among migrant populations: Æ Ensuring fundamental rights are respected Æ Individuals rarely abscond while awaiting and basic needs are met the outcome of a visa application, status Æ Exploring all options to remain in the determination or other immigration process, country legally and all avenues for if in their destination country.100 As shown in voluntary or independent departure Section 2.4.1, a majority of migrants want to Æ Ensuring any conditions imposed are not remain engaged with authorities in order to overly onerous secure the best outcome for their migration case. This reinforces the conclusions of These lessons are brought together previous research that “…asylum seekers who in the Revised CAP model. reach their ‘destination’ country are unlikely to abscond because they have a vested interest 2.5.2 Understanding the population through in remaining in the territory and in complying screening and ongoing assessment with the asylum procedure.”101 Such a conclusion is also implicit in the extraordinary Successful alternatives approach migrants as a lengths people go to in order to reach their highly diverse population with different needs destination and in the diffculties destination and motivations.98 This is well established in governments face in achieving deportation the concept of ‘mixed migration’ that informs and sustainable repatriation.102 strategies to manage migrants at the point of Æ Individuals are better able to remain entry.99 Those currently at risk of detention in compliance if they can meet their basic worldwide include, inter alia, refugees; asylum needs while in the community.103 Individuals seekers; persons who cannot be returned to living in stable accommodation appear to be their country of origin due to a recent natural in a better position to remain in contact with disaster, violent confict or lack of coopera- authorities and handle the complexities of tion of their own government; individuals immigration procedures than those who had who have been working ‘illegally’ as a result become impoverished or homeless.104 Policies of being traffcked into prostitution; tourists that restrict access to housing, basic welfare who have overstayed a short-term visitor’s or health care have not been associated with visa; stateless persons who are not eligible increased rates of independent departure or for a substantive visa but who are unable to deterrence outcomes.105 Instead, these policies return to their country of birth; international have been associated with poorer health, with students who have breached a condition of

13 THERE ARE ALTERNATIVES (REVISED EDITION)

serious consequences for authorities working asylum procedures.”110 Research with migrants towards case resolution including return.106 who intended to transit Libya concluded However, case management programs that that “the absence of a humane and orderly work with clients to meet their basic needs framework for handling migration fows in have been associated with higher rates of Libya is no doubt a contributing factor to the voluntary or independent departure or other ever increasing numbers of migrants, asylum case resolution. seekers and refugees willing to risk their lives Æ Individuals are more likely to accept and in the Mediterranean to reach the safety of comply with a negative decision on their visa Europe.”111 As noted in Box 14 Hong Kong application, status determination or other achieves a 97% compliance rate with asylum immigration process if they believe they have seekers or torture claimants in the community, been through a fair and effcient process; despite the fact those with successful claims they have been informed and supported are not offered permanent residency.112 While through that process; and they have explored secondary movement cannot always be all options to remain in the country legally.107 prevented, screening and assessment can Community management programs are found assist in understanding motivating factors to sustain signifcant levels of compliance and facilitating registration with authorities. with a range of populations. For example, However, complete control in all cases is a return preparation program in Belgium unrealistic. The pull of onwards travel is (Box 18) ensures clients review all options especially compelling for people seeking family to remain in the country legally to achieve reunifcation or who have other pressures to strong compliance and departure outcomes. undertake secondary movement. For these Conversely, a family return pilot project that reasons, countries must invest in preventative was unable to achieve its aims due to an mechanisms that address the root causes of overwhelming feeling of injustice and lack irregular migration and build a stronger inter- of confdence in the immigration process: national system of burden sharing. “families within the project [felt] that they were These fndings highlight the importance poorly, if not unfairly, treated within the asylum of understanding the diversity within the procedure and [were] not therefore willing to population of refugees, asylum seekers, engage in discussion about return, but [were] stateless persons and irregular migrants rather looking for other ways to remain.”108 as well as understanding those contexts Æ While the issue of transit continues to that promote good outcomes for a range be of concern to many governments, there is of stakeholders. These fndings have been evidence that individuals appear less likely to used to develop the Community Assess- abscond in a country of ‘transit’ if they can ment and Placement model to prevent unnec- meet their basic needs through legal avenues, essary detention and support case reso- are not at risk of detention or refoulement, lution from a community context. Further and remain hopeful regarding future evidence for these fndings are incorporated 109 prospects. The fndings of one large survey through the report in the relevant sections. of 34 countries supported “the common sense conclusion that improving reception conditions and integration prospects in [transit] states will directly raise the rate of compliance with

14 THERE ARE ALTERNATIVES (REVISED EDITION)

2.5.3 Holistic case management ance with their immigration obligations and/ focused on case resolution or any conditions or restrictions while in the community. They can also assist the indi- Successful alternatives engage with and vidual to achieve timely and fair case reso- support individuals through the immigra- lution and to prepare them for immigration tion process, often with case managers. Early decisions, including integration or departure engagement by case managers can reduce from the country. See also Section 7.1. unnecessary detention by identifying risks, vulnerabilities and needs that may impact a person’s capacity to remain engaged with authorities. It also supports informed immigration decisions by ensuring all relevant information is available to authorities. It further assists in understanding and navigating the immigration process and the case resolution options available to them, promoting trust in the system. Case managers can also promote coping and wellbeing by making referrals to interpreters, legal advisors, health professionals and other services as required. This in turn helps to promote their compli-

Research to date suggests asylum seekers, refugees and migrants

Æ Rarely abscond while awaiting the Æ Appear less likely to abscond in a outcome of a visa application, status country they intend to transit if they can determination or other immigration meet their basic needs through legal process, if in their intended destination. avenues, are not at risk of detention Æ Are better able to comply with require- or refoulement and remain hopeful ments if they can meet their basic needs regarding future prospects. while in the community. Æ Further, while secondary movement Æ Are more likely to accept and comply cannot always be prevented, screening with a negative decision on their visa and assessment can assist in under- application, status determination or other standing motivating factors and facili- immigration process if they trust: tating registration with authorities. Æ They have been through a fair and However, complete control in all effcient process cases is unrealistic. Solutions for such situations include proactive preventative Æ They have been informed and mechanisms that address the root causes supported through that process of irregular migration and build a stronger Æ They have explored all options to international system of burden sharing. remain in the country legally

15 THERE ARE ALTERNATIVES (REVISED EDITION)

3. Community Assessment and Placement: Introducing the Revised CAP model

Figure 1: The Revised CAP model - Community Assessment and Placement

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The Revised Community and Assessment Model (Revised CAP model) identifes the principles and processes that prevent unnecessary detention and support community-based options. The Revised CAP model, seen in Figure 1, is a practical tool for governments and other stakeholders to develop effective and humane systems for governing irregular migration. It is a non- prescriptive framework that assists governments in reviewing and analysing their current migration governance framework and in exploring alternatives that work in their context. In the Revised CAP model, the principles of liberty and of minimum standards underpin the three processes of decision-making, placement and case management. The model, while built upon the IDC’s program of research, also reinforces the normative international standards relating to the detention of asylum seekers, refugees, stateless persons and irregular migrants.113

The Revised CAP Model can be used to: The following sections describe each of the Æ Analyse and assess existing laws, policies components of the model in detail and present and practices in order to identify gaps, descriptive case studies of these principle needs, priorities and goals and processes in action. These case studies Æ Obtain ideas about what is possible and, and break out boxes offer practical examples using these, develop, expand or improve of implementation in different contexts. alternatives in local contexts Æ Facilitate dialogue with offcials in different arms of government, between States and across stakeholders Æ Guide the decision making process to ensure immigration detention is only used as a last resort Æ Train offcials, practitioners and stakeholders on how to work towards ending unnecessary detention and how to develop and implement alternatives

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4. Liberty: Presumption against detention

The right to liberty and a presumption against The research identifed the following strat- detention are the frst of two principles that egies to protect the right to liberty. These underpin the Revised CAP Model. The right to strategies are strongest when established liberty is a fundamental human right, enshrined in law; however, they can also be stated in all major international and regional human in policy or established in practice. These rights instruments.114 It is guaranteed to all include laws, policies and practices that: persons, including refugees, asylum seekers, Æ Establish a presumption of liberty migrants and stateless persons, irrespective of Æ Provide a mandate to apply alternatives in their legal status. This right to liberty of person the frst instance imposes a number of specifc limitations on Only permit detention when alternatives States’ ability to detain, including the require- Æ cannot be applied ment that detention is justifed by a legitimate State objective, is in accordance with the Æ Prohibit the detention of vulnerable law, and is not arbitrary. Any system seeking individuals to avoid unnecessary and arbitrary detention must be based on a presumption of liberty.

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4.1 Establish a presumption of liberty Countries that operate with a strong presumption of liberty for all persons include Argentina, A presumption of liberty, or a presumption Brazil, Costa Rica and Venezuela. In these against detention, is an effective means of countries, national laws strongly espouse ensuring detention is only used as a measure the principle of non-discrimination and do of last resort in exceptional circumstances. not distinguish between nationals and non- A presumption of liberty upholds each indi- nationals for the purposes of access to and vidual’s right to freedom of movement enjoyment of fundamental rights. Such and helps to prevent immigration offcials laws provide detention be used only as an from resorting to confnement when other exceptional measure of last resort and/ options are at their disposal.115 A presump- or where necessary, and provide for alter- tion of liberty is strongest when established natives to be used in the frst instance. in law or detailed in policy. All laws, policies and other materials establishing a presumption against detention should be made widely 4.2 Mandate to apply alternatives available in writing to ensure consistent in the frst instance implementation. Further, in order to be most A presumption of liberty is strengthened when effective, governments should undertake alternatives are clearly specifed and estab- training and guidance on implementation lished in law or policy. Legally prescribed alter- with enforcement offcers and the judiciary.

BOX 1 A PRESUMPTION OF LIBERTY IN LAW ARGENTINA

The Argentine Immigration before deportation, a person detention orders can only Law (Law 25.871), enacted must be given the oppor- be issued as a precaution- in January 2004, recognises tunity to explore all options ary measure before a fnal that migration is a human to regularise their status, immigration decision where right, and extends consti- within a set deadline. Migra- there is a risk of non-com- tutional and human rights tion decisions are made by pliance with a deportation protections to all persons in immigration authorities but order. Article 70 of Regula- the country irrespective of are reviewable by a court, tion 616/2010 provides that their legal status. Article 6 with no detention during this detention orders can only of Law 25.871 also guaran- period. Legal aid is available be issued for a maximum of tees all persons the right throughout the deportation 45 days to effect deporta- to non-discrimination, and process. tion where a removal order access to education, medical has been fnalised; within Deportation and deten- and social services. Immi- this period, after the frst 15 tion are both decisions that gration detention is limited days of detention, immigra- must be ordered by a court, in law and practice to rare tion authorities must provide with detention used only as instances, and is gener- a detailed report every ten a fnal resort after all other ally only permissible after days to the courts justify- remedies are exhausted. a fnal order of deportation ing the extended detention Under Regulation 616/2010 has been issued.116 Article period. accompanying Law 25.871, 61 of Law 25.871 states that

19 THERE ARE ALTERNATIVES (REVISED EDITION)

natives provide offcials with clear options for measure of last resort, only to be applied after people to remain in the community while their non-custodial alternatives to detention have immigration status is being resolved. Several been examined. As a result of these Directives, countries maintain laws and policies that almost all EU Member States now provide for mandate, or require, alternatives to be consid- alternatives in national legislation (see Box 2 ered or applied before a decision to detain is Poland, Croatia and New Zealand as examples). made (such as in Argentina (Box 1), Austria and Costa Rica). Others encourage authorities to consider alternatives before using 4.3 Only permit detention when detention (such as in Canada, Hong Kong, alternatives cannot be applied Indonesia, Ireland and Japan). The effective- Laws or policies that establish a presump- ness of such laws in preventing unnecessary tion of liberty may do so by allowing the detention relies on good implementation. use of immigration detention as an exceptional measure, only when alternatives A clear example of this mandate can be found cannot be applied in the individual case. in the European Union (EU). Through trans- Such laws can ensure decision-makers and 117 posing of the Returns Directive and the immigration offcials review less restric- 118 recast Reception Conditions Directive in tive measures for each case and establish their national legislation, Member States are clear reasons why such measures cannot be required to ensure that detention is used as a applied in the individual case. This ensures

BOX 2 ALTERNATIVES TO DETENTION IN LAW POLAND, CROATIA AND NEW ZEALAND

Poland has passed legisla- Æ Reporting at specifed 2012. These include the duty tion providing for a mandate intervals to the Polish to surrender documents, to to consider alternatives Border Guard; deposit sureties, to reside at to immigration detention. Æ Lodging a security a designated address and to The New Act on Foreign- deposit, no lower than undertake regular report- entered into force on 1 ing.119 Further, a book of rules ers twice the amount of May 2014. It is modelled on provides additional guidance the minimum wage Directive 2008/115/EC of the to offcials regarding imple- stipulated by minimum European Parliament and of mentation.120 wage law; the Council of 16 December Section 315 of New Zea- 2008 on common standards Æ Surrendering of travel land’s Immigration Act 2009 and procedures in Member documents; and outlines specifc conditions States for returning illegally Æ Directed residence at a that may be applied to a staying third-country nation- location specifed by the person who would otherwise als (the Returns Directive). authorities. be subject to detention, Article 398 of the New Act Croatia nominates several including reporting, guaran- on Foreigners provides for alternatives to detention tors and undertaking actions the Polish Border Guard in its national legislation, towards case resolution. authority to apply any one or which was introduced in more of the following:

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offcials must demonstrate the particular ordered authorities to revisit their proce- reasons why detention is deemed necessary dures to ensure they can demonstrate for those individuals facing detention. the reasons for detention and why a more lenient measure has not been applied.121 A presumption of liberty is strongest when estab- 4.4 Prohibit the detention of vulnerable individuals lished in law, although it Additionally, many countries protect the right can still be established in to liberty for certain vulnerable individuals. policy or in the practice These States either prohibit the detention of immigration offcials of vulnerable individuals in law or direct to not detain unless offcers to apply alternatives to those individuals. While countries vary in their iden- necessary tifcation of vulnerability, this can include unaccompanied children, children travelling with family, pregnant women, the elderly, Evidence of such consideration may be persons with mental or physical illnesses, required to be submitted when a detention refugees and asylum seekers, and/or stateless decision is being made or reviewed in persons. Examples of such laws and policies court. Where it is not articulated in law, a include Box 3 China, Box 7 Hungary, Box presumption of liberty can still be estab- 11 Zambia, Box 12 the United States, Box lished in policy or in the practice of immigra- 13 Turkey, Box 14 Hong Kong and Box 18 tion offcials to not detain unless necessary, Belgium. Further information on identifying as seen in Box 1 Argentina and Box 21 vulnerability is provided in Section 6.3. Sweden. In several jurisdictions, courts have

BOX 3 PROHIBITING THE DETENTION OF VULNERABLE INDIVIDUALS CHINA

The People’s Republic of years of age. The Exit and those who voluntarily ask China’s (China) Exit and Entry Law also contains for inspection by entry-exit Entry Law, which came into provisions allowing refugees department, pay fnes, and effect on 1 July 2013, aims to and asylum seekers to stay buy tickets to voluntarily limit the use of immigration in China after obtaining an return to their home country; detention for vulnerable in- identifcation card from pub- those who entered through dividuals. The Exit and Entry lic security authorities. irregular means and stayed, Law excludes certain vulner- received no help from fam- Additionally, the July 2012 able migrants from detention ily members or embassies; revisions to the Procedural including minors under 16 survivors of traffcking; Provisions for the Handling years of age, persons with and foreigners married to of Administrative Cases by disabilities, persons with Chinese nationals, especially Public Security Organs also serious illnesses, pregnant those with children born in excludes other individuals women, and those over 70 China. from detention including:

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Ensuring the right to liberty for child migrants

Refugee, asylum seeking and irregular migrant resort, and the right to not be punished for the children are, frst and foremost, children. acts of his or her parents. Alternatives should States are required to consider their best be applied to the whole family, with detention interests as the primary consideration in all only in very exceptional circumstances.124 decisions impacting upon them and to uphold their rights without discrimination. Indeed, Evidence shows that detention can have a the UN Committee on the Rights of the Child profound and negative impact on the health (‘CRC Committee’) has concluded: and development of young people. Children in detention are at risk of depression and anxiety and frequently exhibit symptoms of Post- The detention of a child Traumatic Stress Disorder.1Detained children have higher rates of suicide, suicide attempts because of their or their and self-harm, mental disorder and develop- parent’s migration status consti- mental problems. Even very short periods of tutes a child rights violation detention can undermine a child’s psycholog- and always contravenes the ical and physical wellbeing and compromise their cognitive development. A recent study principle of the best interests has reinforced these concerns, concluding: of the child. In this light, States “Detention is highly distressing and often should expeditiously and traumatic [for children]. On the basis of our fndings, children, regardless of immigration completely cease the detention status, should be protected from detention of children on the basis of and should also be spared forced separation their immigration status.122 from their parents.”128

Further, the detention of a migrant child to maintain family unity may violate the principle of the best interests of the child, the child’s right to be detained only as a measure of last

The IDC supports the Global Campaign to End Immigration Detention of Children. More details can be found at http://endchilddetention.org

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The Child Sensitive Community and Assessment Placement Model (CCAP) The IDC’s program of research has identifed several mechanisms that States can use to ensure that the rights of irregular migrant children are protected while awaiting case resolution. These are laid out in the IDC’s Child-Sensitive Community Assessment and Placement Model (CCAP).1CCAP provides governments and other stakeholders with further details on how to actualise CAP specifcally in the context of children. The core components of CCAP are as follows:

Prevention Placement and Case Management This systemic aspect protects children from Involves an exploration of the migration detention by establishing in law or policy options available to the child and their family, that children should not be detained. a full best interest determination, and an assessment of the protection needs of the Screening, Assessment and Referral child and/or their family. Within hours of coming into contact with a child, authorities must undertake a best Reviewing and Safeguarding interest assessment and place them in an This step ensures that the rights of children appropriate community setting that takes and their best interests are safeguarded into account age, gender and cultural through regular independent review of any background. This component includes decisions taken including placement, condi- screening the individual to determine their tions applied and legal status. age (with a full age determination only when there are serious doubts as per Box Case Resolution 4), assigning a guardian to unaccompa- The realisation of a sustainable migration nied or separated children (see Box 5), allo- solution for the child and their family. cating a caseworker to children who are travelling with their families, undertaking More details on CCAP can be found an intake assessment and placing the child in the IDC Publication Captured Childhood. and their family into a community setting. http://idcoalition.org/ccap

BOX 4 AGE ASSESSMENTS

Where the age of an indi- evidence, interviews and markers of age.131 Medical vidual is in dispute, an age professional observation tests including Magnetic assessment may be required. with medical assessments.130 Resonance Tomography, The UN Committee on the In Sweden and Belgium, bone and dental radiology Rights of the Child has rec- these three methods are and examinations of sexual ommended that age assess- combined. Age assessment maturity have also been criti- ments should have regard procedures can be conten- cised for their inaccuracy.132 for the psychological matu- tious, with interviews and If age determination assess- rity of the individual, as well observational technique - ments do not remove doubts as their physical appearance. visual, cognitive, behavioural as to the age of the person, Assessments should be con- and psychological - often then they should be given ducted in an objective, safe, being subjective and de- the beneft of the doubt and child- and gender-sensitive pendent upon the expertise considered a minor.133 manner. Age assessment of the assessor, particularly can integrate documentary on culturally-appropriate

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BOX 5 ENDING IMMIGRATION DETENTION OF CHILDREN A SNAPSHOT OF GLOBAL TRENDS

Panama Introduces a law to prohibit the immigration detention of children.

Indonesia Belgium Introduces law permitting Implements alternatives to the release of children and detention for children and other vulnerable individuals families. from immigration detention.

2005 2008 2010 2011

South Africa Finland Court rules children may Commits to end the detention only be detained as a of unaccompanied and matter of last resort. separated children.

Japan Releases all children from immigration detention and establishes a policy to no longer detain children.

United Kingdom Announces it will end the detention of children

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BOX 5 ENDING IMMIGRATION DETENTION OF CHILDREN A SNAPSHOT OF GLOBAL TRENDS

China Malta Passes a new law Commits to ending child restricting the immigration detention detention of children under 16 years of age.

Turkey Passes new legislation France prohibiting the detention Limits the detention of of unaccompanied minors to exceptional minors seeking circumstances international protection.

2012 2014 2015

The Netherlands Taiwan Announces that families Prohibits the detention with children who seek of children under the asylum will no longer be age of 12 years old. detained at the border, except in exceptional situations.

Israel Introduces a new law excluding children from “residence orders” (a requirement to reside at designated detention centres) and directing authorities to place unaccompanied minors and other specifed children into community settings.

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BOX 6 APPOINTMENT OF A GUARDIAN

Unaccompanied children, and unaccompanied or separated role of the guardian and that those separated from their child is identifed, and to of the immigration authori- primary caregiver, are par- maintain such guardianship ties. In Belgium, guardians ticularly vulnerable to abuse arrangements until the child are professional non-govern- and exploitation and are enti- has either reached the age ment individuals and volun- tled to special protection.134 A of majority or has perma- teers, while in Sweden these crucial protection measure is nently left the territory. The are citizens of good standing. the appointment of an inde- guardian should be consulted In both countries, guardi- pendent, legal guardian. The and informed regarding all anship is appointed by an guardian’s key role is to help actions concerning the child, independent body, this being ensure the child is not at any and should have authority to the Guardianship Service and legal disadvantage in the im- be present in all planning and Chief Guardian respectively. migration process, and that decision-making processes In the Philippines, the Depart- their support and care needs involving the child.135 ment of Social Welfare and are being met. In Comment Development are delegated There are different types of No. 6, the CRC Commit- as the responsible guardians guardianship models.136 Good tee reinforced the need for to provide shelter, social work practice examples maintain a States to appoint a guard- and health care services. clear distinction between the ian or adviser as soon as an

BOX 7 UNACCOMPANIED CHILDREN ARE NOT TO BE DETAINED HUNGARY

Section 56 of Hungary’s Act employed by the Department tions.139 Section 45(1) of the II of 2007 on the Admission of Child Protection Services, Hungarian Child Protection and Rights of Residence of who is legally responsible for Act requires that children in Third-Country Nationals the overall care, management care facilities must be provid- establishes that unaccom- and legal representation of ed with food, clothing, health panied children cannot be the child. care, education and housing detained for migration rea- suitable for the development Since May 2011, unaccompa- sons.137 Unaccompanied chil- of their physical, mental and nied children seeking asylum dren who come into contact emotional needs. or international protection with authorities, however, fall under the scope of the Non-asylum seeking children must provide evidence of country’s general child pro- are accommodated in a their identity (with personal tection regime and thus enjoy child protection facility in identifcation or valid travel the same rights as Hungarian Hódmezövásárhely run by document) and demonstrate children. They are regarded the Catholic Church under a a legal ground for stay in primarily as children, and only contract with the Social and Hungary. Those who cannot secondarily as migrants.138 Child Protection Directorate. provide this may be held They are placed in a specifc The capacity at this facility for a maximum period of 24 child protection facility in is, however, limited and some hours while the authorities Fót supervised by Hungarian non-asylum seeking children conduct identifcation and authorities, with services pro- are placed at other child age assessment verifcation. vided by a variety of national protection facilities when Those found to be children and international organisa- required.140 are appointed a guardian

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5. Minimum standards

The second principle in the Revised CAP ance with authorities if they can meet their model is minimum standards. These basic needs while in the community. They minimum standards underpin all decision- are also more likely to accept a negative visa making and placement processes in the or status decision if they believe they have Revised CAP model. There are a number been through a fair immigration process; of minimum standards which States must they have been informed and supported respect and uphold for all individuals, through the process; and have explored all regardless of legal status. These minimum options to remain in the country legally. standards help to ensure the proper functioning of migration governance systems Minimum standards include: and the effectiveness of alternatives. Æ Respect of fundamental rights Æ Basic needs Without these minimum standards in place, Formal status and documentation alternatives are also less likely to achieve Æ desired rates of compliance, case resolu- Æ Legal advice and interpretation tion and respect for human rights. Individ- Æ Fair and timely case resolution uals are better able to remain in compli- Æ Regular review of placement decisions

27 THERE ARE ALTERNATIVES (REVISED EDITION)

5.1 Respect of fundamental rights nationals and non-nationals for the purposes of access to and enjoyment of fundamental It is crucial that States ensure all persons, irre- rights. As seen in Box 1, Argentina has estab- spective of their status, are able to exercise lished in law that constitutional and human their fundamental human rights and freedoms. rights protections extend to all persons in These rights establish minimum standards of the country, irrespective of their legal status. treatment to ensure each person is treated Further, migration is protected as a human with dignity; as such, these rights should be right. The law also guarantees all persons respected and promoted for every person the right to non-discrimination, and access within the State’s jurisdiction.141 These funda- to education, medical and social services. mental rights include economic, social and cultural rights such as access to health, livelihood and education. As outlined above in 5.2 Basic needs Section 4, fundamental rights include the The ability to meet basic needs is the second right to liberty and freedom of movement minimum standard that underpins alter- and the right to protection from discrimi- natives. It is important that all individ- nation on any grounds including national uals, regardless of migration status, are origin or migration status. These latter rights able to meet their basic needs. The ability are particularly important in relation to to meet basic needs is fundamental to State governance of non-citizens. Further, human life and is protected and reinforced ensuring fundamental rights are respected in various human rights instruments.142 can support migrants to stay engaged with authorities, minimise secondary movement In addition to this mandate, there is evidence and improve the safety and security of that asylum seekers, refugees and irregular both migrant and local populations. Funda- migrants are better able to comply with mental rights may be provided and/or requirements if they are able to meet their supported through laws, policies or practice. basic needs while in the community.143 Those migrants living in stable accommodation Ensuring fundamental appear to be in a better position to remain in contact with authorities than those who have rights are respected can become impoverished or homeless.144 Policies support migrants to stay that restrict access to housing, basic welfare engaged with authori- or health care amongst irregular migrants ties, minimise secondary have not been associated with increased rates of independent departure or deterrence movement and improve outcomes.145 Instead, these policies have been the safety and security associated with poorer health, with serious of both migrant and local consequences for authorities working towards case resolution including return.146 However, populations case management programs that work with clients to meet their basic needs have been associated with higher rates of independent Argentina, Brazil, Costa Rica and Venezuela departure or other case resolution.147 It must strongly espouse the principle of non-discrim- be noted that confnement in immigration ination and do not distinguish between detention is not an appropriate way to provide

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for basic needs, nor does it ensure their fundamental health.”148 Member States are also mental rights are respected, nor does it ensure required to give applicants access to the their fundamental rights are respected. labour market no later than nine months from the date of lodging a protection application.149 In some cases, individuals are able to provide for their own needs through legal work. A number of countries provide asylum seekers Migrants are better able to with the right to work while their status is comply with requirements being determined, as seen in Box 8 Spain, Box 9 Chile and Box 21 Sweden. In the EU, the if they are able to access Reception Directives requires Member States and meet their basic needs to provide asylum seekers with “an adequate while in the community standard of living … which guarantees their subsistence and protects their physical and

BOX 8 ENSURING ASYLUM SEEKERS CAN MEET THEIR BASIC NEEDS SPAIN

In Spain, asylum seekers who meals in a dining hall, public cal services and specialised enter the refugee deter- lounge areas, library, shared services including legal mination process can be computer and Internet ac- aid are available for eligi- housed in an open reception cess and a shared laundry. ble residents. The centres centre if they cannot afford Residents receive ¤50 per also undertake advocacy private accommodation.150 month cash allowance for activities in the local Spanish These centres are operated their own use including pub- community.152 Residents are by the government or by lic transport. Twice a year issued a card that identifes non-government organisa- residents are given money them as asylum seekers and tions. The total reception for clothes. facilitates their access to capacity in Spain is about medical care. Residents are assigned a 850 places, with priority social worker who provides Asylum seekers can be given to vulnerable individu- information and advice on housed in reception centres als. Asylum seekers cannot their situation, works to de- for six months. If they are choose which area within velop an individual pathway still awaiting a decision on Spain they will be located. and assists them in access- their refugee application at The centres are responsible ing education, health care that time, they are sup- for the reception, promotion and other social systems ported to fnd independent and integration of asylum of Spain. All residents are housing and employment. seekers and refugees.151 expected to attend Spanish At this point, they are given Residents are free to come language classes, cultural the right to work. Vulnerable and go from the centres as orientation, and employ- individuals and families may they like. As an example, one ment preparation programs. apply to extend their stay centre provides bedrooms Recreational activities such in the centre for an extra shared by 3-4 single adults, as sports, visits to the lo- six months if needed. The while families have their own cal library, exhibitions and program has been praised room with a small bathroom movies are supported by an by UNHCR for its high stand- attached. There are catered activities offcer. Psychologi- ards.153

29 THERE ARE ALTERNATIVES (REVISED EDITION)

However, those excluded from the labour enough to ensure that people can access market may need fnancial aid or direct these in practice. For example, frontline health provision of goods. Non-government organisa- providers may not be aware of their obligations often play an important role in providing tions to provide treatment to migrant groups for basic needs, with or without govern- and the cost of accessing health services ment funding. In doing so, they create the can be prohibitive. Further, it may be diffcult conditions to enable release from detention. to obtain a work permit and/or employ- Support to meet basic needs can be seen in ment. Work is particularly hard to secure with Box 7 Hungary, Box 8 Spain, Box 9 Chile, Box temporary status with short-term employ- 10 Canada, Box 11 Zambia, Box 14 Hong Kong, ment rights or when limited to working in Box 16 Australia, Box 17 the Netherlands, set industries. An absence of documenta- Box 18 Belgium, Box 19 Hungary, Germany tion and/or previous school records can and the United States, Box 20 Europe, Box result in education providers denying access. 21 Sweden and Box 24 the United States. In some countries, children are only able to access informal learning centres rather than Simply providing legal entitlements to health- government schools, preventing them from care, employment or education is often not receiving an offcially recognised qualifcation.

BOX 9 FORMAL STATUS AND DOCUMENTATION VARIOUS COUNTRIES

In Chile asylum seekers are status in the country. These is required to depart the issued with a renewable cards serve as valid identity country. Individuals hold- temporary stay permit, cards and permit the holder ing a tolerated document valid for eight months, which to access health care and have the right to work, are provides the holder with an education. Amayesh cards required to report regu- entitlement to work. A com- are currently issued for a larly to a territorial unit of prehensive social assistance year and must be renewed the General Inspectorate, scheme ensures asylum annually, at a cost of approx- and must notify authori- seekers and their families imately USD $3 per card. ties of any changes to their are able to meet their basic place of residence. They are In Romania, tolerated status, needs, with access to food, also required to reside in a and an accompanying ‘toler- housing, furniture and particular geographical area ated document’ are issued transportation. An asylum and obtain approval to travel by the Romanian General seeker is entitled to full sup- outside of this area.157 Inspectorate to persons who port for three months; this cannot leave the Romanian In Turkey, stateless persons then decreases to 75% after territory but who would who have been identifed three months, 50% after six not otherwise have a legal are to be issued a Stateless months, and ends after 12 basis to remain.156 Tolerated Person Identifcation Docu- months. However, this may status is granted for an initial ment. This grants the right to be extended in special cir- period of six months, renew- legal residence and access to cumstances.155 able for further six-month health, education and legal Afghan refugees in Iran are periods until the reasons services. issued with “Amayesh cards” for toleration cease to exist. that provide them with legal At that time, the individual

30 THERE ARE ALTERNATIVES (REVISED EDITION)

5.3 Formal status and documentation Box 9 sets out different examples of interim legal status and documentation that can be Formal status – and documentation of that conferred upon individuals awaiting a fnal status – are the third minimum standard to immigration outcome or who have been underpin successful alternatives. Individ- found with no legal basis to remain but are uals who are waiting for a decision on their unable to depart the country due to admin- migration status are particularly vulner- istrative or other reasons. In most examples, able to detention if they do not have formal the granting of legal status and issuance interim status allowing them to remain in the of documentation is accompanied by work country pending case resolution. Documenta- rights and access to social assistance. See tion should be issued that provides evidence also Box 8 Spain, Box 13 Turkey, Box 14 Hong of the individual’s identity and permission to Kong, Box 21 Sweden, and Box 26 Australia, be in the country. Such documentation papers Mexico, Philippines and South Korea. are important because they ensure individuals who have already been screened by authorities are not picked up by another branch 5.4 Legal advice and interpretation of government and re-processed unneces- Legal advice and interpretation are further sarily. Such documentation can also be used minimum standards that ensure individuals are by social support organisations to identify properly advised about their migration and/ those individuals who are eligible for their or detention situation and the legal processes services. It can also act as a de facto reporting surrounding their case. These ensure the right mechanism if it has to be reissued after a set to due process is protected. Individuals are period of time or in particular circumstances. in a better position to comply with authori- If an appropriate visa or status has not been ties if they understand their legal position, the developed, such documentation may state judicial and bureaucratic procedures in which that a deportation order will not be effected they are engaged, and the potential futures until a particular date or outcome is achieved that await them.158 Lawyers and appropri- (see Box 14 Hong Kong). States can build on ately trained migration agents are best able or modify existing processes for issuing visas to provide accurate and reliable advice to to develop such interim statuses.154 Although an individual on these matters. As one study this documentation is most often issued by the concluded, “The single most important institu- governing State, asylum seekers and refugees tional feature that fostered trust was access to in some countries rely on the identifcation early, reliable legal advice and assistance.”159 documents issued by UNHCR to defend their presence in the territory and guard themselves from being detained unnecessarily. Individuals are in a better position to comply with Documentation underpins authorities if they under- successful alternatives to stand their legal position, detention and can serve the judicial and bureau- multiple purposes for cratic procedures in which various stakeholders they are engaged, and the potential futures that await them.

31 THERE ARE ALTERNATIVES (REVISED EDITION)

Caseworkers who are knowledgeable about outcomes (such as a visa refusal), to comply the migration system can reinforce the infor- with conditions and to remain engaged with mation provided by legal counsel and authori- authorities. Where processes are protracted, ties to create a consistent message and provide poorly managed and lack transparency, indi- practical support to complete immigration viduals will be at risk of becoming lost in processes. In addition, the use of legal counsel the system and stuck in situations of uncer- is seen to beneft the immigration system by tainty. This encourages secondary movement creating a fairer system160 and increasing eff- or going ‘underground’ as a strategy to ciency and consequently reducing costs overall continue progressing with their lives. by ensuring decision-makers are not required to delay proceedings or spend time clarifying Elements that impact on the fairness of the case claims made by applicants without representa- resolution system include diffculty obtaining tion.161 Legal aid programs for migrants are seen information on immigration processes, incon- in numerous countries including Japan, Jordan, sistent or contradictory information or Thailand, Egypt, the United States and Yemen. decisions, weak mechanisms for appealing The majority of these were administered by negative decisions, and a lack of transparency non-government organisations to provide legal of the decision-making process (such as reasons assistance and counselling to asylum seekers in for negative decisions). A prolonged and inef- their refugee status determination programs, fcient case resolution process can also impact to asylum seekers and irregular migrants in a person’s belief in the system and willingness employment matters, or to assist persons to accept fnal outcomes, whether it be inde- who are detained or at risk of detention. pendent or voluntary departure or deportation. Further, as noted in Section 8.3 Detention as a Interpretation and translation are also extremely last resort, with review, immigration detention important to ensure vital information is effec- is usually experienced as a severe injustice due tively communicated.162 In addition to translated to being incarcerated despite believing them- written materials, qualifed interpreters improve selves innocent of any crime.164 This feeling of communication with lawyers, caseworkers injustice can saturate their experience of the and immigration offcials. When interpreters immigration procedure and lead them to believe cannot be on site, telephone-based interpreta- that their case has not been heard fairly. This tion services may be the next best option.163 can make it diffcult to work towards return for those found to have no legal right to remain in the country. Deportation can be extremely 5.5 Fair and timely case resolution diffcult to achieve if the person does not want Another important minimum standard is the to comply, even with detained populations.165 fair and timely resolution of migration status. Fair and timely case resolution is a funda- 5.6 Regular review of mental requirement for an effective and sound placement decisions migration management system. As demonstrated earlier in this Handbook, individuals The fnal minimum standard is regular review are more likely to accept and comply with of placement decisions in order to reassess the a negative decision on their visa applica- necessity and proportionality of any condition, status determination or other immigra- tions or restrictions imposed and to take into tion process if they believe their application account any changes in an individual’s circum- has been assessed in a fair and just manner. stances. Alternatives that restrict liberty are If an individual believes the system is unfair, subject to human rights standards, including they will be much less likely to accept negative periodic review by an independent body.166

32 THERE ARE ALTERNATIVES (REVISED EDITION)

As applicable, individuals subject to alterna- pendent review, whether by the courts or an tives need to have timely access to effective independent administrative body.171 Review complaints mechanisms as well as remedies.167 by a court or independent administrative body ensures independent and systemic Regular reviews also give authorities a chance oversight. Such transparency ensures that to reassess a person’s willingness to remain the reasons for taking the decision to detain engaged with authorities on the progress of have been well established by the deci- their migration case and to comply with any sion-maker and that the person concerned conditions imposed. As seen in Box 10 Canada, has had a genuine opportunity to present reducing conditions to reward and reinforce relevant evidence and raise concerns. compliance is an effective tool in maintaining engagement. Regular reviews also enable Avenues for release from detention may authorities to identify changes in circumstances include bail or bond schemes (described in that affect placement decisions, such as new Bail, bond, surety or guarantee) or release at vulnerability or risk factors, and identify any the end of a maximum period of detention. new or enduring barriers to case resolution.168 Release may also result from issues of vulnerability and duty of care, such as when someone Further, the right to judicial review of any develops serious mental health issues that decision to detain is key for preventing arbitrary are compacted due to their ongoing confne- detention.169 It is particularly important that ment or, in the case of stateless persons, to limit systems of detention include regular, inde- periods of detention when waiting for a resolu- pendent review of the detention decision and tion of their situation.172 Developing pathways of potential avenues for release. The ability to into community options ensures detention is challenge one’s detention in an impartial court not the result of a lack of options for release. is a fundamental mechanism to safeguard indi- See Box 25 Canada and Box 26 Australia, vidual freedom against arbitrary detention. Mexico, the Philippines and South Korea.

Regular reviews enable authorities to identify changes in circumstances that affect placement decisions, such as new vulnerability or risk factors, and identify any new or enduring barriers to case resolution.

One of the strongest mechanisms to achieve this is to establish in law that any decision to detain requires judicial approval, as seen in Argentina (Box 1) and Germany.170 Decisions regarding confnement should be regulated through automatic, prompt and regular inde-

33 THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 10 REGULAR REVIEW CANADA AND THE EUROPEAN UNION

The Toronto Bail Program in support, information and year, it maintained a 96.35% Canada provides an example advice, reporting and super- retention rate;175 in the 2013- of the importance of regular vision. Those who enter the 2014 year, it was 94.31%.176 review of conditions. The program are initially placed Member States of the Eu- program has been operat- in intensive supervision, with ropean Union are required ing since 1996 as a specialist regular reporting. These to undertake timely judicial agency funded by the gov- conditions are reviewed and review of detention deci- ernment.173 The organisation reduced after a period of sions, by way of Article 15 (2) identifes eligible detainees compliance, building trust of the Return Directive and through a screening and as- between case managers and Article 9 (3) of the revised sessment process and then participants. Case manag- Reception Conditions Direc- supports their application ers also identify and address tive.177 In addition, Article 15 for release on bail. Clients issues such as substance (3) of the Return Directive include migrants who are abuse, drug addiction or and Article 9 (5) of the Re- facing departure after com- mental health needs, as ception Conditions Directive pleting a prison sentence, these personal issues often establish that detention has refused refugee claimants, impact compliance. The to be reviewed at reasonable and asylum seekers detained program costs CA$10-12 per intervals of time either by due to issues of credibility or person per day compared application from the third- fight risk. The program relies with CA$179 for detention.174 country national or ex offcio. on strong case management, In the 2009-2010 fnancial

34 THERE ARE ALTERNATIVES (REVISED EDITION)

6. Identifcation and decision-making

Screening and assessment are crucial for including prior to making a placement ensuring effective migration governance. decision and at periodic intervals during Individual screening and assessment are the such placement. Ongoing periodic reas- only ways to ensure detention meets the sessment is crucial to review and adjust tests of necessity and proportionality and is placement decisions and to ensure any condi- not arbitrary. Indeed, immigration authori- tions on their placement are still necessary. ties are increasingly using screening and assessment to ‘screen out’ those who should not be detained and to make informed Screening and Assessment placement and management decisions. are different yet comple-

Through individual screening and assess- mentary processes that ment, governments can identify and evaluate allow authorities to adjust risk, needs, vulnerabilities and strengths to placement decisions and make an informed case-by-case decision on to ensure any conditions how to place, manage and support an individual while their immigration status is being on their placement are still resolved. Screening and assessment can necessary occur at all stages in the migration process,

35 THERE ARE ALTERNATIVES (REVISED EDITION)

Screening is the process to obtain basic Figure 2: Understanding the population through information and individual attributes, such individual assessment as bio-data. Information collected during screening includes, inter alia, an individual’s identity, nationality, legal status, health status, security indicators, vulnerability indicators and compliance history. This informa- Legal Obligations tion can be used to determine the individual’s migration status and to make initial referral, management and placement decisions. Identity, Community Health & Vulnerability Assessment involves a more in-depth evalua- Context Security tion of an individual’s circumstances, vulner- Checks abilities and/or risk factors. An assessment may be conducted to evaluate needs identifed during screening (e.g. traffcking survivor or Individual Case Factors stateless) or it may involve an in-depth exami- nation of the appropriate course of action to take for a particular person. An assessment may occur at the same time and by the same person conducting the screening, or it may happen at a later date and on a 6.1 Legal obligations repeat basis by caseworkers, immigration It is of primary importance that detention is offcers and/or members of the judiciary. legally applied in each case to protect indi- Assessments are used to make or adjust viduals from arbitrary or wrongful detention. A management and placement decisions. process that screens individuals against international human rights laws and standards and Screening and assessment of the indi- national laws and policies regarding detention vidual case can include several factors. can reduce the likelihood of unlawful detention The sections below will describe four and the costly litigation and public criticism key areas that are considered central to that can entail. An assessment of legal obli- effective case management with migrants. gations in each individual case can establish As seen in Figure 2, these areas are: the lawfulness of detention and identify any Æ Legal obligations legal requirements that must be fulflled. Æ Identity, health and security checks Æ Vulnerability Many countries have laws that outline mandatory actions in particular migration Æ Individual case factors cases, including that certain vulnerable indi- Æ Community context viduals, such as children, cannot be detained. These will vary according to national law and, in some cases, regional agreements. States must be extremely careful that the right to be protected from arbitrary detention will be upheld should any form of mandatory detention be considered.178

36 THERE ARE ALTERNATIVES (REVISED EDITION)

Some of the obligations imposed that Finally, there may be laws or policies might be assessed at this stage include outlining the circumstances in which those that prevent the detention of people who are already in detention particular people, such as unaccompa- must be released. These can include: nied children (Box 7 Hungary). Laws may Æ When a duty of care cannot be met within also prohibit the detention of citizens and a detention environment residents with legal status or other vulner- Æ When a maximum period of detention has able individuals (as seen in Section 4.4.) been reached Law or policy may require that alternatives Æ When a visa is issued or right to stay to detention are applied or shown to be inad- achieved equate in an individual case before detention can be applied, as seen in Section 4.

BOX 11 SCREENING AND ASSESSMENT IN A MIXED MIGRATION CONTEXT ZAMBIA

Between 2013 and 2014, the children, stranded migrants After this comprehensive government of Zambia col- and stateless migrants. assessment, migrants are laborated with the IOM, UN- referred to relevant service The NRM process starts with HCR and the United Nations providers to address short, an initial interview and regis- Children’s Fund to develop medium and long-term tration of migrants by front- the capacity of national ac- needs and to appropriate line offcers.181 The purpose tors to respond to the needs authorities to facilitate case of this initial interview is to of vulnerable migrants in a resolution. assess immediate protec- mixed migratory context. A tion/assistance needs and Following an initial piloting technical taskforce involving to collect and register basic stage, the Guidelines have several government minis- bio-data. been rolled out across Zam- tries, police and civil society bia. More than 200 front-line groups was formed to sup- The migrant is then referred offcers have received train- port the program’s goals. to the relevant authority ing on the Guidelines and for a more comprehensive A National Referral Mecha- NRM.182 Initial monitoring assessment and status nism (NRM)179 and associated and assessment has shown determination. The relevant Guidelines were developed a strengthened capacity of authority may include the to effectively identify vulner- front-line offcers and ser- police (for victims of traf- able migrants and refer them vice providers to: (a) identify fcking), the social welfare to appropriate authorities various vulnerable migrants ministry (for unaccompanied and services.180 Accord- using the Profling Form; (b) or separated minors), the ing to the NRM, vulnerable refer migrants to relevant au- Offce of the Commissioner migrants include refugees, thorities and service provid- for Refugees (for refugees, asylum seekers, rejected ers; (c) provide appropriate asylum seekers and refused asylum seekers, victims protective services; and (d) asylum seekers) and the of traffcking (including coordinate and collaborate immigration authorities (for ‘presumed’ and ‘potential’ with stakeholders to improve stranded migrants or state- traffcked persons), unac- protective services for vul- less persons). companied and separated nerable migrants in Zambia.

37 THERE ARE ALTERNATIVES (REVISED EDITION)

Incorporating legal obligations into a 6.2.2 Identity checks screening and assessment process ensures Identity checks establish the key elements that decisions regarding detention are of a person’s identity such as their name, lawful, protecting both individuals and country of origin, country of citizenship and the State from the harmful consequences date of birth. This is sometimes easily estab- of unlawful or arbitrary detention. lished when identity and travel documents, such as passports, concur with all other 6.2 Health, identity and security checks evidence. However, establishing identity can prove diffcult if the person has been A central component of any screening and forced to fee a country of persecution assessment process is having standard without original documentation or if they government health, identity and security are attempting to enter under an assumed checks. These three assessments are vital for name.186 This research cannot speak to these managing and regulating the entry and exit of issues; however, the inability to provide docu- people from a territory. A number of countries mentation establishing identity should not have introduced streamlined identity, health be a reason to detain, as detention in these and security checks to minimise the use or circumstances would arguably violate the period of detention during these processes. norms of necessity and proportionality.

6.2.1 Health checks The inability to provide A medical assessment allows the government to check for any health issues, including documentation estab- communicable diseases such as tubercu- lishing identity should not losis.183 Health checks enable the govern- be a reason to detain ment to identify and treat key health issues and to protect public health. They can also be used to uphold the health of detained popu- Further, evidence shows asylum seekers are lations by ensuring contagious diseases are predisposed to cooperate with immigra- not introduced to detention centres. Checks tion procedures while their status is being can also ensure the screening out or release determined, and therefore detention cannot of seriously ill people from detention. Health be considered necessary on the basis of a checks are sometimes used to limit any unfair presumption of absconding.187 Indeed, many burden of national health care systems; countries house asylum seekers in open however this must be exercised with caution accommodation centres while undertaking to ensure that individuals who are seriously ill identity confrmation including Sweden, do not face inhumane suffering should they Finland and Germany, while Canada directs its be denied medical attention or face depor- offcials to release individuals who are coop- tation without the prospect of appropriate erating with efforts to establish their identity medical care on return.184 Sweden offers health but whose identity cannot be established.188 checks to asylum seekers on arrival but this is only mandatory if there are visible signs of illness that may impact public health.185

38 THERE ARE ALTERNATIVES (REVISED EDITION)

6.2.3 Security checks and Hong Kong (Box 14) Such checks should be undertaken as soon as possible and in A security check establishes that the indi- a timely manner to ensure detention is not vidual concerned does not pose a threat to prolonged unnecessarily. Individuals who national security or public order. A history of are cooperating with efforts to undertake participating in terrorist networks or human a security check should not be forced to rights abuses may, among other things, endure prolonged detention. Individuals preclude entry into the territory if it is consid- who are considered a security risk through ered an issue of national security or public this process must have an opportunity to order. Countries that include security concerns understand the basis of that assessment and in risk assessments include Australia, the have the chance to provide further informa- United Kingdom, the United States (Box 12)

BOX 12 SCREENING AND ASSESSMENT THE UNITED STATES

In March 2013, US Immigra- what levels of supervision The Risk Classifcation tion and Customs Enforce- should be placed on the in- Assessment tool requires ment (ICE) deployed a new dividual, and (c) if detained, ICE offcers to screen for Risk Classifcation Assess- the individual’s custody the existence of family ment instrument nationally. classifcation level. The tool ties, immigration history This is the frst automated guides ICE offcers through including compliance with system of individualised a multi-staged process of previous immigration deci- assessment used to assist decision-making, starting sions, as well as medical, placement determinations. with a legal assessment of mental health and other The Risk Classifcation As- whether the individual is vulnerability triggers at the sessment tool was devel- subject to mandatory deten- outset. It includes prompting oped in response to criticism tion, or whether detention questions for a number of over the increasing numbers would otherwise be required. vulnerability triggers includ- of people being unneces- In respect to the latter, the ing disability, advanced age, sarily detained or detained Risk Classifcation Assess- pregnancy, nursing mothers, for prolonged periods. Such ment tool uses objective sole caretaking responsi- detention was taking place classifcation scales and bilities, mental health issues, without uniform, individual- mathematically weighted and victimisation, including ised assessment or determi- factors/algorithms to score aliens who may be eligible nation that their detention the risk that an individual for relief under the Violence was proportionate or justi- poses to the community. against Women Act, survi- fed, including whether they Persons who do not pose vors of crime, or survivors were a danger to society, or a risk to the community of human traffcking.190 It is a fight risk.189 and who are eligible to be designed to take eight min- released are then assessed utes to complete. It remains The Risk Classifcation As- using additional factors that to be seen how effective the sessment tool is used during score the risk of abscond- tool is in a context where the detainee intake process ing. The results determine conditions are applied rigor- to determine (a) whether a the type of alternative best ously and there is a historical person should be released suited to the individual. predisposition to detain.191 or detained, (b) if released,

39 THERE ARE ALTERNATIVES (REVISED EDITION)

tion to defend their claims before an inde- Figure 3: Assessing vulnerability pendent body, with legal advice. The assessment of risk associated with migrants who have completed a prison sentence is included Elderly and children as an issue of character in Section 6.4.5. Age particularly unaccompanied and separated minors.

6.3 Vulnerability Women at risk, nursing An assessment of vulnerability can ensure mothers and pregnant women Gender / management strategies are sensitive to the Diversity and those at risk due to sexual particular needs of vulnerable individuals orientation or gender identity and incorporate appropriate support. Such an assessment can identify those individ- Physical and mental ill health uals who require additional support to meet or disability and psychosocial their basic needs or undertake daily activi- Health and welfare factors. ties, as well as identifying those who require extra assistance to understand and negotiate migration procedures and to meet the condi- Refugees, asylum seekers, tions of their release. Particularly vulner- stateless persons, traffcked able individuals may have fewer personal Protection persons, survivors of torture needs resources to cope with the detention environ- and trauma and of sexual and ment and may be at higher risk of harm.192 In gender-based violence. some countries it has been established that certain vulnerable individuals should never be detained, as discussed in Section 4.4 . 6.3.1 Age

Vulnerability assessments identify the ways in Vulnerability assessments should identify which an individual’s position in society places those individuals whose age places them them in an unequal relationship with others. in a position of vulnerability. Economic, Work on this concept focuses on the contexts political and personal power in society is that create vulnerability by framing assess- often dependent on age. Elderly people who ments around what people may be vulnerable are frail or no longer able to work are often 193 to. However, most vulnerability assessments dependent on others to provide for their basic currently in use identify certain categories of needs.195 Policies in Canada196 and China both people as being vulnerable based on particular require that detention is avoided or used 194 personal characteristics. For the purposes as a measure of last resort for the elderly. of this report we will discuss four areas which Similarly, children mostly rely on adults to have traditionally been used to identify vulner- provide for their basic needs, and should never able individuals, as seen in Figure 3. These are: be detained, as discussed in Section 4.4 . Æ Age Æ Gender / Diversity 6.3.2 Gender / Diversity Æ Health Gender, gender identity, sexual orientation Protection needs Æ and visible markers of diversity can create vulnerability in some contexts. Women at risk, nursing mothers and pregnant women

40 THERE ARE ALTERNATIVES (REVISED EDITION)

are likely to be more vulnerable in a detention with obtaining medical attention. Such assis- setting. Sexual orientation and gender identity tance can meet duty of care obligations while can also create vulnerability, particularly in a also ensuring a person’s ill health does not detention context.197 Identifying these issues interfere with their ability to meet the require- during a vulnerability assessment can assist in ments of their placement in the community. ensuring management choices include a safe For instance, someone who is suffering from living environment, as seen in Box 18 Belgium. a chronic illness may not be physically able UNHCR Detention Guideline 9 offers further to maintain regular reporting requirements guidance on this in relation to asylum seekers. despite a willingness to remain in contact with authorities.198 Additional psychosocial factors that impact wellbeing and create vulnera- 6.3.3 Health bility include a serious breakdown in family Those with serious issues impacting on relationships, those experiencing violence their health and wellbeing may be vulner- or abuse or children with serious behav- able during a migration status determina- ioural problems.199 Countries that screen tion process. Those with physical or mental and assess for health vulnerabilities include health issues that compromise their independ- Hong Kong (Box 14) and Australia (Box 16). ence may need assistance with daily care and

BOX 13 PROHIBITING THE DETENTION OF VULNERABLE INDIVIDUALS TURKEY

For the frst time, Turkey ing, international protection permits are issued (with has introduced a compre- status holders, international specifc permits for victims hensive framework for the protection applicants (ex- of human traffcking). These governance of migration. cept in set circumstances) permits can also be issued The Law on Foreigners and and stateless individuals. to individuals for whom a International Protection deportation order has been The LFIP also exempts a (LFIP) was ratifed by the issued but who cannot be number of vulnerable indi- Turkish Parliament on 4 April deported (e.g. because their viduals from deportation 2014. It introduces important country of origin refuses to orders and, therefore, deten- protections and procedural accept their return). Permit tion. This includes individuals safeguards in administrative holders may be required to who are at risk of torture/ decision-making for persons reside at designated recep- ill-treatment if expelled; are seeking international protection and accommodation unable to travel due to poor tion. It also excludes certain centres and to report to health, age or pregnancy; re- vulnerable individuals from authorities at specifed pe- quire medical treatment that detention and introduces riods. The permit includes a cannot be obtained in the alternatives into law for the foreigner identifcation num- country of origin or return; frst time. ber, which is used to access or are victims of serious psy- health care, education and Under the LFIP, detention chological, physical or sexual legal services. Asylum seek- is prohibited for unac- violence, until treatment is ers may live with freedom companied minors seeking completed. of movement if they reside international protection,202 For such vulnerable individu- in their allocated ‘satellite victims of human traffck- als, humanitarian residence city.’203

41 THERE ARE ALTERNATIVES (REVISED EDITION)

An assessment of health and wellbeing is Æ Anticipated length of time until case particularly important in detention cases, as resolution many detainees have limited access to appro- Æ Intended destination priate medical care especially for serious or Æ Family and community ties chronic conditions. In addition, detention Æ Character including compliance to date may be a core contributing factor to the Æ Belief in the process onset and/or deterioration of some health conditions, as discussed in Section 1.3.3. 6.4.1 Stage of migration process

6.3.4 Protection needs It is important to understand what stage an individual has reached in the migration process International human rights agreements in order to place them in an appropriate highlight the responsibility of States to protect setting. People who are still awaiting a primary vulnerable individuals on their territory. Among decision on their visa application are in very others, these agreements protect children, different circumstances to those who have asylum seekers and refugees, survivors of been refused a visa at all levels and have no torture, victims of human traffcking, women further legal avenues to remain in the country. and stateless persons.200 Regional agreements in Latin America and Africa offer addi- One area of consensus is that asylum seekers tional protection to migrants who have been and irregular migrants rarely abscond while forced to leave their country for legitimate awaiting the outcome of a visa application, reasons.201 In addition, those who have experi- status determination or other lawful process, enced torture, violence or trauma may be more if in their destination country. Statistics from vulnerable to the harmful effects of detention the United States’ Department of Justice and at higher risk of re-traumatisation by being show that over 85% of asylum seekers who placed in a prison-like setting. Vulnerability were living independently in the community assessments will identify those individuals without restrictions on their freedom of with protection needs and ensure they access movement appeared for their hearings with asylum or other protection processes and are an Immigration Judge, without any extra placed in an appropriate environment while conditions being imposed.204 Such results their status is assessed. See also UNHCR’s indicate monitoring or other conditions may Detention Guidelines for applicable criteria and not be necessary for many people who are standards relating to asylum seekers as well as still engaged in assessment procedures. Box 8 Spain, Box 13 Turkey and Box 21 Sweden. It is important to note that this factor does not determine compliance alone, as several 6.4 Individual case factors countries have successful programs working There are a range of factors relating to the with people in a community setting who are individual and their situation that may be facing return or deportation, as seen in Box relevant when considering what supports 10 Canada, Box 16 Australia, Box 17 the Neth- or extra conditions might be needed in erlands, Box 18 Belgium and Box 21 Sweden. order to manage them appropriately in a However, these programs take the stage of community setting. Some of the key areas the migration process into account and make to incorporate in this assessment include: use of additional supports and conditions to assist these individuals to work towards Æ Stage of migration process independent departure whenever possible.

42 THERE ARE ALTERNATIVES (REVISED EDITION)

6.4.2 Anticipated length of time ensures the best chance of obtaining a until case resolution visa or other legal grounds to remain.

The anticipated length of time until a migration This factor is not related to whether the process is complete or until deportation host country itself is categorised as a transit can be achieved is also an important factor or destination country. Instead, it is more when considering alternatives, as seen in effective to establish whether that country Box 1 Argentina, Box 10 Canada and Box 14 is the intended destination of each indi- Hong Kong. Detention cannot be justifed vidual. For instance, one study in the United when it is clear that a visa decision or depor- States assessed compliance amongst a group tation will not be achievable in a reason- of asylum seekers released from detention. able amount of time, given that the like- It found that those individuals who had lihood of psychological harm escalates said Canada was their intended destina- the longer someone is detained.205 tion were least likely to appear at their immigration hearings.207 The categorisation of Certain migrants are at the United States as a ‘destination country’ was not of consequence to those individ- greater risk of unnec- uals who were intent on reaching Canada. essary, prolonged or

repeated detention when 6.4.4 Family and community ties

they should instead be Many people are driven by their commit- placed in community alter- ment to their family and this can shape natives migration journeys in particular ways. Families with young children are generally considered to be less likely to abscond, espe- Certain migrants are at greater risk of unnec- cially when engaged in social systems such essary, prolonged or repeated detention as schooling,208 as are those individuals with when they should instead be placed in family in the community who provide an extra community alternatives, including: stateless source of support and point of contact.209 persons; migrants whose countries of origin Those who have left family behind may risk or domicile are unable or unwilling to issue working unlawfully in order to send remit- travel documentation; migrants facing depor- tances to loved ones struggling overseas. tation to a country which is in turmoil due Despite these concerns, many families to war, violent confict or natural disaster; comply with diffcult restrictions for long and migrants who cannot be returned periods in the hope that they will even- due to a serious medical condition.206 tually be reunited in a safe country.210

Ties to the local community are also important 6.4.3 Intended destination when assessing the individual case.211 Local if they are in their destination country and community ties increase the likelihood that the awaiting the outcome of a visa applica- person will remain in the local area or in regular tion, status determination or other legal contact with their networks. Factors used to process. It stands to reason that absconding assess these ties include whether the person is unlikely while there is a real prospect of has close family or relatives, strong social gaining legal status in a preferred destina- networks including membership in a religious tion, as remaining engaged in the process organisation, a stable address, employ-

43 THERE ARE ALTERNATIVES (REVISED EDITION)

ment, an ongoing course of study or training reach case resolution in the community and and ownership of property or business. should not be automatically excluded from Length of time living in the community community placement.212 Countries that make may also be an indicator in this respect. use of such assessments are able to identify those individuals with a history of non-compli- Notwithstanding these existing ties, effective ance and introduce more stringent condi- ties can be established quickly for new tions to mitigate risk of absconding, such arrivals who do not have existing connec- as those outlined in Section 8.2 Conditions tions but who join community or religious or limited restrictions in the community. organisations that provide support and/ or case management on release. It should be noted that irregular migration status in and of itself does not indicate a Family or community ties are often likelihood of absconding. In addition, the assessed as part of a bond or supervi- use of fraudulent documents when feeing sion program, as discussed in Section persecution or other serious harm should 8.2.3. See also Box 14 Hong Kong, Box 24 not be considered an issue of character. the United States and Box 25 Canada. Character assessments including previous compliance with conditions of release or 6.4.5 Character including compliance to date departure are factors used to assess fight risk As in the criminal justice setting, many in, inter alia, Australia Box 16, Canada Box 25, countries rely on evidence of a person’s Hong Kong Box 14, South Africa, the United character, including their previous compli- Kingdom and the United States Box 24. ance with authorities, when considering the most appropriate management option. Past 6.4.6 Trust in the process behaviour can be a good indicator of future choices and character assessments can help Evidence from the IDC’s program of research in establishing reasonable expectations. shows that asylum seekers, refugees and migrants are more likely to accept and comply with a negative decision on their visa applica- Irregular migration status tion, status determination or other immigration in and of itself does not process if they trust they have been through indicate a likelihood of a fair process; they have been informed and supported through that process; and they absconding have explored all options to remain in the country legally.213 In contrast, those individuals who believe their case has never been heard For instance, someone who has a history of properly or who have felt that the process cooperating with authorities may be reason- has been unfair are more likely to appeal a ably expected to continue to behave in a trust- negative decision, fnd another avenue to worthy manner until evidence to the contrary remain in the country, or undertake secondary arises. Evidence of previous cooperation with movement.214 An assessment of an individ- authorities may include complying with author- ual’s belief in the process will help identify ities while completing a community service or those who may require additional supports prison sentence. Individuals who have served to achieve a sustainable case resolution. a sentence for a crime can be supported to

44 THERE ARE ALTERNATIVES (REVISED EDITION)

Full and timely legal advice and case manage- region of their country of origin or provision ment throughout the process are key mech- of more substantial repatriation support that anisms to support this outcome. However, may assist the person to overcome their some people will not have faith in the bureau- disbelief at a negative decision and avoid cratic process they have been through, such the trauma and force involved in deporta- as if they know of a similar case that has tion. For more information on support while received a different outcome215 or if they are working towards removal, see Section 7.2. facing serious threats to life or liberty on return that fall outside protection mechanisms.216 In these cases, it is particularly 6.5 Community context important that caseworkers and lawyers The fnal element of screening and assess- recognise these concerns, by exploring all ment is to identify and assess what options options to remain in the country legally. If no are available in the community context to further options remain, it may be necessary support individuals. Contextual factors, which to explore alternative solutions, such as are often outside the control of the individual, removal to a third country, to a different may have a signifcant impact on their ability

BOX 14 IDENTIFYING INDIVIDUALS WHO DO NOT NEED TO BE DETAINED HONG KONG

Authorities in Hong Kong Æ Whether that person’s organisation arranges hous- SAR undertake screening identity is resolved or ing in the community and and assessment of irregular satisfed to be genuine; provides food, clothing and migrants when considering Æ Whether that person has medicine. Using a case man- 217 detention. Detention policy close connection or fxed agement approach, workers states that “[i]n determin- assess each case on intake abode in Hong Kong; and ing whether a person should and develop an appropriate Æ Whether there are other be released or detained, the program of response, in line circumstances in favour Director/Secretary will take with the resources available. 218 into consideration all the of release.” Vulnerable clients, such as relevant circumstances of After a short period of unaccompanied minors, are the case, including: detention, most vulnerable given priority and extra sup- Æ Whether the person’s individuals including asylum port as able. The program costs HK$109 per person per removal is going to seekers and torture claim- ants219 are released on their day and has a compliance be possible within a own recognisance. This may rate of 97%.220 Caseworkers reasonable time; include conditions of self- are not responsible for com- Æ Whether that person surety and minimal reporting pliance matters, although concerned constitutes a requirements. Asylum seek- known breaches must be re- threat / security risk to ers and torture claimants are ported to authorities. Other the community; issued with recognisance non-government organisa- Æ Whether there is any papers documenting their tions in Hong Kong provide risk of that person’s status in the community. A pro bono legal advice and absconding and/or (re) government-funded project support services, which offending; run by a non-government strengthen this community context.

45 THERE ARE ALTERNATIVES (REVISED EDITION)

to maintain their commitments with authorities available, and a referral process to subse- and to stay engaged with the case resolution quently place them in that measure. The key process. Community context can be assessed is to streamline such processes with clear at a systemic level, to identify existing infra- identifcation and referral policies, practical structure and mechanisms that may be tools, information and multi-stakeholder engaged, as well as at an individual level, collaboration, as seen in Box 11 Zambia. to make case level decisions about support needs and placement options. For instance, For governments interested in developing or this can include ensuring that housing, expanding community options, it is important nutrition and other minimum standards to assess at a systemic level what mechanisms are going to be met. If not, then authorities are already available in the community that may need to arrange additional supports. could be used to support and manage individuals outside of detention – even if this is not the current primary purpose of those mecha- Governments can invest nisms. For example, the expansion of national in the community context child protection programs to include unaccompanied children, such as in Hungary (Box 7). to strengthen support structures and mitigate concerns

Assessing the community context assists decision-makers in deciding on the best placement options available for an individual. It enables the individual being screened and assessed to be placed into the most appropriate and effective alternative to meet their needs and rights and to allow them to stay engaged with immigration processing. This does not need to be labour intensive: successful assessment includes processes to identify the options

46 THERE ARE ALTERNATIVES (REVISED EDITION)

7. Case management

The majority of successful alternatives iden- outcomes before them.221 Case resolution, in tifed during this research rely on case comparison, focuses solely on the outcome management to work towards case resolu- of the migration case. This responsibility sits tion, while maintaining high levels of compli- with immigration authorities. However, case ance with conditions and restrictions while management can contribute to timely case in the community and improved health and resolution by identifying barriers to migration wellbeing. Case management centres on outcomes and working on shared solutions. understanding and responding to the unique Case resolution relies on a wide range of needs and challenges of individuals and their visa, residency and departure options. context. Case management is designed to empower individuals to resolve issues independently and link with additional supports 7.1 Case management and support when needed. Case management relies on Case management is a comprehensive identifying all the needs and strengths of and systematic service delivery approach the individual; addressing those needs and designed to ensure support for, and a building upon the strengths as able with coordinated response to, the health and available resources; and building resilience wellbeing of people with complex needs.222 in the individual to deal with the range of Case management centres on under-

47 THERE ARE ALTERNATIVES (REVISED EDITION)

standing and responding to the capaci- immigration cases or undertake compli- ties, needs and challenges of individuals and ance enforcement. Rather, the case manager their context, including personal resources, forms an essential link between the indi- vulnerability, protection and risk factors. vidual, authorities and the community. Case managers can be particularly important for: Case managers can Æ Promoting informed decision making by both the government decision-maker contribute to timely case and individual in question. Case managers resolution by identi- can ensure case-by-case, initial and fying legal, practical and ongoing assessments of the risks, vulner- personal barriers to likely abilities and needs of an individual that may impact on their capacity to remain outcomes and working on engaged with the authorities and comply shared solutions. with any conditions or restrictions. In providing such early and ongoing intervention, case managers can help reduce Case managers form working relation- instances of unnecessary immigration ships with individuals and families in order detention and ensure placement decisions, to empower them, enhance their wellbeing including any conditions or restrictions, and problem-solving capacities, resolve are continually re-evaluated. outstanding issues, provide information on Æ Case managers can also facilitate how to obtain services and resources in their an individual’s timely access to all communities, and work towards the protec- relevant information, options, rights tion of people who are not in a position and responsibilities. They can help to do so themselves. Case managers are ensure that individuals have an under- generally social workers, psychologists or standing of their immigration status, 223 other human services professionals. legal and administrative processes, and the options available to them in their Case management is described below in more country of origin or another country. detail in the context of migration govern- The more transparent the process, the ance. Practical examples are found in Box 7 more likely a person is to feel that all Hungary, Box 8 Spain, Box 10 Canada, Box 11 claims have been heard and considered, Zambia, Box 14 Hong Kong, Box 15 Two Case and to understand what their options Studies, Box 16 Australia, Box 17 the Nether- are. This helps to promote an individu- lands, Box 18 Belgium and Box 21 Sweden. al’s trust in the system, and belief that they have been through a fair process. 7.1.1 Case management with migrants Æ Promoting timely and fair case Applied in the context of migration, case resolution. Case management can management is a strategy for supporting assist in achieving faster and more and managing refugees, asylum seekers, sustainable immigration decisions, stateless persons and irregular migrants in building confdence in the determina- the community or in detention, while they are tion process and reducing unmeritorious working towards achieving case resolution.224 appeals. This in turn can improve fnal The case manager role differs to that of an immigration outcomes, be that integration immigration offcer, bureaucrat or guard. Case for individuals granted status, or voluntary managers do not make decisions on people’s or independent departure for refused

48 THERE ARE ALTERNATIVES (REVISED EDITION)

individuals. For example, with a consistent, 7.1.2 The case management process trusting relationship between case Screening, assessment, case planning, inter- manager and individual, the individual vention and ongoing review are the key may disclose critical case information that steps in the case management process. authorities may not yet be aware of. With This process is visualised in Figure 4 client consent and transparent commu- and described in more detail below. nication for the purpose of information- gathering, case managers can work with Figure 4: The case management process the individual, lawyer and immigration authorities to ensure this is included as Process early as possible, to try and prevent the need for case review later. In addition, 1. case management assists with preparing Screening clients and establishing realistic expectations on immigration decisions, including exploring independent departure options Outcomes 5. 2. if refused. Case Informed decision making Assess- Æ Promoting coping and wellbeing by Closure Timely and fair case resolution ment Improved coping and wellbeing facilitating access to community services Avoid unnecessary and wrongful and support networks. Where a person detention with an identifed vulnerability (such as 4. 3. a health concern or torture experience) Inter- Case is supported during status determina- vention Planning tion, better outcomes for the individual, community and government are achieved R w regardless of the immigration outcome. egular Revie For example, if a person is granted refugee status or a visa, the support received could mean that they are better 1. Screening placed to make a meaningful contribu- It is recommended that screening should tion to society. Alternatively, the person take place as early as possible, at the may be in a better position to return time of irregular arrival, detection in home and resettle if their case is refused. the community with irregular status, or Strategies used by case managers in lodging of an asylum or protection claim. working with individuals facing removal Where an indication of vulnerability or include exploring legal options to remain, risk is present, the individual should be third country options, relocation to referred for comprehensive assessment. another area within the country of origin if safe to do so, and repatriation assistance. 2. Comprehensive assessment Case managers also have the fexibility to respond to barriers to return. This Following an indication of risk or vulnerability may include stabilising health conditions, during screening, assessment provides a basis obtaining travel documents and/or for further decision making. Through consid- helping to establish contact with family, eration of all systems and factors impacting friends or support organisations in the on the individual, a case manager can identify country of return. and address issues regarding basic needs and

49 THERE ARE ALTERNATIVES (REVISED EDITION)

protection, whilst also considering systemic and client, individuals are supported to and policy issues including the government’s explore all possible immigration outcomes need to manage a person’s immigration status. from the time of their case being opened. The case manager will engage with the client and all key stakeholders, including immigra- Regular and ongoing review tion authorities, health professionals, legal counsellors and family members to under- As work and relationships develop, the stand the client’s vulnerabilities, strengths and case manager will continuously monitor the risks and what kind of support the client may situation so any emerging needs or change need to ensure wellbeing and timely case reso- in situation is identifed and responded to lution. This may lead to a recommendation accordingly, working towards a case outcome. about appropriate management responses. 5. Case closure

3. Case planning The case is closed when the individual Understanding the needs and priorities of departs the country or is granted the right the individual, and the individual’s under- to remain. In both instances, referral to standing of their situation, may demonstrate another service provider for ongoing assis- what action is needed to assist an expedi- tance should be considered, if required. tious case resolution. It may be legal assistance to lodge a thorough refugee claim. It may be 7.1.3 Foundations of effective counselling to deal with experiences of torture case management or trauma. Information gathered throughout Case management builds on the foundations the assessment process is therefore consid- of: ered and analysed, goals set, prioritised and action plans put in place. The case manager Æ Early intervention and individual together develop a detailed Æ Face-to-face, one-on-one contact case plan, outlining necessary steps to reach Æ Regular assessment and review goals, suggested timeframes, and persons Æ Confdentiality and information responsible. Consideration and planning management for practical necessities such as housing, Æ Consulting key stakeholders health care, livelihood, social support needs, reporting requirements and logistics is critical. Æ Trust, building rapport, consistent relationships and information provision Æ Explore all available options to empower 4. Intervention individuals to make decisions The agreed case plan is implemented, and Æ Clear roles and expectations should ensure communication, education, Æ Resources and options for individuals as advocacy and facilitation of appropriate needed service involvement, assisting individuals to maintain a link to immigration authorities. Full 7.1.4 Implementing case management engagement with the individual and all key stakeholders is critical in resolving immigra- Case management is implemented in a tion cases and supporting vulnerable indi- number of ways, ranging from ‘triage’ systems viduals: facilitating regular case conferences designed to deal with large numbers to can be a productive intervention. Using the intensive, individual casework with complex ongoing relationship between case manager cases. Many migrants will be able to work to

50 THERE ARE ALTERNATIVES (REVISED EDITION)

case resolution independently without the prior to decisions to detain or remove. Case need for additional support. However, individ- managers may provide training and advice uals with high level needs or complex circum- to enforcement and compliance units, and/ stances may require more intensive case or maintain oversight of individual health and management. Caseloads will vary depending wellbeing within these programs. Several on assessed need and complexity. Reassess- countries have introduced national case ments are undertaken by case managers management programs after frst piloting at critical points, such as decisions on the the approach at a small scale, including migration or asylum case, at a fnal refusal and Australia (Box 16) and Belgium (Box 18).

BOX 15 CASE MANAGEMENT IN THE MIGRATION CONTEXT TWO CASE STUDIES

Case study 1: Case management with families pending removal

Cecilia is a mother with sons placed in the open family units order to come and work legally aged seven and 16. described in Box 18, pend- in Belgium. The case manager ing their removal. Cecilia was ensured Cecilia knew how to Cecilia is a mother with sons initially assessed as a risk to apply for a visa from Brazil aged seven and 16.225 She abscond, as she was adamant and engaged the International came to Belgium from Brazil on staying in Belgium. Organization for Migration to without documents to join her work with Cecilia to explore sister. After fve years in Bel- Cecilia’s case manager sought possibilities for the family’s gium, Cecilia was detained and legal advice to ensure all return. sent back to Brazil. However, a her options to remain in the month later she made her way country legally had been fully Through this process, Cecilia back to Belgium. Cecilia was explored. The legal advisor fnally agreed to return inde- refused legal residential status suggested Cecilia return to pendently to Brazil with her and she and her children were Brazil and apply for a visa in family.

Case study 2: Case management and case resolution

Ravi came to Australia as his fears and expectations options. He was also referred a student, later lodging around the right to remain in to a counsellor for additional an application for asylum Australia. Whilst Ravi did hold support. based on fear of reprisal for some fears related to his safe- During this time, Ravi managed his involvement in student ty, he also had an overwhelm- to save some money so that he 226 ing sense of shame of facing politics in India. Ravi was would not be destitute on ar- his family without savings. found not to have protection rival. On receiving legal advice Ravi’s case manager sought concerns and, following a that he had no further grounds independent legal advice to re- failed appeal, was required to to remain, the case manager view Ravi’s case and outline his depart Australia. Ravi refused explored his return options realistic chances of remaining to depart, citing his ongoing with him. Ravi consequently in Australia. The case manager fear, and threatened suicide departed Australia indepen- also negotiated an additional should he be forced to return. dently. three months, with work rights, Ravi’s case manager explored while Ravi explored these

51 THERE ARE ALTERNATIVES (REVISED EDITION)

7.2 Case resolution issues, the case becoming stalled due to a bureaucratic issue (such as when there is Case resolution is not the same as case no standard policy to deal with people who management, although they often overlap. are stateless), severe client vulnerability or Case resolution is focused on fnding a due to challenges in achieving departure. permanent or temporary migration outcome. Intensive case resolution work can be used While this responsibility ultimately sits with as a mechanism to assist in resolving an indi- immigration authorities, case managers can vidual’s migration status while they remain contribute to timely case resolution by iden- in the community. Allocating extra resources tifying legal, practical and personal barriers to complex cases identifed through the to likely outcomes and working on shared screening and assessment process can assist in solutions. Case resolution can draw from a resolving a case while an individual remains in range of solutions including various visa and a community setting. The intensive case reso- departure options. Examples of case resolution strategies included in this report are: lution options are provided below and in Box 15 Case studies, Box 19 Options for Æ Case resolution for complex cases those who cannot be deported and Box Æ Preparing for departure 20 Protecting victims of traffcking.227 7.2.1 Case resolution for complex cases The following sections focus in particular on the challenges of resolving complex cases In complex cases, individuals are less able and on preparing migrants for departure. to focus on resolving their migration status Some migration cases require extra work to due to multiple and complex issues that achieve resolution due to complex migration demand their attention and engage their time

BOX 16 INTENSIVE CASE RESOLUTION WITH COMPLEX CASES AUSTRALIA

In Australia, vulnerable mi- accommodation and case independently, 37 people grants with complex needs management.228 (7%) absconded, 33 people are referred to the Status (6%) were removed by the This service is built on an Resolution Support Services Department and six people original pilot program with (SRSS). As of October 2014, (1%) died.229 This equates to a group of clients with high- the SRSS replaced four a 93% compliance rate and a level welfare needs and an previous support programs. 60% rate of independent de- average of more than six The SRSS is designed to parture amongst refused ap- years in Australia. Despite provide extra support to plicants. The program cost a these barriers, the pilot individuals as they engage minimum of AU$38 per day achieved signifcant out- with immigration authorities. compared with a minimum of comes. Of 918 people assist- The guiding principles of the AU$125 for detention.230 The ed between March 2006 and SRSS are to involve clients in government has found that: January 2009, 560 people identifying and addressing “[d]rawing on appropriate (61%) had a fnal outcome. their own needs and building services and focusing on ad- Of this group, 370 people on their own strengths. The dressing barriers is proving (66%) received a temporary three broad areas of service a successful mix for achiev- or permanent visa to remain, provision are orientation, ing sustainable immigration 114 people (20%) departed outcomes.”231

52 THERE ARE ALTERNATIVES (REVISED EDITION)

and energy. Complex cases vary widely but process, rather than being introduced after many involve issues of vulnerability (such a period allowing for independent departure as serious illness or trauma), an inability to has elapsed without any support (see Box meet basic needs (resulting in homeless- 17 the Netherlands and Box 21 Sweden). ness and destitution), risk of self-harm or suicidal ideation, or diffculties in departing In addition to providing practical support, such the country. Providing extra resources to programs can encourage individuals to exit work with individuals to address the variety of the country independently by highlighting the issues affecting their migration situation can benefts of legal return, as opposed to having be an effective way of dealing with barriers to to contend with the stigma of deportation and case resolution, as seen in Box 16 Australia. exclusion from future return to the country. The effectiveness of such ‘return counselling’ is likely to depend on the individual’s situation 7.2.2 Preparing for departure and their trust in their caseworkers. One US For individuals found to have no legal basis study, described in Box 24 found that departure to remain, return preparation and coun- planning particularly increased appearance selling programs have been an effective and independent departure for undocumented mechanism to support and facilitate inde- migrants and criminal non-citizens, as these pendent or voluntary departure without the groups wanted to be able to legally re-enter the need for detention and deportation. Return country in the future. In addition to other mech- preparation and counselling programs can be anisms, the program supported independent effective if a strong case management model departure by obtaining travel documents, allows workers to respond to the whole of the buying tickets, explaining how to confrm person’s context and to ensure that the indi- departure with the authorities and retrieve any vidual has explored all options to remain in bond deposit after departure.234 Similarly, the the country legally (see Box 18 Belgium). ‘Failed Refugee Project’ in Ontario, Canada provided return counselling and fnancial States are increasingly choosing to incorpo- support to asylum seekers who had exhausted rate voluntary return into migration govern- all avenues of appeal. This project success- ance systems. There are a number of programs fully effected removals without resorting to designed to support a person to prepare for detention in 60% of cases within the 30 day voluntary or independent departure while they period for departure.235 As seen in the Case remain in the community, including the Assisted Study 2 (Box 15), securing short term work Voluntary Return and Reintegration (AVRR) rights can be integral to enabling independent programs run by the International Organiza- return. Contrasted against this, prolonged tion for Migration.232 These programs include detention or unnecessary detention pending pre-departure assistance, return/transit assis- removal has been found in some contexts to tance and post-return support for reception be counterproductive to government objec- and reintegration. This practical support can tives of achieving compliance with immigration include organising and paying for fights, outcomes, including returns (see Section 1.3.2). making contact with families or friends, and planning for life on return. Such programs Refused asylum seekers may have powerful are extremely useful for migrants who wish reasons to fear return which are not allayed to return but fnd themselves stranded for by standard reintegration support packages, reasons such as a lack of fnances or lack travel and particular care must be taken when documents. Assisted return programs appear working with this group.236 Individual assess- to be more effective at achieving independent ment and case management can assist departure when integrated with case manage- authorities in determining the best pathway ment throughout the migration assessment to return for these different populations.

53 THERE ARE ALTERNATIVES (REVISED EDITION)

Resolving migration status

The resolution of a migration case takes many forms. Case resolution ranges from regularisation, protection and other humanitarian interventions, other permanent migration solutions (such as family reunifcation, marriage), medium term options (such as study or temporary work), short-term provisional visas, departure to a third country, departure with a plan for lawful re-entry, return to a different area of the country of citizenship, assisted voluntary return and other departure options.

BOX 17 MAKING PLANS FOR LIFE AFTER RETURN THE NETHERLANDS

In the Netherlands, an NGO- and help them to identify The program is mainly run programme assists per- and overcome obstacles government funded. It costs sons who have been issued to return. The program 6,000 EUR to assist an with a deportation order or focuses on empowerment individual to return (includ- have overstayed their visa and restoring the independ- ing all associated costs) – the to return to their country of ence of participants by equivalent of 30 days in origin.233 The program, which building up the skills and immigration detention. The runs for a minimum of 13 confdence necessary for program acts as an alterna- weeks, is based on the prem- return. The program includes tive to detention because ise that people should be business and skills training, the government undertakes empowered to prepare for some assistance to meet that participants will not be departure from the Nether- basic needs, and referrals detained and, in some cases, lands, and that the coercive to psychosocial services people are released from de- environment of detention is where required. Participants tention to participate in the not conducive to overcom- develop a plan to establish a program. As of September ing real or perceived barriers new business upon returning 2014, over half the people to return. to their country of origin and enrolled in the program had receive fnancial support to returned to their countries Coaches, or caseworkers, implement this upon return. build trust with individuals

54 THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 18 PREPARING FAMILIES FOR INDEPENDENT DEPARTURE BELGIUM

Belgium237 has open housing Belgian Immigration Depart- immigration processes.239 facilities for families who ment. These coaches are, There has been a high rate have to leave the country, in effect, case managers of voluntary return and low who apply for asylum at the responsible for providing rates of absconding: from border, or who fall under the holistic, tailored support October 2008 to August Dublin Regulations.238 These through intensive casework. 2011, 217 families (including housing facilities are located They review the family’s fle, 396 children) were housed in close proximity to public explore all options to remain at the units.240 Of this group, transportation, schools and in the country legally, seek 88 families returned to their shops. Usually, each family is legal advice if required, make countries of origin or were allocated its own unit. Build- practical arrangements for removed to a third country ings are not locked and there the journey and work with under the Dublin Regula- are no security staff. The the family to accept and tions. Almost all of these families receive a weekly al- prepare for return. Case (80) departed indepen- lowance, food vouchers and managers cultivate rapport dently, with only eight forced non-food items. Children can and encourage families to returns. Of the remaining 129 attend schools in the local share their full story in order families, 69 were released area and families have ac- to realistically consider all and 48 absconded (usually cess to physical and mental future options. within fve days of arrival).241 health services if required. The average length of stay Since the project began, the was 24 days.242 Each family is assigned a majority of families (70% ‘coach’ employed by the to 80%) have remained in

55 THERE ARE ALTERNATIVES (REVISED EDITION)

FACILITATING LAWFUL STATUS THE UNITED STATES

The United States established the T Non-Immigrant Status (the “T Visa”) for non-citizens who are survivors of severe forms of human traffcking.243 It extends protection to such individuals, and allows them to remain in the country to assist in an investigation or prosecution of human traffcking. The T Visa begins as a temporary four-year visa. After three years of holding T non-immigrant status, the non-citizen can apply for permanent residency. T Visa holders are given work rights and are eligible for the same federally- funded benefts and services as refugees. Further, T Visa holders have some access to family reunifcation, in order to protect family members at risk of reprisals by traffckers.244

FACILITATING LAWFUL STATUS MOROCCO

Morocco hosts between 10,000 to 20,000 undocumented migrants from Sub-Saharan African nations. In September 2013, King Muhammad VI announced that some undocumented migrants would be ‘regularised’ and given permission to work in the country legally.248 This limited scheme resulted in approximately 18,000 one-year residency permits being granted to undocumented migrants in the country.249

FACILITATING LAWFUL STATUS ARGENTINA

Argentina has pursued a strong regularisation and legalisation strategy for managing its substantial population of immigrants, most of whom originate from countries in the region.245 It provides residence to any citizen of a Mercado Comun del Sur country (which includes all South American states) who does not have a criminal record. It has also legislated to provide temporary residence permits for people who are not be able to return to their country of origin because of a natural or environmental disaster.246 Further, between 2007 and 2010, Argentina implemented the “Patria Grande” regularisation programme. This granted temporary or permanent residence to 560,131 people, thus contributing to a decrease in unemployment and poverty.247 Legal migration has been seen to beneft the economy and so irregular migration has largely been redirected into the formal market through regularisation.

56 THERE ARE ALTERNATIVES (REVISED EDITION)

FACILITATING LAWFUL STATUS SWEDEN

Sweden conducted a regularisation program between November 2005 and March 2006, targeting individuals who had been issued with fnal removal orders. This was initiated in part due to heightened media attention over children from undocumented families who were experiencing severe psychological problems caused by their irregular status. A total of 31,120 applications for residence permits were processed, of which 17,406 were granted. These were mostly issued to families with small children and migrants who had been issued removal orders but could not be returned to their country. Factors such as length of stay in Sweden, situation in their country of origin, criminal history and social and health circumstances were taken into consideration.251

FACILITATING LAWFUL STATUS BELGIUM

Belgium launched a program in 2009 to regularise migrants who had been residing in the country for at least fve years. Applications were received between 15 September and 15 December 2009. Applicants had to demonstrate integration into Belgian society (through language skills, attendance at literary courses or having children who were enrolled in Belgian schools). The regularisation program also offered permanent regularisation to asylum seekers whose applications had been pending for more than three years, and who could produce an employment contract and regional labour card. Through this program, 11,016 regularisation applications were granted.250

57 THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 19 OPTIONS FOR THOSE WHO CANNOT BE DEPORTED VARIOUS COUNTRIES

See also Box 26. issued with a document called In the United States, individu- a Duldung. This certifes that als from certain countries that Hungary – Under Act II of the individual is obliged to have experienced devastating 2007, a residence permit can leave the territory, but cannot natural disasters, civil war or be issued on humanitarian do so at present. A Duldung other conditions that tempo- grounds to persons who have can be granted for a variety of rarily prevent their citizens been granted “exile” status, reasons, including adminis- from returning safely, may or tolerated stay.252 Residence trative obstacles prevent- be able to obtain Temporary permits are issued for one ing travel, such as a lack of Protected Status (TPS). A year and may be renewed passport, or confict in the TPS provides the holder with for further one-year periods. country of origin. After a year, temporary permission to Those with ‘exile’ status are Duldung holders have limited remain in the US, and also entitled to social assistance work rights and receive basic provides temporary work including accommodation social assistance, at 40% be- authorisation. Once granted or rental support, medical low unemployment benefts TPS, an individual cannot be services, education assis- for German nationals. They detained and is not removable tance, and fnancial support are required to live in desig- during the designated period. to depart the country when nated areas (to distribute the In order to qualify for TPS, an possible.253 social welfare load across the individual must prove that s/ Germany - Unreturnable Länder), and require permis- he is a national of a current migrants in Germany are sion to travel. TPS designated country and granted tolerated status, and has been in the US since a specifed date.

BOX 20 PROTECTING VICTIMS OF TRAFFICKING EUROPE

A refection period is “a The Council of Europe Con- judicial proceedings, (b) has period of time in which the vention on Action against shown a clear intention to traffcked persons can con- Traffcking in Human Beings cooperate, (c) has severed all sider their options in a safe includes a mandatory 30 day relations with the traffckers; environment, without risk refection period, irrespec- and (d) would pose no risk of being removed from the tive of whether the person to public order, policy or se- country.”254 Granting a refec- is cooperating with the curity. Holders of residence tion period to survivors of prosecuting authorities. It permits should be able to traffcking is recognised as also provides for renewable access standards of living a best practice and measure residence permits, valid for capable of subsistence, ac- that not only helps to protect at least six months. Under cess to emergency medical the rights of traffcked sur- Article 8 of the Directive, treatment, translation and vivors, but also encourages residence permits may be is- interpreting services, and if survivors to cooperate with sued if the person(a) is nec- provided for by national law, authorities in the prosecu- essary for the investigation psychological services and tion of traffckers.255 of the traffcking offence or free legal aid.

58 THERE ARE ALTERNATIVES (REVISED EDITION)

8. Placement Options

There are various placement options available 8.1 Community without conditions to a State in supporting and managing an indi- If screening and assessment demon- vidual, pending case resolution. Placement strate that there are no legitimate grounds in the community without conditions – or for detention, then liberty is the frst and with liberty – is the preferred option in the preferred placement option. Placement in majority of cases. Placement in the community the community without conditions or restric- with conditions is used as necessary and tions upholds an individual’s right to liberty proportionate after individual screening and freedom of movement. Such placement and assessment has identifed concerns. is underpinned and supported by the Finally, immigration detention may be used minimum standards described in Section 5. as a measure of last resort in exceptional circumstances, provided the standards of Open accommodation centres and reception necessity, reasonableness and proportion- centres are one example of such placement ality have been met in the individual case. options. Such centres may be dormi-

59 THERE ARE ALTERNATIVES (REVISED EDITION)

tory-style living with mess hall kitchens Æ Foster homes or orphanages (such as used and communal facilities or a more inde- with children who are citizens) pendent style of living in self-contained Æ Shelters for destitute, irregular migrants fats with self-catering. Residents can Æ Homeless shelters or transitional housing come and go as they like, but may need to for the homeless meet with immigration to progress their Æ Centres for migrants preparing to depart migration case. Such institutional models the country often provide space on-site for relevant services such as legal advice or counselling. 8.1.2 Minimum supports and requirements

Some countries tend not to use the insti- As discussed in Section 5, minimum standards tutional or cluster housing models but underpin these placement options. The instead disperse individuals throughout provision of minimum standards looks different the local community. This may be in country to country. In some countries all community or religious group housing, basic needs are met through the institu- in NGO-run shelters, with friends or tional setting, while in others basic needs are family or in private rental properties. provided by NGOs with or without government funding. A number of countries allow work Many countries operate specialist housing rights for asylum seekers and other migrants for vulnerable individuals such as traffcked awaiting a decision in their case. This reduces persons, people with physical or mental the economic burden on governments and illness, and single mothers. A number of increases the ability of the individual to self- countries place unaccompanied minors into sustain and cope during the process, in turn the mainstream child protection system. improving integration (if approved) or reintegration and return with dignity (if refused). 8.1.1 Accommodation options For many placed in the community, there Despite the importance of developing a will be no need for conditions or restric- holistic approach to alternatives, there is tions. However most individuals in the often particular interest and concern about community may be required to undertake where people will live if they remain in the a number of minimal requirements to community. Accommodation can include: ensure they remain active in the system Æ Private accommodation and achieve case resolution, including to: Living with immediate family, friends or Æ Æ Appear at appointments, hearings or relatives interviews Living with members of the host Æ Æ Undertake acts to assist case resolution community Æ Respect visa or residency status conditions Æ Government-funded housing Æ Private housing funded by charities Such requirements are differentiated from Æ Open reception centres for asylum seekers conditions or restrictions, as the latter are more onerous and impact on a person’s right Æ Open centres for recognised refugees to liberty and freedom of movement. It is Æ Open refugee camps important to note, however, that minimal Shelters run as part of humanitarian aid Æ requirements may become conditions or Æ Shelters for unaccompanied children or restrictions, or applied as such, depending separated children on the individual case. For example, in some countries individuals who fail to appear at

60 THERE ARE ALTERNATIVES (REVISED EDITION)

immigration appointments or to undertake Individuals may also be required to present certain acts to assist in achieving case reso- further evidence in support of their migration lution may be automatically deemed to not claims by a certain date, such as to produce be in compliance with their immigration obli- documents or identify witnesses. They may gations and subject to more onerous condi- also be required to take steps in prepa- tions. Meanwhile, requiring an individual to ration for return, such as applying for a participate in high frequency meetings with passport or other travel document or their caseworker could amount to a condition purchasing tickets to leave the country, as or restriction if unnecessary and dispropor- seen in Box 16 Australia, Box 17 the Nether- tionate to the individual’s circumstances. lands, Box 18 Belgium and Box 21 Sweden.

Appear at appointments, hearings or Respect visa or residency status requirements interviews Individuals may also be obliged to respect When placed in the community, an individual the requirements imposed on them by the may be required to appear at set appoint- short-term visa or other temporary status ments, hearings or offcial interviews with issued. These can sometimes place limita- caseworkers or immigration authorities tions on a person’s participation in the struc- regarding their visa application or migration tures of society, such as limitations on access status. This assists in progressing the migration to social welfare benefts, public healthcare or matter and working towards case resolution. employment. However, there is no evidence Attendance at such appointments, hearings that such limitations encourage case resolu- or interviews can also be used as an oppor- tion or compliance. Instead, as described in tunity to conduct a follow-up assessment of Sections 2.4.1 and 5.2, the ability to meet basic an individual’s placement and whether addi- needs contributes to case resolution from tional supports are required to manage him community settings. Another requirement or her in the community.256 They can also be may be that the visa holder is not permitted used to re-evaluate the conditions of release in to leave the country without permission. the community should a negative decision on a visa application or other status be received. See Box 10 Canada, Box 14 Hong Kong, Box 16 Australia, and Box 21 Sweden for examples.

Undertake acts to achieve case resolution

An individual may be required to undertake acts to assist in achieving case resolution. As seen in Box 1 Argentina, individuals may be required to explore all options to regularise their status within a set deadline. Similarly in Brazil, the frst measure of response to an immigration infraction is to order an individual to leave the country, regularise his or her status within a certain period of time and/or to pay a fne.257

61 THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 21 RECEPTION IN THE COMMUNITY SWEDEN

In Sweden, asylum seekers medical and dental proce- tary repatriation, escort by are taken to an open recep- dures are provided at low caseworkers or transfer to tion centre where they are cost, about SEK50 (approxi- the authority of the police registered and screened mately USD8). Like Swedish (forced return). Incentives for health or other support children, asylum-seeking are provided to those who needs. They are registered children are entitled to free opt for voluntarily repatria- on arrival and issued with a medical coverage. Asylum tion, including fnancial as- plastic photo identity card. seekers can request the sistance, and travel arranged This is used by immigra- assistance of a lawyer, who by the caseworker and paid tion to track the case and is appointed and paid for for by the Swedish Migra- used by the asylum seeker by the Swedish Migration tion Board.259 Where there is to access services in the Board. Asylum seekers who no risk of absconding, failed community.258 A caseworker can prove their identity, or asylum seekers are given explains the Refugee Status who are cooperating with between 14 and 30 calendar Determination process and authorities to establish their days to leave the country their rights and entitlements identity, are entitled to work. independently. In 2012, 68% in Sweden. of third country nation- Asylum seekers have regular als ordered to leave the After several weeks, asylum meetings with caseworkers country departed voluntar- seekers are transferred to a appointed by the Swedish ily or through an Assisted regional area and housed in Migration Board. Casework- Voluntary Return program.260 fats and apartments close to ers can refer clients for Those who do not cooperate a Swedish Migration Board medical care, counselling with independent departure reception offce. Asylum or other services where options can have conditions seekers can live indepen- required. They also provide introduced including report- dently if they can pay their “motivational counselling” to ing requirements or reduced own rent. Asylum seekers prepare the asylum seeker benefts.261 As seen in Box 27 are provided with a daily for all possible immigration , detention is only applied as allowance of up to SEK71 outcomes, and assess the a last resort during deporta- (approximately USD11) for risk of absconding due to a tion procedures in conditions single adults (less for adults negative asylum decision. that support dignity and sharing accommodation, There are three options on wellbeing. and children). Emergency negative decisions: volun-

62 THERE ARE ALTERNATIVES (REVISED EDITION)

Hosting transit migrants

Countries that host large numbers of non- Understanding these motivating factors citizens intending to transit within undoc- and identifying the likelihood that some umented mixed migration experience migrants will remain in the system while particular pressures and challenges.262 awaiting an outcome assists in determining Governments of preferred destinations are appropriate placement options, including increasingly working to thwart the journeys shelters for children, victims of crime and of those intending to reach their territory. traffcking and vulnerable groups and However, migrants excluded from legal reception centres for asylum seekers. migration options and from full participation in local society are likely to accept greater risks to resolve their situation.264 There is evidence that Indeed, strict control measures do not migrants are less likely resolve the factors motivating migration. to abscond in a country Increased use of detention and other forms of enforcement increases the likelihood they intend to transit migrants will avoid authorities entirely, if they can: meet their participate in unregulated or illegal activity or accept greater risks to continue the basic needs through journey.265 One study in Libya concluded: legal avenues; are not The absence of a humane and orderly at risk of detention or framework for handling migration fows refoulement, and remain in Libya is no doubt a contributing factor to the ever increasing numbers of hopeful regarding migrants, asylum seekers and refugees future prospects. willing to risk their lives in the Mediter- ranean to reach the safety of Europe.266 In most instances, these transit community While secondary movement cannot always models retain the right to freedom of be prevented, a range of strategies can movement in the community; in some be utilised by States to better under- contexts, migrants are required to reside in stand, respond to and manage such mixed specifc towns (Box 13 Turkey) or to not enter migration. In the frst instance, screening border areas (airport or seaport) without and assessment assists in understanding permission (Indonesia).267 Conditions, such factors driving migrant journeys. As shown as reporting, are only applied as needed. The in Section 6, all governments beneft from principles of case management and informa- understanding these factors to ensure tion about available options remains central, placement decisions are well informed and as seen in reduced levels of absconding in address identifed concerns. For example, Thailand and Indonesia (Section 2.4.1). people who are migrating due to persecution, systemic violence or extreme poverty are seeking different outcomes to those who are seeking to reunite with family.

63 THERE ARE ALTERNATIVES (REVISED EDITION)

Asylum seekers, refugees and migrants international system of burden sharing, are less likely to abscond in a country including transnational cooperation and they intend to transit if they can: regional solutions. The government of the United States recently announced a major Æ Meet their basic needs through funding initiative to address the root causes legal avenues of irregular migration by unaccompanied Æ Are not at risk of detention children. The program aims to support the or refoulement, and security, good governance and economic Remain hopeful regarding Æ prosperity of countries in the Northern future prospects.268 Triangle. As the Vice President, Joe Biden, Examples of alternatives in countries stated in his announcement of the plan, “the hosting large numbers of transit migrants cost of investing now in a secure and pros- include Box 2 Poland and Croatia, Box 7 perous Central America is modest compared Hungary, Box 5 Panama, Indonesia, Israel with the costs of letting violence and poverty 269 and Malta, Box 8 Spain, Box 9 Romania, Box fester.” Such a response reframes issues of 13 Turkey, Box 19 Hungary, Box 22 Greece, irregular migration as an issue of international Box 23 Slovenia and Box 26 Mexico. development and security. Detention does not effectively reduce mixed migration. Ulti- Notwithstanding these strategies, complete mately, managing undocumented migrants control in all cases is unrealistic. Effective in transit requires understanding moti- solutions include proactive, preventative vating factors to determine fair, timely and mechanisms that address the root causes humane national responses, and for broader of migration and that build a stronger regional dialogue on longer-term solutions.

BOX 22 CLOSING DETENTION CENTRES IN FAVOUR OF ALTERNATIVES GREECE

The Greek government Minister stated “Detention Æ The immediate release started releasing people centres – we’re fnished with and referral to accom- from detention in Febru- them … I’m here to express modation facilities of ary 2015 as part of a policy my shame, not as a minister vulnerable groups, of more humane treatment but as a human being … I including unaccompa- of migrants.270 For over ten couldn’t believe what I saw. nied minors years, Greece had system- I really could not believe Æ The release of registered atically detained refugees, it. This must change and it asylum seekers whose asylum seekers and migrants must change immediately.”271 detention exceeds six who entered the country The announced policy months irregularly, garnering heavy changes include: criticism for falling short Æ The immediate imple- of international minimum Æ The immediate mentation of measures standards. revocation of the to substantially improve Ministerial Decision detention conditions After visiting the notori- allowing for the prolon- Æ The use of alternative ous Amygdaleza detention gation of detention measures to detention272 centre, the Deputy Interior beyond 18 months

64 THERE ARE ALTERNATIVES (REVISED EDITION)

8.2 Conditions or limited restrictions decision may lead to an increase in condi- in the community, with review tions or restrictions. Conversely, it is often appropriate to decrease the level or type of The foundation provided through minimum conditions for an individual who is working standards – including formal status and well with authorities. It is important that the documentation, legal advice, basic needs application of conditions is independently and fundamental rights – create a strong monitored to ensure that any conditions or context from which individuals can partici- restrictions are applied in limited circum- pate in the administrative procedures associ- stances and only when necessary.274 For ated with achieving case resolution. Satisfac- example, Venezuela maintains a 30-day time tory outcomes can often be achieved without limit on the use of any conditions imposed extra conditions or restrictions being imposed. to implement a deportation order.275 However, for those individuals with a It should be noted that the undue applica- history of non-compliance or where tion of additional conditions or restrictions can there are other serious concerns identi- increase the costs of community management fed through the screening and assessment programs unnecessarily while also decreasing process, there are a range of conditions effciency. Compliance issues may arise when or restrictions that may promote compli- conditions or restrictions create an unmanage- ance without undue restrictions on liberty able or unfair burden for the individual. For or freedom of movement. Unfortunately, instance, in-person reporting can be overly there is very limited data available docu- onerous if it requires lengthy or expensive menting the specifc levels of effectiveness travel, if it regularly disrupts legal employ- of each of these conditions or restrictions.273 ment or if is required of those responsible for The data that is available has been noted. caring for children or the sick. Such condi- Conditions or restrictions may include tions sometimes lead to non-compliance, the following: even when the individual is willing to remain in contact with authorities. If such require- Æ Monitoring ments are too onerous, or is required at high Æ Supervision levels over long periods of time, compli- Æ Surety and other consequences ance can be inadvertently compromised. for non-compliance

Many alternatives integrate a number of these 8.2.1 Monitoring mechanisms – together with the minimum Authorities often make use of monitoring standards of legal advice, basic needs, legal mechanisms to ensure that irregular migrants status and documentation and case manage- remain in contact with authorities and can ment – to create effective management be located to participate in the progress of programs in a community context. As detailed their migration case as required.276 Moni- in Regular review of placement decisions, toring mechanisms are designed to establish ongoing and regular assessments should be and maintain a line of communication and conducted to re-negotiate or amend the use to keep track of an individual’s wherea- of conditions and restrictions as a person’s bouts. Monitoring differs from supervision or circumstances change, to make sure they case management in that it does not provide are not unnecessary or disproportional. For opportunities to communicate or to respond instance, reassessment of a case due to to substantial matters such as changes in non-compliance or a negative visa or status

65 THERE ARE ALTERNATIVES (REVISED EDITION)

a person’s situation or concerns regarding al’s travel documents, such as a passport, compliance. Monitoring mechanisms include: until migration matters are resolved. This is seen as an effective strategy to reduce the Æ Registration with authorities use of asylum processes to gain entry to a Æ Nominated address territory to work unlawfully for short periods Handover of travel documents Æ of time.279 Authorities must ensure that such Æ Reporting requirements documents are kept in secure locations and Æ Directed residence can be retrieved by the individual should they decide to depart the country volun- Registration with authorities tarily. In addition, appropriate documentation needs to be issued as a replacement so Registration provides authorities with a central that the individual can continue with everyday database of all relevant cases and is often activities that require identifcation and to closely linked with the issuing of documenta- protect them from unnecessary detention. tion. This strategy is well established in many This strategy is used in several countries countries, however its use is still growing in including Hungary,280 Austria,281 Jordan, Box some regions. For instance, the use of registra- 2 Poland and Croatia and Box 25 Canada. tion processes for asylum seekers and refugees in Uganda, Zambia and Kenya has resulted in fewer people being detained unnecessarily.277 Reporting requirements An obligation to report regularly to authori- Nominated address ties is the most common condition identifed. Reporting acts as a monitoring mechanism Providing a nominated address is used by by ensuring the individual remains known different governments for different reasons. to and in contact with authorities. In-person Some governments use this mechanism reporting requires the individual to present largely to ensure that the applicant will themselves at set intervals at a nominated receive all offcial communication about location (such as an immigration offce, the progression of the case. Other govern- police station or contracted agency). They ments use a registered address to monitor are often then required to sign a register movement and ensure the individual can be documenting their presence. Telephone located by authorities in the community.278 reporting requires the individual to call a The address that can be registered depends particular number at set times (sometimes on these different purposes: it may be the from a set telephone number) and to record personal, residential address of the indi- a statement, which is subsequently verifed vidual (including that of an accommoda- using voice recognition technology.282 tion facility) or it may be another address, such as that of the person’s legal counsel. The In many contexts, authorities or the courts requirement to provide a nominated or regis- have the discretion to decide the frequency tered address is used in Box 25 Canada. of reporting. Screening and ongoing assessment will assist authorities to determine appro- Handover of travel documents priate reporting requirements, and reduce the expense and impact of unnecessary or When an individual is assessed as a high risk overly onerous reporting obligations. Personal of transit or absconding, authorities may circumstances should be taken into account decide to take possession of the individu- when determining this condition. Individuals

66 THERE ARE ALTERNATIVES (REVISED EDITION)

with vulnerabilities (such as illness, disability Directed residence or pregnancy) should be offered modifed Some governments direct individuals to live in measures such as telephone reporting or less certain locations, leading to a de facto form of frequent, in-person reporting. Other relevant monitoring. For example, migrants who require factors may include distance to be travelled, shelter may be directed to live at a particular transportation available, caring obligations migrant accommodation centre. In addition to and employment schedule. The frequency of establishing a known address, such accom- reporting should be reviewed and modifed, as modation centres sometimes fulfl additional circumstances require. For instance, if a date monitoring activities by reporting absentee of departure is approaching, greater frequency residents to immigration authorities. Further, may be necessary. On the other hand, once some centres have immigration offcers or the individual has established trust by fulflling case managers located on-site, increasing initial reporting requirements, less onerous contact with migration authorities. Other reporting conditions can be introduced.283 countries direct individuals to live in a certain Unnecessary reporting requirements erode region or district within the country. This is trust in the system and wastes resources.284 usually designed to distribute the burden of social welfare across regional or local govern- De facto reporting occurs when the indi- ment areas. Examples of directed residence vidual can only renew a temporary residency can be found in Box 2 Poland and Croatia, Box status or obtain food vouchers or other 8 Spain, Box 13 Turkey and Box 18 Belgium. goods in person; however, this only contributes to monitoring if a lack of appearance is reported to authorities. Failure to attend should not deprive an individual of his or her allocations. Some of the countries that use reporting include Box 13 Turkey, Box 14 Hong Kong and Box 10 Canada, as well as Box 23 Slovenia, United States, Sweden and the United Kingdom.

67 THERE ARE ALTERNATIVES (REVISED EDITION)

8.2.2 Supervision Supervision by migration authorities

Supervision involves a substantial commitment Intensive supervision is used by migration to directly monitor, evaluate and respond to an authorities to directly observe an individual’s individual’s compliance with their undertak- location and activities. Intensive supervision ings and monitoring activities. Supervision is substantially increases the level of commu- a separate function to case management due nication and contact between authorities to its focus on compliance and case resolu- and an individual through telephone calls, tion. It is more active than monitoring, as it meetings and home visits. This intensive work provides the offcer with authority to respond is designed to establish and verify informa- to changes in circumstances or deal with tion, such as whether the person is actually compliance issues. Supervision can involve: living at the address provided. Supervi- sion provides authorities with the informa- Æ Supervision by migration authorities tion required to make decisions about case Æ Delegated supervision management or case resolution, including appropriate pathways for those facing return. Intensive supervision programs

BOX 23 REPORTING AS A MONITORING MECHANISM VARIOUS COUNTRIES

Slovenia – Third country na- and registers them as having to report leads to a follow up tionals subject to a deporta- reported.286 assessment; it does not au- tion order may be required tomatically lead to detention. Sweden – Individuals subject to report to the nearest If the assessment identifes to a supervision order (a police station instead of be- a high risk of absconding, a combination of reporting ing placed in detention.285 In- decision to detain may be and a surrender of docu- dividuals are usually required taken. ments) are obliged to report to report once per month. to the nearest police station United Kingdom - Asylum United States – The United or the Swedish Migration seekers and irregular mi- States uses both telephone Board on a regular basis. grants are regularly required and in-person reporting. The There is no standardised to report either to local telephonic reporting voice procedure regarding its Home Offce offces or, more verifcation program makes application; instead, the rarely, to police stations. automated calls to partici- frequency of reporting is de- Reporting requirements and pants at periodic intervals, termined on a case-by-case conditions are regulated in requiring them to call back basis. Reporting frequen- the UK Home Offce Guid- within a certain timeframe. cies usually range from once ance “Reporting – Standards When the call is returned, a week to once every two of Operational Practice”. The the computer compares the weeks. However, they can be frequency of reporting varies caller’s voice against the reg- every day if an individual is considerably, usually from istered biometric voiceprint determined to pose a high every day to once a month. risk of absconding. Failure

68 THERE ARE ALTERNATIVES (REVISED EDITION)

appear to be most successful when estab- willing to undertake supervision responsibili- lished in conjunction with case management, ties as part of a broader support program, legal support, basic needs and documenta- particularly if it is a condition of release tion, as seen in Box 24 the United States. from detention. When family members or community groups commit their funds through a guarantor or bail program (see Delegated supervision Section 8.2.3 Bail, bond, surety or guarantee) Immigration authorities sometimes delegate this may result in an informal form of super- supervision tasks by authorising another vision, as they take on some of the conse- organisation or individual to supervise the quences for non-compliance. Delegated compliance of irregular migrants with the supervision can be seen in Box 10 Canada. conditions of their release. Non-government organisations have sometimes been

BOX 24 SUPERVISION DURING REMOVAL PROCEEDINGS THE UNITED STATES

In the United States, the Vera sion were required to have a mented workers with little Institute for Justice was con- guarantor, such as a relative, chance of winning their mi- tracted by the government who agreed to take moral gration case in supervision: to undertake a three year responsibility for the person 88% of this group appeared test of community supervi- to fulfl their obligations.288 at all hearings when super- sion for people in immigra- These participants were vised, compared with 59% of tion removal proceedings monitored through regular those in a comparison group between 1997 and 2000.287 reporting by telephone or released through standard The study compared the in person and home visits. bond procedures. outcomes of those released The program cost US$12 per The project found that into the program with a con- day as compared with $61 supervision was cost effec- trol group released through per day for detainees in the tive and almost doubled the standard bond or parole same period.289 rate of compliance with fnal procedures. Participants for The Appearance Assistance orders, with 69% of partici- the program were identifed Program demonstrated that pants in intensive supervi- through a screening and authorities did not need to sion complying with the assessment process and detain all noncitizens in re- fnal order in comparison to required to have a verifed moval proceedings to ensure 38% of a comparison group residential address. Partici- high rates of appearance at released on bond or parole. pants received information immigration court hearings: Outcomes were associ- about immigration proceed- 91% of participants in the ated with several factors in ings and the consequences intensive program attended addition to monitoring and of non-compliance; remind- all required hearings com- supervision activities includ- ers of court hearings; and pared with 71% of those in a ing family or community ties, referrals to legal representa- control group. The effect on in-depth explanation regard- tives and support services appearance rates was most ing the hearing process, and such as food banks and dramatic for those least assistance to depart the health clinics. A sub-group likely to appear – undocu- country legally. placed in intensive supervi-

69 THERE ARE ALTERNATIVES (REVISED EDITION)

When supervision is undertaken by an the effectiveness of negative consequences organisation providing other support in increasing compliance with conditions services, such as providing for basic needs, of release.290 Notwithstanding this lack of it is important to clarify the roles of each evidence, the strategy is commonly used party in terms of compliance and enforce- by governments and is included in this ment (for example, see Box 14 Hong Kong). Handbook to prompt discussion. Conse- A focus on service provision may preclude quences for non-compliance include: some organisations from reporting instances Æ Bail, bond, surety or guarantee of non-compliance to authorities. Æ Other consequences.

8.2.3 Surety and other consequences Bail, bond, surety or guarantee for non-compliance Bail, bond, surety or guarantor systems all Several mechanisms used to manage people create a negative fnancial consequence for in a community setting impose conse- non-compliance. These are similar mecha- quences if particular conditions are not met. nisms by which a sum of money is forfeit if There is no authoritative evidence regarding the individual does not comply with his or her

BOX 25 BAIL AS A CONSEQUENCE FOR NON-COMPLIANCE CANADA

Canada uses fnancial con- aid. At detention hearings, individual complies with the sequences, through a bail the burden of proof lies with conditions of their release, mechanism, as one tool in the border services agency which may include, inter its system for managing ir- to demonstrate a continu- alia, providing a nominated regular migrants and asylum ing need for detention for a address, handover of travel seekers in the community.292 reason outlined in law. The documents, or reporting The decision to detain is detainee may also submit requirements. In some situ- automatically reviewed at information to support their ations, the money does not regular detention review case for release. Bail is auto- need to be paid unless the hearings. These hearings are matically considered as an person does not comply undertaken by a member of option to enable release at with the conditions of their the Immigration and Refu- these hearings. release. A bondsperson is of- gee Board within 48 hours ten someone who knows the At these hearings, release of detention, then within detainee personally and is may be ordered with or another seven days and then confdent in their willingness without conditions being every 30 days thereafter, as to comply with authorities.294 imposed. A signifcant factor required.293 Detainees may Several non-government or- in favour of release is if the also request a review hear- ganisations in Canada offer detainee’s application is sup- ing if they have new facts to act as a bondsperson for ported by a “bondsperson”. pertaining to the decision detainees who do not have A bondsperson agrees to to detain. Eligible detainees either the resources or fam- pay a monetary bond which may access free legal repre- ily/community ties required is paid up front, held in trust sentation in the form of legal to make bail. and then returned if the

70 THERE ARE ALTERNATIVES (REVISED EDITION)

immigration procedures or other conditions Detention is a further mechanism used as of their release to the community. The money a consequence for non-compliance. It is involved in these schemes can be from the unclear in what ways the threat of detention individual themselves, or from a third party may affect compliance and does not in itself such as a family member, friend or community guarantee case resolution such as departure.295 organisation.291 Some of these mechanisms Finally, a consequence for those with no require a sum to be paid up front, which can be further avenue to remain in the country is to retrieved if their obligations are fulflled. Others withdraw the option of supported and/or inde- require a sum of money to be paid to authori- pendent departure. Independent departure ties only if the applicant does not fulfl his or allows returnees to retain a level of autonomy her commitments. In order to be both acces- and control over matters such as packing sible and effective for eligible detainees, such up belongings, organising fnances (such as schemes are best served by setting amounts closing bank accounts), and saying farewell based on the individual’s fnancial situation. to family and friends. Enforced departure or In several countries that operate a system deportation is a much more traumatic and of fnancial consequences, non-government degrading experience in which migrants are organisations have funds available to eligible subject to the full force of State authority. detainees who may otherwise be unable to Further, deportation is often linked to bans afford to apply to the bond program. Such on re-entry (with implications for all subse- schemes can be seen in Box 14 Hong Kong, quent international travel) and/or a debt for Box 24 the United States and Box 10 Canada. deportation procedures.296 These adverse consequences are designed to encourage independent departure. Examples of conse- Other consequences quences for non-compliance can be seen Finally, some countries rely on the threat of in Box 14 Hong Kong and Box 21 Sweden. negative consequences to try and reduce non-compliance. The least imposing consequence is to increase conditions. This may 8.3 Detention as a last mean new conditions are introduced or resort, with review existing conditions, such as reporting, are International human rights law and standards intensifed. Meanwhile, some governments make clear that immigration detention should cut access to basic social welfare, such as be used only as a last resort, in exceptional housing, as a consequence for non-compli- cases, after all other options have been ance. However, this fails to fulfl the principle shown to be inadequate in the individual of minimum standards and can be counter- case. The use of confnement with people in productive for case resolution. As shown in an administrative procedure is highly contro- Section 5.2 on basic needs, migrants who versial due to its negative impact on health, become homeless and impoverished are less wellbeing and human rights. Detention should likely to remain in contact with authorities. be avoided entirely for vulnerable individuals and be in accordance with international, regional and national law and standards. This Maintaining minimum includes the requirement that the standards standards can assist case of necessity, reasonableness and proportion- resolution as detailed in ality have been met in the individual case. In Section 5 spite of these serious concerns, detention is included here to be used only as a last resort for exceptional cases after a comprehen-

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sive process has determined before an inde- Æ Proportionate to achieve that legitimate pendent judicial authority that all other options purpose will not address the identifed concerns. Æ Applied without discrimination Æ The last resort based on evidence there If detention is to be used in accordance are no alternatives that can achieve that with international law, several precon- legitimate purpose. ditions must be met. It must be: Æ Lawful Authorities must be able to show that detention is necessary and proportionate Æ Necessary and reasonable in the circum- to the reasons for the detention and that stances they have come to that decision through Æ For a legitimate purpose a thorough assessment of the individual

BOX 26 DETENTION RELEASE OPTIONS VARIOUS COUNTRIES

Philippines – Section 13 of Within this system, Australia due to administrative or the Department of Justice has an avenue to release logistical hurdles (such as Department Order No. 94, detainees who are unable diffculty obtaining travel series of 1998, provides for to depart the country due documents or unconfrmed the provisional release of to circumstances outside identity and/or nationality) refugee applicants from their control, such as when or due to serious physical or detention.298 Through this their country of origin or mental health concerns. The Department Order, detain- regular domicile is unable individual is instead granted ees who seek asylum may or unwilling to issue travel with a temporary residence be released by order of the documents. The Removal status, together with work Department of Justice. In Pending Bridging Visa rights (through Article 111 of practice, the asylum seeker enables migrants who are the Immigration Act). is issued with a Certifcation complying with efforts to South Korea has a provi- of Status in coordination prepare for their removal sional release visa which with UNHCR. This document to be released from deten- provides authorities with is sent to the Immigration tion while this preparation is a discretionary avenue to Commissioner to complete completed. The visa includes release migrants from de- and issue. The only condi- the right to work, access to tention. Established under tion is that the asylum seeker healthcare and basic welfare. Article 65 of the Immigration agrees to follow the require- Visa holders must assist with Control Act and its decree, ments of the Refugee Status preparations to depart the the visa can be issued with Determination process. country. consideration of the follow- Australia has a series of In Mexico, legislation pro- ing factors: irreparable harm ‘bridging visas,’ used to vides that an individual must to the detainee, possibility of provide temporary legal be released from deten- absconding and humanitar- status to migrants who have tion when their departure ian concerns.300 applied for a substantive visa or deportation cannot be or are preparing for return.299 achieved within 60 days,

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without discrimination, and that all other the community has been strictly limited to options have been explored. In such cases, certain areas or at particular times of day.301 detention in appropriate conditions, of limited duration and with regular judicial or other independent review in line with international Alternative forms of standards, may be considered the last resort. detention require an

Comprehensive information on the areas of extremely high threshold detention that require oversight and vigilant before application monitoring are available elsewhere.297 While including a high level these are not repeated in detail here, the key of regulation and inde- areas of note include detention and immigration procedures; treatment and safeguards; pendent oversight safety, order and discipline; material conditions; activities; health care; personnel/staffng; These devices are attached to the person’s and persons in situations of risk/vulnerability. body, usually by being securely strapped around the ankle. Some of these devices 8.4 Alternative forms of detention use Global Positioning System (GPS) technology to be able to identify the specifc The IDC’s program of research was designed location of an individual at any given time. to focus on those forms of migration govern- Other devices require the person wearing the ance that allow migrants to live in the device to be at a base unit at set times and community with liberty and freedom of is used to monitor compliance with curfews. movement while their migration status is All such forms of regulation are included being resolved. As a result of this focus, any within this section on detention because they form of management that amounts to de substantially curtail freedom of movement facto detention by having the intended or and liberty, and consequently require an unintended effect of substantially curtailing extremely high threshold before applica- or completely denying liberty and freedom tion. As with other forms of detention, they of movement is regarded as a form of require a high level of regulation and inde- detention. The various forms of detention pendent oversight, including prompt and include transit zones, closed accommoda- regular judicial review and monitoring. tion centres, alternative places of detention, home detention (including curfews), and traditional immigration detention centres.

In addition, certain forms of electronic monitoring are viewed as an alternative form of detention due to their use to substantially curtail liberty and freedom of movement. Electronic monitoring devices, or ‘ankle bracelets’, are used to monitor the location of an individual whose movement within

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BOX 27 DETENTION CONDITIONS THAT RESPECT DIGNITY AND WELL-BEING SWEDEN

In Sweden, detention may sions, computer rooms visitors are furnished with only be used for people with access to the Internet, tables, chairs, lounges and who are in the process of and gyms. Most rooms toys for children. Two non- being deported because have windows looking out government organisations they have not complied with to garden areas. Super- have unrestricted access a fnal negative decision vised access to a central to the centres to support requiring them to depart the courtyard provides limited residents, provide addi- country.302 Detention centres access to an outdoor area. tional activities and infor- are small, closed accommo- Residents can use mobile mally monitor the conditions dation facilities. Residents phones that do not have an of detention. These condi- can move about freely in-built camera. Staff work to tions have been found to be within the facility. Bedrooms build a culture of dignity and of a very high standard by are shared between two respect with clients. They do international observers.303 to four people. There are not wear security uniforms lounge areas with televi- or carry weapons. Rooms for

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of the issues, while the practical country 9. Conclusion examples elaborate on aspects of implementation and demonstrate that reducing This Handbook has identifed and described detention through community management laws, policies and practices that allow non- is achievable and benefcial for a range of citizens to remain in the community with parties. Further research and evaluation of freedom of movement while their migration alternatives would provide a much stronger status is being resolved, or while awaiting foundation for future policy development. deportation or removal from the country. This pragmatic approach was underpinned by a This Handbook has taken a strengths- human rights framework and a concern for based approach to the issue of detention minimising harm but shaped by the legiti- by focusing on those laws, policies or mate concerns of government in terms programs that impose the least restric- of compliance, timely case resolution and tions on freedom of movement or that cost. In taking such a broad approach, the maintain the highest threshold for decisions IDC’s program of research has been able to detain. For this reason, positive elements to identify strategies to prevent unneces- of a country’s law, policy or practice that sary detention and reduce the length of time may be worth replicating in other settings someone is detained, while also outlining key have been included, even when there may factors impacting the effectiveness of case be concerns about another aspect of that management programs in the community. country’s detention or migration policy.

Notwithstanding the high importance for With effective laws and governments to create migration systems that policies, clear systems respect human rights and protect migrants and good implementation, from unnecessary detention, this Handbook has highlighted opportunities for non-govern- managing asylum seekers, ment organisations to develop and offer refugees and irregular alternatives independently or in partnership migrants can be achieved with government authorities. This report has attempted to point to potential areas for both in the community in most governments and non-government organi- instances sations to work on for productive change.

This Handbook has shown that there is a These fndings have been brought together range of alternatives to detention that govern- in the Revised CAP model. The Revised CAP ments can draw upon to reduce unneces- outlines the principles and processes that, sary detention and increase the success together, prevent unnecessary detention and of community-based management. Many support the success of community placement solutions exist. In fact, the IDC has identi- options. The Revised CAP model is not fed more than 250 examples in over 60 designed to offer a single solution to the issues countries. This includes in countries with faced by governments in governing migration, large numbers of mixed migrants and fewer but it may identify ways of moving forward resources. Further, alternatives can be applied in this diffcult area of policy. The Revised in the majority of cases. Detention is rarely CAP model can assist in framing discus- necessary while working towards satisfac- sions and providing a shared understanding tory case resolution. Placement options range

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from open accommodation in the community Dealing with irregular migration is an everyday with minimal requirements for low-risk groups issue of governance. As this Handbook through to intensive supervision and case shows, with effective laws and policies, management for populations of highest clear systems and good implementation, concern, such as non-citizens facing depor- managing asylum seekers, refugees and tation after completing a prison sentence. irregular migrants can be achieved in the community in most instances. By learning Alternatives are also associated with a range to screen and assess the case of each indi- of benefts. First, alternatives are up to 80% vidual subject to or at risk of detention, cheaper than detention due to lower running authorities can learn to manage people in the costs. They also eliminate costly litigation and community in the majority of cases without compensation claims. Second, alternatives the fnancial and human cost that detention are less harmful than detention. Community incurs. The Handbook shows that cost-effec- placement supports health and wellbeing and tive and reliable alternatives to detention are upholds human rights. They also see people currently used in a variety of settings and better placed to move forward with their have been found to beneft a range of stake- lives once their migration status is resolved, holders affected by this area of policy. whether it be integration or departure. Third, alternatives can achieve effective case resolution outcomes. Alternatives have been shown to achieve up to 95% appearance rates and up to 69% voluntary and independent return rates for refused cases.

It is challenging to govern migration in a way that refects authority over national territory while also treating non-citizens in a humane and dignifed manner. This research has identifed and described a range of mechanisms used to prevent unnecessary detention and provide alternatives to detention that protect the rights and dignity of asylum seekers, refugees and irregular migrants while meeting government and community expectations. The policies described in this report, as outlined in CAP, are currently being implemented in a range of countries to enforce immigration law through mechanisms that do not rely heavily on detention. Such targeted enforcement provides a sophisticated response to the diverse population of irregular migrants and asylum seekers within national territories.

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Suggested further reading

A number of these papers are available on the International Detention Coalition website at http://idcoalition.org/issues/alternatives-to-detention

1. The Forced Migration Review Special Issue 44 on Detention, alternatives to detention, and deportation 2013 available at: http://www.fmreview.org/detention/contents 2. Costello, C. & Kaytaz, E. (2013). Building empirical evidence into alternatives to detention: Perceptions of asylum-seekers and refugees in Toronto and Geneva. Geneva: UNHCR. 3. De Bruycker, P. (Ed.), Bloomfeld, A., Tsourdi, E. & Pétin, J. (2015). Alternatives to immigration and asylum detention in the EU: Time for implementation. Odysseus Network and the European Union. 4. Edwards, A. (2011). Back to basics: The right to liberty and security of person and ‘alternatives to detention’ of asylum-seekers, stateless persons, and other migrants. UNHCR Legal and Protection Policy Research Series. Geneva: UNHCR. 5. European Migration Network. (2014). The use of detention and alternatives to detention in the context of immigration policies: Synthesis report for the EMN Focussed Study 2014. European Commission. 6. Field, O., & Edwards, A. (2006). Alternatives to detention of asylum seekers and refugees. Geneva: UNHCR. 7. Jesuit Refugee Service Europe. (2010). Becoming vulnerable in detention: Civil society report on the detention of vulnerable asylum seekers and irregular migrants in the European Union. Brussels: JRS Europe. 8. Jesuit Refugee Service Europe. (2011). From deprivation to liberty - alternatives to detention in Belgium, Germany and the United Kingdom. Brussels: JRS Europe. 9. Lutheran Immigration and Refugee Service. (2009). Alternatives to detention programs: An international perspective. Washington, D.C.: LIRS. 10. Mitchell, G., & Kirsner, S. (2004). Asylum seekers living in the Australian community: A casework and reception approach, Asylum Seeker Project, Hotham Mission, Melbourne. Refuge, 22(1), 119-128. 11. Robinson, V., & Segrott, J. (2002). Understanding the decision-making of asylum seekers. London: Home Offce. 12. Sampson, R. (2013). Embodied borders: Biopolitics, knowledge mobilisation and alternatives to immigration detention. PhD thesis, Politics, La Trobe University. 13. Sampson, R., & Mitchell, G. (2013).”Global trends in immigration detention and alternatives to detention: Practical, political and symbolic rationales. Journal on Migration and Human Security, 1(3), 97-121. http://dx.doi.org/10.14240/jmhs.v1i3.14. 14. Sullivan, E., Mottino, F., Khashu, A., & O’Neil, M. (2000). Testing community supervision for the INS: An evaluation of the appearance assistance program Volume 1. New York: Vera Institute for Justice. 15. UN High Commissioner for Refugees. (2012). Detention guidelines: Guidelines on the applicable criteria and standards relating to the detention of asylum-seekers and alternatives to detention. Geneva: UNHCR. 16. UN High Commissioner for Refugees. (2014). Beyond detention: A global strategy to support governments to end the detention of asylum-seekers and refugees. Geneva: UNHCR. Available at http://www.refworld.org/docid/536b564d4.html

77 THERE ARE ALTERNATIVES (REVISED EDITION)

Glossary

Term Defnition

Absconding Actions taken by a person to avoid contact with immigration authorities in order to avoid legal migration proceedings and/or outcomes.

Alternative(s) Any law, policy or practice by which persons are able to reside in the to immigration community, without being detained for migration-related reasons. detention (‘alternatives’)

Alternative forms of Any form of migration control which may not be offcially recognised or detention classifed as detention, but which amounts to de facto detention, by having the intended or unintended effect of substantially curtailing or completely denying liberty and freedom of movement.

Asylum seeker A person who has made an application to be recognised as a refugee, but who has not yet received a fnal decision on that application.

Case management A comprehensive and systematic service delivery approach designed to ensure support for, and a coordinated response to, the health and wellbeing of people with complex needs. Case management centres on understanding and responding to the unique needs and challenges of individuals and their context, including vulnerability, protection and risk factors.

Case resolution A fnal outcome of a person’s immigration status including permission to remain in the territory, departure to the country of origin or country of habitual residence, or departure to a third country.

Child A person below the age of eighteen years.

Compliance To fulfl any conditions or immigration-related requirements expressly imposed by the relevant authorities on a person to regulate his/her stay in, or departure from, the country.

Community The wider society of the country. Community-based alternatives use government and/or civil-society support to place and manage persons outside of detention amongst the civilian population. The term is not used to reference specifc types of community, such as ethnic or location-based communities.

Conditions Conditions are actions that individuals are required to undertake to achieve compliance. Conditions must be shown to be necessary and proportionate in the individual case or their application will be arbitrary.

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Term Defnition

Deportation The act of a State to remove a person from its territory after the person has been refused admission or has forfeited or never obtained permission to remain on the territory. A person may be deported to his or her country of origin, habitual residence, or a third country.

In this Handbook, the term ‘deportation’ is used synonymously with ‘forced removal’ and ‘expulsion’, unless otherwise indicated. It is noted that these terms may have different usages and meanings under different national and international laws.

Deprivation of liberty Any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority. Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), Art. 4(2)

Guardian The legally recognised relationship between a designated competent adult and a child or disadvantaged person in order to assure and safeguard the protection of her or his rights. A guardian has a range of powers, rights and duties, including exercising rights on behalf of the child and protecting the best interests of the child.

Immigration detention The deprivation of liberty for migration-related reasons.

Independent Compliance with the obligation to depart a country within a specifed time departure period and without government escort, whether to the migrant’s country of origin, country of habitual residence, or a third country. (c.f. voluntary departure).

IOM International Organization for Migration

Irregular migrant A migrant who does not fulfl, or no longer fulfls, the conditions of entry, stay or residence within a State.

Migrant A person who is outside of a State of which he or she is a citizen, national or habitual resident. Persons are migrants regardless of whether their migration is temporary, lawful, regular, irregular, forced, for protection, for economic reasons, or for any other reason.

Refugee A person who fulfls the defnition of a “refugee” in the 1951 Convention and 1967 Protocol relating to the Status of Refugees or any regional refugee instrument. The recognition of refugee status is a declaratory act and the rights of refugees are invoked before their status is formally recognised by a decision-maker. For this reason, in this Handbook, unless specifcally indicated to the contrary and particularly where a distinction is necessary in relation to case resolution, the term “refugee” includes reference to asylum seekers.

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Term Defnition

Regularisation Regularisation is one process through which undocumented migrants gain legal immigration status. Regularisation includes both one-off initiatives available for a set period (also called ‘amnesties’) and ongoing programs. It may be aimed at specifc groups or on a case-by-case basis for reasons such as humanitarian protection, medical needs or family unity.

Restrictions Restrictions are limitations that can be placed on an individual to help achieve compliance. Restrictions imply some degree of restriction on a person’s liberty or freedom of movement, and must always be shown to be necessary and proportionate in the individual case, otherwise will be arbitrary.

Separated child A child ‘separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. These may, therefore, include children accompanied by other adult family members.’ Committee on the Rights of the Child, General Comment No.6 (2005), Treatment of Unaccompanied and Separated Children Outside their Country of Origin.

Stateless person A person who is not considered as a national by any State under the operation of its law. Article 1 of the 1954 Convention relating to the Status of Stateless Persons. In this Handbook, the term “stateless person” also includes reference to persons at risk of statelessness.

Traffcked person A traffcked person is defned as a person who has been recruited, transported, transferred, harboured or received by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefts to achieve the consent of a person having control over another person, for the purpose of exploitation. UN General Assembly, Protocol to Prevent, Suppress and Punish Traffcking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, 15 November 2000.

Unaccompanied child A child who has been ‘separated from both parents and other relatives’ and is ‘not being cared for by an adult who, by law or custom, is responsible for doing so.’ Committee on the Rights of the Child, General Comment No.6 (2005), Treatment of Unaccompanied and Separated Children Outside their Country of Origin.

UNHCR Offce of the United Nations High Commissioner for Refugees

Voluntary departure The decision of a person to depart the country entirely voluntarily, whether to his or her country of origin, country of habitual residence or a third country. Voluntary departure may take place even when legal avenues to pursue residency in that country remain available. (c.f. independent departure)

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Appendix A – Research methods

Research Project #1 tives to detention’ including both original research and those based on existing The particular aim of this research was to materials; 2) evaluations of relevant policies identify and describe examples of commu- and programs by governments or consult- nity-based alternatives to immigration ants; and 3) ‘grey’ literature including policy detention. The specifc objectives were to: documents describing relevant laws, policies Æ Identify the policy objectives underlying or programs. In addition, relevant international the use of immigration detention. and regional agreements were used to under- Æ Identify key examples in the management stand the context of migration regulation. of asylum seekers, refugees and migrants which fulfl these policy objectives outside Stage 2: International internet-based survey of detention. Æ Identify the range of alternatives to Based on the literature review and consul- detention that are currently operating tations with staff of the IDC, an Internet- internationally, and describe in detail key based survey was undertaken in November- examples in various contexts/regions, December 2009. An invitation to participate including examples with vulnerable was sent via e-mail through a range of individuals. networks including members of the IDC, the Forced Migration e-group and several other Æ Describe the role of governments and their international organisations and networks. We institutions in creating and implementing had 88 survey responses from 28 countries alternatives to detention. (eight participants did not list a country). The Æ Describe the role of non-government survey data was used to inform the interna- organisations and civil society in creating tional feld work and was included for analysis and sustaining the use of alternatives to as part of the overall qualitative dataset. detention. Æ Describe the immigration outcomes and cost benefts where known. Stage 3: International field work Æ Explore the factors which are regarded Countries were selected for feld work based as contributing to the effectiveness on a range of factors including type of alter- of community-based alternatives to native to detention program and target detention. population. In-depth feld work was undertaken in eight countries between January Data collection was undertaken in and March 2010. The feld work included three stages, with each step informing interviews regarding broad policy issues the next stage of data collection. as well as specifc alternative to detention programs. Site visits included, inter alia: Stage 1: Literature review Æ a shelter for unaccompanied minors in Three types of literature were identifed and Hungary; reviewed as the frst stage of data collec- Æ an accommodation centre for asylum tion. This included 1) research on ‘alterna- seekers in Spain;

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Æ a shelter for destitute migrants in Spain; migration; large numbers of refugees, asylum Æ a return-counselling program for families seekers, stateless persons or irregular in Belgium; migrants; and/or those with limited resources Æ an asylum seeker reception program in available to manage such populations. Sweden;

Æ a detention centre in Sweden; Asia/Pacifc Æ a shelter for undocumented migrants in the Thailand, Indonesia, Pakistan, Malaysia United States; and Æ a migrant support program in Hong Kong. Middle East/North Africa Yemen, Morocco, Jordan, Egypt Additional interviews were undertaken with representatives from international organi- South/East Africa sations located in Geneva, Switzerland. Uganda, Zimbabwe, Tanzania, Botswana

A total of 43 interviews with 57 participants Americas and eight site visits were completed. Partici- Brazil, Costa Rica, Ecuador, Mexico pants included representatives of governments, non-government organisations, interna- Europe tional advocacy organisations and UN bodies. Malta, Poland, Romania, Turkey

Further details on the research methods Data collection consisted of a literature for this frst project can be found at review for each country and region, as well as pages 14-15 of Sampson, R., Mitchell, G. in-depth interviews with governments, non- and Bowring, L. (2011). There are alterna- government organisations (local, regional tives: A Handbook for Preventing Unnec- and international), and international bodies essary Immigration Detention. Melbourne: and organisations working in migration The International Detention Coalition. governance, related to detention and alternatives. Additional interviews were under- Research Project #2 taken with regional and international experts and academics in detention and alternatives. Consistent with the approach to IDC’s 2011 These participants were identifed through a Handbook, qualitative research methods thematic literature review and in consultation were utilized to explore the laws, policies with IDC staff and members organisations. and practices employed by governments to manage refugees, asylum seekers, stateless International feldwork/site observations persons and irregular migrants in the were also undertaken in three of the 20 community without resorting to unneces- countries, namely Turkey, Indonesia, and sary and damaging immigration detention. Mexico in 2013. In-person interviews were also Qualitative methods were considered most conducted in Botswana, Indonesia, Jordan, useful in collecting the kind of information Mexico, Malaysia and Turkey. In-person inter- required to fulfl the objectives of the research. views were limited due to fnancial and time constraints. All other interviews were The following 20 countries were selected, generally conducted remotely, using Skype or four from each of the following fve regions: telephone. Some interviews were conducted the Americas, Asia-Pacifc, Europe, Middle with the assistance of an interpreter. East and North Africa, and South and East Africa. Countries were chosen on the basis that they were experiencing transit

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NGO (local or International Country Government Other international) body

Yemen 0 0 2

Morocco 0 0 0

Jordan 3 3 2

Egypt 1 0 1

Zimbabwe 0 0 0

Botswana 2 0 1 2

Tanzania 1 0 1

Uganda 1 0 0

Costa Rica 2 1 1

Mexico * * *

Ecuador 3 1 0

Brazil 0 0 1

Turkey 4 1 2

Poland 3 1 0

Romania 1 1 1

Malta 1 0 0

Indonesia 3 0 2 2

Malaysia 6 2 1

Pakistan 2 0 0

Thailand 3 0 0

TOTAL COUNTRIES 36* 10* 15* 4

EXPERT 2 3 1

TOTAL 38* 10* 18* 5

TOTAL INTERVIEWS 71

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Other sources of knowledge policies for a range of stakeholders would be of great beneft to future work in this area. These two studies were conducted specifcally to identify alternatives across regions Second, due to fnancial and time constraints, and country contexts. An additional piece in-person interviews were limited, with of research on detention and alternatives in data from other countries based on desk- Mexico was undertaken by the IDC Americas based research and remote interviews. offce in 2012. That study involved feld Given the same questions were asked, research and interviews with 32 participants this is not a substantial limitation as IDC from government and from local, regional and considers that the remote interviews were international non-government organisations. still able to provide equivalent information. Conducting remote interviews was Finally, the IDC secretariat staff and member seen as an important method to overcome groups have developed a signifcant body of geographical and fnancial limitations. expert knowledge on alternatives as a result of their ongoing work on this issue for over Third, there are potential limitations to the fve years. IDC staff and members have run interviews themselves due to the number of and/or attended a series of major interna- interviewers undertaking interviews, which tional, regional and national roundtables and may have created inconsistencies in the data consultations on alternatives that have elicited obtained. Furthermore, some people did not valuable information and insights that have respond to IDC’s request for an interview, informed the revision of the Handbook. were unable to be interviewed within the timeframe or declined to be interviewed due Limitations of the program of research to organisational restrictions or a consideration that there were risks to being involved There are some limitations to the research. in the research. As a result, IDC was unable to fully triangulate the interview data in First, the research was not designed to some countries and no interviews were directly evaluate the effectiveness of different conducted for Morocco and Zimbabwe. policies. Instead, this aspect of the fndings are based on the experience of those government representatives and service providers interviewed and on the fndings described in existing research and government reports. The relative paucity of evidence in some areas of policy means the correlation between specifc policies and levels of compliance, cost and case resolution is not always entirely clear. In particular, while the research identifed programs believed to be better for health and wellbeing, it did not evaluate this impact or the ways in which they are experienced by refugees, asylum seekers, stateless persons or irregular migrants themselves. As a result, the experiences of those people most directly impacted by these policies and programs are absent. Evaluation of these

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Endnotes

1. In this Handbook, ‘community’ refers to the http://publications.iom.int/bookstore/free/ wider society of the host country and not to a WMR_2010_ENGLISH.pdf> culturally-defned group with shared ethnicity or language. 7. United Nations Development Programme, Human Development Report 2009, (see n. 4). 2. Association for the Prevention of Torture, Inter- national Detention Coalition, and United Nations 8. Amy Nethery and Stephanie J. Silverman, eds. High Commissioner for Refugees, Monitoring Immigration Detention: The Migration of a Policy Immigration Detention: Practical Manual, (APT and Its Human Impact (Ashgate: Routledge, and UNHCR, 2014), ; UN High Commissioner for day in 1994 to 34,000 per day in 2013: Global Refugees, Guidelines on the Applicable Criteria Detention Project ‘United States detention and Standards Relating to the Detention of profle’ (March 2009) < http://www.globaldeten- Asylum-Seekers and Alternatives to Detention, tionproject.org/de/countries/americas/united- (Geneva: UNHCR, 2012). states/introduction.html >. For more details of global detention capacities see Robyn Sampson 3. The number of international migrants worldwide and Grant Mitchell, “Global Trends in Immigra- grew from 154 million in 1990 to 232 million tion Detention and Alternatives to Detention: in 2013. See United Nations Department of Practical, Political and Symbolic Rationales.” Economic and Social Affairs, ‘The Number of Journal on Migration and Human Security 1, no. 3 International Migrants Worldwide Reaches 232 (2013): 97-121. Million,’ Population Facts no. 2013/2 (UNDESA Population Division, 2013), Security before the Supreme Court of Canada,” Int J Refugee Law 18, no. 2 (2006): 313-32; 4. United Nations Development Programme, Donald Kerwin, “The Use and Misuse of ‘National Human Development Report 2009: Overcoming Security’ Rationale in Crafting U.S. Refugee and Barriers: Human Mobility and Development, Immigration Policies,” Int J Refugee Law, 17 no. 4 (New York: UNDP, 2009), 10. A good discussion can be found at Khalid Koser, 5. In the 27 Member States of the European Union Irregular Migration, State Security and Human in 2008, there were an estimated 28.9 million Security, (London: Global Commission on Inter- foreign residents of which it is estimated that 1.9 national Migration, 2005), and Dita Vogel, The Size of the Irregular Foreign Resident Population in the European Union in 11. Gemma Aubarell, Ricard Zapata-Barrero, and 2002, 2005 and 2008: Aggregated Estimates, Xavier Aragall, “New Directions of National (Hamburg: Hamburg Institute of International Immigration Policies: The Development of the Economics, 2009), In 2012, there was an estimated 11.2 pdf; Global Detention Project ‘United States’ million undocumented migrants in the United (see n. 8); Derek Lutterbeck, “Policing Migration States, accounting for 26% of the total migrant in the Mediterranean,” Mediterranean Politics 11, population: Jeffrey S. Passel and D’Vera Cohn, no. 1 (2006): 59 - 82; Savitri Taylor, “The Impact ‘Unauthorized Immigrant Totals Rise in 7 States, of Australia-PNG Border Management Coop- Fall in 14’ (Washington: Pew Research Center’s eration on Refugee Protection,” Local-Global: Hispanic Trends Project, 2014). Comparative Identity, Security, Community (Special issue: fgures for all regions are diffcult to obtain: c.f. Beyond border control) 8 (2010): 76-99. Graeme Hugo, “Migration in the Asia-Pacifc 12. Aubarell, Zapata-Barrero and Aragall, “New Region,” (Adelaide: Global Commission on Inter- Directions,” (see n. 11); Sandra Lavenex and national Migration, 2005). Emek M. Uçarer, “The External Dimension of 6. International Organization for Migration, World Europeanization,” Cooperation and Confict 39, Migration Report 2010. The Future of Migration: no. 4 (2004): 417-43; Ricard Zapata-Barrero, Building Capacities for Change (2005) 29 < Johantan Zaragoza, and Xavier Aragall, “Coop- eration and the Externalization of Borders and

85 THERE ARE ALTERNATIVES (REVISED EDITION)

of Migration Policies: Spain’s New Political Orien- zerland (1986-1995),” International Migration tations,” In New Directions of National Immigra- Review 34, no. 4 (2000): 1182; Eric Neumayer, tion Policies: The Development of the External “Asylum Destination Choice: What Makes Some Dimension and Its Relationship with the Euro- West European Countries More Attractive Mediterranean Process, 2009, http://www. Than Others?” European Union Politics 5, no. 2 euromesco.net/images/joint%20migration%20 (2004): 155-80; Roslyn Richardson, “Sending a report.pdf. Message? Refugees and Australia’s Deterrence Campaign,” Media International Australia, no. 13. Sampson and Mitchell, “Global Trends,” (see n. 135 (2010): 7-18; Vaughan Robinson and Jeremy 8). Segrott, Understanding the Decision-Making (London: Home Offce, 14. The Global Detention Project aims to document of Asylum Seekers, 2002); Eiko Thielemann, detention infrastructure internationally but Does Policy Matter? On does not have a global estimate. For country Governments’ Attempts to Control Unwanted (San Diego: Center for Comparative estimates see www.globaldetentionproject.org Migration, Immigration Studies, 2004). 15. Much of this section was frst published in April 21. Robinson and Segrott, Understanding Decision- 2015 in the IDC Briefng Paper Does Detention Making (see n. 20). Deter? Written by Robyn Sampson. Available at http://idcoalition.org/detentiondatabase/does- 22. Day and White, “Choice or Circumstance,” (see detention-deter/ n. 20); Gilbert and Koser, “Coming to the UK,” (see n. 20); Havinga and Bocker, “By Choice or 16. Arjen Leerkes and Dennis Broeders, “A Case of by Chance” (see n. 20); Robinson and Segrott, Mixed Motives? Formal and Informal Functions Understanding Decision-Making (see n. 20). of Administrative Immigration Detention,” British Journal of Criminology 50, no. 5 (2010): 830-50. 23. Richardson, “Sending a Message?” (see n. 20).

17. Alice Edwards, Back to Basics: The Right to 24. Robinson and Segrott, Understanding Decision- Liberty and Security of Person and ‘Alterna- Making, (see n. 20). tives to Detention’ of Asylum-Seekers, Stateless Persons, and Other Migrants, (Geneva: UNHCR, 25. Richardson, “Sending a Message?” (see n. 20). 2011). 26. Guy J. Coffey, Ida Kaplan, Robyn C. Sampson, 18. For instance, the Australian Minister for Immi- and Maria Montagna Tucci, “The Meaning and gration stated: “We already have the toughest Mental Health Consequences of Long-Term mandatory detention regime in the Western Immigration Detention for People Seeking developed world, yet people still come to Asylum,” Social Science & Medicine 70, no. 12 Australia…So I don’t think mandatory detention (2010): 2070-79. should be seen as a deterrent” in Michael Owen and Tony Barrass, “Getting Tougher ‘Won’t 27. London Detainee Support Group, No Return, Stop Boats’ Says Chris Bowen,” The Australian, No Release, No Reason: Challenging Indef- November 2nd, 2010. http://www.theaus- nite Detention, (London: LDSG, 2010) http:// tralian.com.au/news/nation/getting-tougher- www.ldsg.org.uk/fles/uploads/NoReasonRe- wont-stop-boats-says-chris-bowen/story- port0910.pdf In addition, airlines may refuse to e6frg6nf-1225946353586 accept deportees on board if they are resisting deportation: Matthew Gibney and Randall 19. Edwards, Back to Basics (see n 17). Hansen, “Deportation and the Liberal State: The Forcible Return of Asylum Seekers and Unlawful 20. Heather Crawley, Chance or Choice? Under- Migrants in Canada, Germany and the United standing Why Asylum Seekers Come to the UK. Kingdom,” In New Issues in Refugee Research (London: UK Refugee Council, 2010); Kate Day Paper No. 77, (Geneva: UNHCR, 2003) 12. and Paul White, “Choice or Circumstance: The UK as the Location of Asylum Applications by 28. Mieke Kox, Leaving Detention? A Study on the Bosnian and Somali Refugees,” GeoJournal Infuence of Immigration Detention on Migrants’ 56, no. 1 (2002): 15-26; Alan Gilbert and Khalid Decision-Making Processes Regarding Return, Koser, “Coming to the UK: What Do Asylum- (The Hague: IOM, 2011). Seekers Know About the UK before Arrival?” Journal of Ethnic and Migration Studies 32, no. 29. Coffey et al., “Meaning and Mental Health Conse- 7 (2006): 1209-1225; Tetty Havinga and Anita quences” (see n. 26). Bocker, “Country of Asylum by Choice or by 30. Richard Black, Khalid Koser, Karen Munk, Gaby Chance: Asylum-Seekers in Belgium, the Neth- Atfeld, Lisa D’Onofrio and Richmond Tiemoko, erlands and the UK,” Journal of Ethnic and Understanding Voluntary Return: Home Offce Migration Studies 25, no. 1 (1999): 43-61; Thomas Online Report 50/04, (London: Home Offce, Holzer, Gerald Schneider, and Thomas Widmer, 2004); Robyn Sampson, Ignacio Correa- “The Impact of Legislative Deterrence Measures Velez, and Grant Mitchell, Removing Seriously on the Number of Asylum Applications in Swit-

86 THERE ARE ALTERNATIVES (REVISED EDITION)

Ill Asylum Seekers from Australia (Melbourne: naire Study,” Global Health Action 8 (2015), doi: Refugee Health Research Centre, 2007). 10.3402/gha.v8.28321.

31. Joris Van Wijk, Reaching out to the Unknown: 40. Physicians for Human Rights et al., From perse- Native Counselling and the Decision-Making cution to prison, 5 (see n 38). Process of Irregular Migrants and Rejected Asylum Seekers on Voluntary Return (The 41. Kathy Eagar, Janette Green, Kerry Innes, Lauren Hague: IOM, 2008). Jones, Carmel Cheney-Fielding, Peter Samsa, and Peter Eklund, The Health of People in 32. Anne Bathily, Immigration detention and its Australian Detention Centres - Health Profle and Impact on Integration - A European approach Ongoing Information Requirements, (Wollon- (Milan: Foundazione ISMU, 2014). gong, NSW: Centre for Health Service Devel- opment, University of Wollongong, 2007); 33. Equal Rights Trust, Unravelling Anomaly: Aamer Sultan and Kevin O’Sullivan, “Psycho- Detention, Discrimination and the Protection logical Disturbances in Asylum Seekers Held in Needs of Stateless Persons (London: The Equal Long Term Detention: A Participant-Observer Rights Trust, 2010). Account,” eMedical Journal of Australia 175 (2001): 593 - 596. 34. London Detainee Support Group, No Return, No Release, No Reason (see n. 27). 42. Ann Lorek, Kimberly Ehntholt, Anne Nesbitt, Emmanuel Wey, Chipo Githinji, Eve Rossor, and 35. B van Alphen, T Molleman, A Leerkes, J van Rush Wickramasinghe, “The Mental and Physical Hoek, Van bejegining tot vertrek – Eenonder- Health Diffculties of Children Held within a zoek naar de werking van vreemdelingenbe- British Immigration Detention Center: A Pilot waring (The Hague: Onderzoek en beleid 308, Study,” 33, no. 9 (2009): Wetenschappelijk Onderzoek- en Documenta- Child Abuse & Neglect 573-85; Sarah Mares and Jon Jureidini, “Psychi- tiecentrum, Ministerie van Veiligheid en Justitie, atric Assessment of Children and Families in 2014), 150; A. Leerkes, E. Boersema, Het lot van Immigration Detention - Clinical, Administrative het inreisverbod, Memorandum 2014-2, (The and Ethical Issues,” Hague: Wetenschappelijk Onderzoek- en Docu- Australian and New Zealand 28, no. 6 (2004): mentatiecentrum, Ministerie van Veiligheid en Journal of Public Health 520-26; Zachary Steel, Shakeh Momartin, Justitie, 2014), http://www.wodc.nl/images/ Catherine Bateman, Atena Hafshejani, Derrick M. mem2014- 2-volledigetekst_tcm44-555776.pdf Silove, Naleya Everson, Konya Roy “Psychi- ; Mark Provera, “The Criminalisation of Irregular , et al. atric Status of Asylum Seeker Families Held Migration in the European Union,” in CEPS Paper for a Protracted Period in a Remote Detention in Liberty and Security in Europe, 80 (2015). Centre in Australia,” Australian and New Zealand 36. Coffey et al., “Meaning and Mental Health Journal of Public Health 28, no. 6 (2004): Consequences” (see n. 26); Axel Klein and 527-36; Zachary Steel and Louise Newman, “The Lucy Williams, “Immigration Detention in the Child Asylum Seeker: Psychological and Devel- Community: Research on the Experiences of opmental Impact of Immigration Detention,” Migrants Released from Detention Centres in Child and Adolescent Psychiatric Clinics of North the UK,” Population, Space and Place 18, no. 6 America 17, no. 3 (2008): 665-683. (2012): 741-753. 43. Coffey et al., “Meaning and Mental Health Conse- 37. Coffey et al., “Meaning and Mental Health Conse- quences” (see n. 26); Masao Ichikawa, Shinji quences” (see n. 26). Nakahara, and Susumu Wakai, “Effect of Post- Migration Detention on Mental Health among 38. Physicians for Human Rights and the Bellevue/ Afghan Asylum Seekers in Japan,” Australian NYU Program for Survivors of Torture, From and New Zealand Journal of Psychiatry 40, Persecution to Prison: the Health Consequences no. 4 (2006): 341-46; Zachary Steel, Derrick of Detention for Ssylum Seekers (Boston & New Silove, Robert Brooks, Shakeh Momartin, Bushra York: PHR and The Bellevue/NYU Program for Alzuhairi, and Ina Susljik, “Impact of Immigra- Survivors of Torture, 2003); Katy Robjant, Rita tion Detention and Temporary Protection on the Hassan, and Cornelius Katona, “Mental Health Mental Health of Refugees,” British Journal of Implications of Detaining Asylum Seekers: Psychiatry 188 (2006): 58-64. Systematic Review,” The British Journal of Psychiatry 194 (2009): 306-12; Zachary Steel 44. Tony Ward, Long-term Health Costs of Extended and Derrick Silove, “The Mental Health Implica- Mandatory Detention of Asylum Seekers, tions of Detaining Asylum Seekers.” eMedical (Melbourne: Yarra Institute for Religion and Journal of Australia 175 (2001): 596 - 99. Social Policy, 2011).

39. Soorej Jose Puthoopparambil, Magdalena 45. The International Covenant on Civil and Political Bjerneld, and Carina Källestål, “Quality of Life Rights provides for the protection from arbitrary Among Immigrants in Swedish Immigration detention in Article 9 and the protection of Detention Centres: A Cross-Sectional Question- freedom of movement in Article 12.

87 THERE ARE ALTERNATIVES (REVISED EDITION)

46. Discussed in full in Edwards, Back to Basics Group, 2009); Department of Immigration and (see n 17); Isabel Ricupero and Michael Flynn, Citizenship, Community Care Pilot and Status Migration and Detention: Mapping the Interna- Resolution Trial, (Canberra: DIAC, 2009); Lisa tional Legal Terrain, (Geneva: Global Detention Nandy, An Evaluative Report on the Millbank Project, 2009). Alternative to Detention Project, (London: The Children’s Society and Bail for Immigra- 47. For this research, the responses varied, but, tion Detainees, 2009); Eileen Sullivan, Felinda when the word “alternatives” was used, respond- Mottino, Ajay Khashu, and Moira O’Neil, “Testing ents either did not know what they were, were Community Supervision for the INS: An Evalu- adamant that none existed in their countries, ation of the Appearance Assistance Program or spoke only in terms of certain types of Volume 1” (New York: Vera Institute for Justice, alternatives. When the interview questions 2000), http://www.vera.org/content/testing- were framed substantively, details of alterna- community-supervision-ins-evaluation-appear- tive measures were forthcoming. For further ance-assistance-program; Verbauwhede, Alter- details on how different organisations defne natives to Detention for Families with Minor and view alternatives see, for example, UN High Children - The Belgium Approach (Belgian Presi- Commissioner for Refugees, Guidelines on the dency of the Council of the European Union, Applicable Criteria and Standards Relating to 2010), http://idcoalition.org/wp-content/ the Detention of Asylum-Seekers and Alter- uploads/2010/09/discussant_i__alternatives_ natives to Detention, (Geneva: UNHCR, 2012); for_detention.pdf Equal Rights Trust, Unravelling Anomaly (see n. 33); European Union Agency for Fundamental 53. International Detention Coalition, Case Manage- Rights, Detention of Third-Country Nationals in ment as an Alternative to Immigration Detention: Return Procedures: Thematic Report, (Vienna: The Australian Experience, (Melbourne: IDC, FRA, 2010), 72-81. 2009); International Detention Coalition, Dignity Without Exception: Alternatives to Immigration 48. Sampson and Mitchell, “Global Trends” (see n. 8). Detention in Mexico, (Mexico City, Mexico: IDC, 2013); Grant Mitchell and Sara Kirsner, “Asylum 49. Natasa Chmelickova, ed. Survey on Alterna- Seekers Living in the Australian Community: tives to Detention of Asylum Seekers in EU A Casework and Reception Approach, Asylum Member States, (Regional Advocacy Coalition, Seeker Project, Hotham Mission, Melbourne,” 2006); Cathryn Costello and Ezra Kaytaz, Refuge, 22, no. 1 (2004): 119-28; Rutgers School Building Empirical Evidence into Alterna- of Law - Newark Immigrant Rights Clinic and tives to Detention: Perceptions of Asylum- American Friends Service Committee, Freed But Seekers and Refugees in Toronto and Geneva, (Geneva: UNHCR, 2013); European Migration Not Free: A Report Examining the Current Use of Alternatives to Immigration Detention, (New Network, The Use of Detention and Alterna- Jersey: Rutgers and AFSC, 2012); Susan Weishar, tives to Detention in the Context of Immigration “A More Humane System: Immigration Detention Policies: Synthesis Report for the EMN Focussed through Community-Based Alternatives (Part Study 2014, (European Commission, 2014); 2),” JustSouth Quarterly, no. Spring (2011): 4 & 9. Ophelia Field and Alice Edwards, Alternatives to Detention of Asylum Seekers and Refugees, 54. Department of Immigration and Citizenship, (Geneva: UNHCR, 2006). Annual Report 2009-2010, (Canberra: DIAC, 2010) 159; Dita Vogel and Norbert Cyrus, 50. Amnesty International, Irregular Migrants and Irregular Migration in Europe - Doubts on the Asylum-Seekers: Alternatives to Immigration Effectiveness of Control Strategies. (Hamburg: Detention, (London: Amnesty International, Hamburg Institute of International Economics, 2009); Edwards, Back to Basics (see n 17); Field 2008). and Edwards, Alternatives to Detention (see n. 49). 55. Examples are provided in Section 4.

51. Nina Siulc, Zhifen Cheng, Arnold Son, and Olga 56. Valerie Braithwaite, Compliance with Migration Byrne, Legal Orientation Program: Evaluation Law: Report for the Department of Immigration and Performance and Outcome Measurement and Citizenship, (Canberra: DIAC, 2010); Costello Report, Phase II, (New York: Vera Institute of and Kaytaz Building Empirical Evidence (see n. Justice, 2008). The lack of an evidence-base for 49); Ilan Katz, Abigail Powell, Sandra Gendera, migration programs is discussed in International Tricia Deasy, and Erik Okerstrom, The Experi- Organization for Migration, Assessing the Costs ences of Irregular Maritime Arrivals Detained in and Impacts of Migration Policy: An International Immigration Detention Facilities: Final Report. Comparison, (Geneva: IOM, 2008). (Sydney: Social Policy Research Centre, Univer- sity of New South Wales and Australian Survey 52. Jane Aspden, Evaluation of the Solihull Pilot for Research Group, 2013). the United Kingdom Border Agency and the Legal Services Commission. (UKBA and LSC, 57. Braithwaite, Compliance with Migration Law (see 2008); Andrew Cranfeld, Review of the Alterna- n. 56); Costello and Kaytaz, Building Empirical tive to Detention (A2D) Project, (London: Tribal

88 THERE ARE ALTERNATIVES (REVISED EDITION)

Evidence (see n. 49); Katz et al., Irregular tionforum.org/images/uploads/mathofmmigra- Maritime Arrivals Detained (see n. 56). tiondetention.pdf

58. Costello and Kaytaz, Building Empirical Evidence 72. The annual cost of detaining an asylum seeker (see n. 49). in Australia was $239,000 in 2013-14: Australian National Commission of Audit, The Report of the 59. Edwards, Back to Basics (see n 17). National Commission of Audit (Canberra: NCOA, 2014) 10.14 http://www.ncoa.gov.au/report/ 60. U.S. Government Accountability Offce, Alter- appendix-vol-2/10-14-illegal-maritime-arrival- natives to Detention: Improved Data Collection costs.html and Analyses Needed to Better Assess Program Effectiveness (Washington, D.C.: US GAO, 2014), 73. Cost to operate the Asylum Seeker Assistance http://www.gao.gov/products/GAO-15-26 Scheme. Based upon the provision of assis- 30-31. tance to 2802 persons at a cost of AUD 9.058 million during 2009-2010: Australia Department 61. Edwards, Back to Basics (see n 17). of Immigration and Citizenship, Annual Report 62. Email from the Director of the Toronto Bail 2009-2010, (Canberra: DIAC, 2010), Adminis- Project 30.07.2015. On fle with the IDC. tered Item – Payments to the Australian Red Cross Society for the Asylum Seeker Assis- 63. International Detention Coalition, Case Manage- tance Scheme http://www.immi.gov.au/about/ ment as an Alternative (see n. 53). reports/annual/2009-10/html/outcome-2/ administered2-1-5.htm 64. Department of Immigration and Border Protec- tion, Annual Report 2009-10 (Canberra: DIAC, 74. Cost to operate the Community Care Pilot at 2010) 171. AUS$5.6 million for 2008/9 with a maximum of 400 people in the pilot during this period, with 65. United Kingdom Home Offce, UK Freedom of an average daily cost of AUD $38.30. Excludes Information Request – 34114. On fle with the IDC. case management costs. See Joint Standing 66. Email from UNHCR Indonesia, 13 March 2015. Committee on Migration, “Inquiry into Immigra- Copy on fle with the IDC. tion Detention in Australia: Report 2 – Commu- nity-Based alternatives to Detention,”(Canberra: 67. Oral testimony of Julie Myers Wood. “S. 744 Commonwealth of Australia, 2009), 122 http:// and the Immigration Reform and Control Act of www.aph.gov.au/Parliamentary_Business/ 1986: Lessons Learned or Mistakes Repeated?” Committees/Joint/Completed_Inquiries/mig/ Hearing before the U.S. House of Repre- detention/report2 sentatives Committee on the Judiciary, One Hundred Thirteenth Congress, First Session 75. Philippe De Bruycker (Ed.), Alice Bloom- on s.744. 22 May 2013. http://judiciary.house. feld, Evangelia (Lilian) Tsourdi, and Joanna gov/_cache/fles/3498f4a0-82f4-4902-a73b- Pétin, “Alternatives to Immigration and Asylum da2d54055f44/113-30-81174.pdf 81. Detention in the EU: Time for Implementa- tion,” (Odysseus Network and the European 68. Of 19,905 third country nationals ordered Union, 2015), 129 http://odysseus-network.eu/ to leave, 12,988 returned voluntarily and 614 wp-content/uploads/2015/02/FINAL-REPORT- returned through an Assisted Voluntary Return alternatives-to-detention-in-the-EU.pdf program. European Migration Network, “Country Factsheet: Sweden 2012.” http://ec.europa. 76. De Bruycker, “Alternatives in the EU,” 129 (see eu/dgs/home-affairs/what-we-do/networks/ n. 75). european_migration_network/reports/docs/ 77. Figures for 2013. Quoted in European Migration country-factsheets/sweden-emn-ountry-facth- Network, The Use of Detention and Alterna- seet_en.pdf 6. tives to Detention in the Context of Immigra- 69. Jesuit Refugee Service Europe, From Depri- tion Policies in Belgium, (Brussels: EMN, 2014), vation to Liberty: Alternatives to Detention in http://www.emnbelgium.be/publication/deten- Belgium, Germany, and the United Kingdom, tion-and-alternatives-detention-belgium (Brussels: JRS Europe, 2011). 78. EMN, Immigration Policies Belgium, see (n.77). 70. An analysis of such cost savings can also be Although data for 2013 could not be located, found in Susan Banki and Ilan Katz, Resolving the cost per day per person for housing and Immigration Status Part 2: Comparative Case assisting asylum-seekers in open centres was Studies, (Sydney NSW: Social Policy Research ¤53 in 2009 (approximately USD $68). Mieke Centre UNSW, 2009); Edwards, Back to Basics Candaele, spokesperson for FEDASIL, quoted 84 (see n 17); Field and Edwards, Alternatives to in UNHCR, “Alternatives to the Detention Detention 48-50 (see n. 49). of Asylum-Seekers in Belgium,” (UNHCR, November 2011), http://www.refworld.org/ 71. National Immigration Forum, The Math of Immi- docid/524fc3ef4.html gration Detention (2013) 1 http://www.immigra-

89 THERE ARE ALTERNATIVES (REVISED EDITION)

79. Edwards, Back to Basics (see n 17). Australasian Psychiatry, 11 Supplement, (2003): 96-101. 80. Edwards, Back to Basics (see n 17). 94. Ilan Katz, Geraldine Doney, and Effe Mitchell, 81. Edwards, Back to Basics (see n 17). Evaluation of the Expansion of the Community 82. This fgure is for shelters for unaccompa- Detention Program: Final Report to the Depart- , (Sydney: nied refugee and asylum seeking children. This ment of Immigration and Citizenship Social Policy Research Centre, UNSW, 2013) 8. includes rental of premises, weekly allowances, security, supplies, and activities for the children, 95. Katz, Evaluation of Community Detention (see but excludes health care costs and the initial n. 94). purchase of furniture and equipment. Email from UNHCR Indonesia, 2015. On fle with the IDC. 96. Australian Human Rights Commission, Immigra- tion Detention at Villawood: Summary of Obser- 83. U.S. GAO, Improved Data Collection 19 (see n. vations from Visit to Immigration Detention Facil- 60). ities at Villawood, (Canberra: AHRC, 2012), 16.

84. ISAP program. U.S. GAO, Improved Data Collec- 97. For instance, evidence suggests returned asylum tion 19 (see n. 60). seekers who were detained in Australia for long periods were in a much more diffcult position 85. Interview during feldwork by Robyn Sampson. trying to re-establish life than returned asylum 86. UK National Audit Offce, Returning failed seekers who had not been detained: David asylum applicants, (London: The Stationary Corlett, Following Them Home: The Fate of the Offce, 2005) 44. Returned Asylum Seekers. (Melbourne: Black Inc., 2005) 59. See Sampson, Correa-Velez and 87. Given some costs are the same across these two Mitchell Removing Seriously Ill Asylum Seekers models (i.e. airfares and some staffng costs); (see n. 30) regarding the impact of poor health the comparison is demonstrated by comparing on the ability to prepare for return and Coffey et the ‘non-common costs’ (i.e. location, detention al., “Meaning and Mental Health Consequences” versus counselling, allowances). This allows (see n. 26) regarding the diffculties faced by for a conservative estimate of the costs to be former detainees in building a new life after compared. Senate Legal and Constitutional release with a visa. Legislation Committee, Additional Budget Estimates Hearing: Immigration and Citizen- 98. Field and Edwards argue that asylum seekers in ship Portfolio, (2009) http://www.aph.gov.au/ their destination country want to comply with senate/committee/legcon_ctte/estimates/ authorities while waiting for a visa outcome in add_0809/diac/38.pdf order to secure their future legal status, Field and Edwards, Alternatives to Detention (see n. 88. See Medical Justice, Review into Ending the 49). Detention of Children for Immigration Purposes: Response by Medical Justice, (2010) quoted in 99. UNHCR, Refugee Protection and Mixed Edwards, Back to Basics (see n 17). Migration: A 10-point Plan of Action, (Geneva: UNHCR, 2007). For a discussion of the 89. O’Brien, Natalie, “Asylum Compo Bill Tops different types of irregular migrants see $16m,” The Sydney Morning Herald, June 12 2011. Ryszard Cholewinski and Kristina Touzenis, “Irregular Migration into and through Southern 90. Ward, Long Term Health Costs (see n. 44). and Eastern Mediterranean Countries: Legal 91. As described in detail in Section 1.3.3. See Perspectives,” In CARIM Analytic and Synthetic also Ichikawa et al. “Effect of Post-Migration Notes 2009/01 (Florence: Consortium for Detention (see n. 43); Steel et al. Impact of Applied Research on International Migration, Detention (see n 43). 2009) and Vogel and Cyrus Irregular Migration in Europe (see n. 54). 92. Coffey et al., “Meaning and Mental Health Conse- quences” (see n. 26). 100. See also Section 2.4.1. This was evident in feld work in Spain, Sweden, Hong Kong and the 93. Cornelis J. Laban, Ivan H. Komproe, Hajo B. P. E. Netherlands. This fnding is evident in Field Gernaat, and Joop T.V.M. de Jong. “The Impact and Edwards, Alternatives to Detention (see of a Long Asylum Procedure on Quality of Life, n. 49); Mitchell and Kirsner Casework and Disability and Physical Health in Iraqi Asylum Reception Approach (see n. 53); Sullivan et al., Seekers in the Netherlands.” Social Psychiatry “Testing Community Supervision” (see n. 52). and Psychiatric Epidemiology 43, no. 7 (2008): It is important to note that transit or destina- 507-15; Susan Rees, “Refuge or Retrauma? tion status can only be established on a case- The Impact of Asylum Seeker Status on the by-case basis for each individual (see Section Wellbeing of East Timorese Women Asylum 6.4.3). Seekers Residing in the Australian Community,”

90 THERE ARE ALTERNATIVES (REVISED EDITION)

101. Field and Edwards, Alternatives to Detention, iv that shows refugees’ mental health is signif- (see n. 49). cantly associated with current socio-political circumstances: Matthew Porter and Nick Haslam, 102. See Rutvica Andrijasevic, “Lampedusa in Focus: “Predisplacement and Postdisplacement Factors Migrants Caught between the Libyan Desert and Associated with Mental Health of Refugees and the Deep Sea,” Feminist Review 82, no. 1 (2006): Internally Displaced Persons: A Meta-Analysis,” 120-25; Jacqueline Hagan, Karl Eschbach, and Journal of American Medical Association 294, Nestor Rodriguez, “U.S. Deportation Policy, no. 5 (2005): 602-12. For a discussion on the Family Separation, and Circular Migration,” The importance of supporting health throughout International Migration Review 42, no. 1 (2008): the assessment process, see Ignacio Correa- 64; Stephen H. Legomsky, “The USA and the Velez, Vanessa Johnston, Joanne Kirk, and Caribbean Interdiction Program,” Int J Refugee Angeline Ferdinand, “Community-Based Asylum Law 18, no. 3-4 (2006): 677-95; Janet Phillips Seekers’ Use of Primary Health Care Services and Harriet Spinks, “Background Note: Boat in Melbourne,” The Medical Journal of Australia Arrivals in Australia since 1976,” (Canberra: 188, no. 6 (2008): 344-348; Sampson, Correa- Parliamentary Library, Commonwealth of Velez and Mitchell Removing Seriously Ill Asylum Australia, 2011). Seekers (see n. 30).

103. See also Section 5 Minimum Standards. This 107. This is discussed in more detail in Sections 7 was evident in feld work in Sweden, Belgium Case management and 5.4 Legal advice. This and Hong Kong. This fnding is supported by fnding was evident in the United Kingdom, the fndings of Edwards, Back to Basics (see Sweden, the United States, Australia, Belgium n 17); Jesuit Refugee Service Europe, From and reinforced by the fndings of Aspden, Evalu- Deprivation to Liberty, (see n. 69); Field and ation of the Solihull Pilot (see n. 52); Edwards, Edwards, Alternatives to Detention 30-35 Back to Basics (see n 17); Field and Edwards, (see n. 49); Lucy Fiske and Mary Ann Kenny, Alternatives to Detention 45 (see n. 49); Fiske “‘Marriage of Convenience’ or ‘Match Made in and Kenny, “Marriage of Convenience” (see n. Heaven’: Lawyers and Social Workers Working 103); Hotham Mission Asylum Seeker Project, with Asylum Seekers.” Australian Journal of Providing Casework to Asylum Seekers at the Human Rights 10, no. 1 (2004): 137-57; Fleay, Final Stages: Discussion Paper, (Melbourne: Caroline, and Lisa Hartley. 2015. “‘I Feel Like a Hotham Mission, 2006), http://idcoalition.org/ Beggar’: Asylum Seekers Living in the Australian paper-providing-casework-to-asylum-seekers- Community Without the Right to Work.” Journal at-the-fnal-stages/ ; Sullivan et al., “Testing of International Migration and Integration (2015): Community Supervision” (see n. 52). 1-18, doi: 10.1007/s12134-015-0453-x; Lutheran Immigration and Refugee Service, Alterna- 108. Edwards, Back to Basics (see n 17) regarding the tives to Detention Programs: An International Glasgow ‘family return project’. See also Jesuit Perspective, (Washington, D.C.: LIRS, 2009); Refugee Service Europe, From Deprivation to Mitchell and Kirsner Casework and Reception Liberty (see n. 69). Approach (see n. 53). 109. This was evident in Hungary, Hong Kong and 104. For a discussion, see Jesuit Refugee Service Spain. Unfortunately, there is very little data Europe Living in Limbo: Forced Migrant Destitu- establishing the effectiveness of community tion in Europe (Brussels: Jesuit Refugee Service management options in ‘transit’ countries. Some Europe, 2010). http://www.jrseurope.org/publi- research points to the ways ‘transit’ countries cations/JRS%20Europe%20Living%20in%20 are actually destination countries for many Limbo%20-18-18h.pdf people: “it is a misconception that all or most migrants crossing the Sahara are “in transit” to 105. Alice Bloch and Liza Schuster, “Asylum and Europe. There are possibly more sub-Saharan Welfare: Contemporary Debates,” Critical Social Africans living in the Maghreb than in Europe… Policy 22, no. 3 (2002): 393-414; Wayne A. While Libya is an important destination country Cornelius, “Controlling ‘Unwanted’ Immigration: in its own right, many migrants failing or not Lessons from the United States, 1993-2004,” venturing to enter Europe prefer to stay in North Journal of Ethnic and Migration Studies 31, no. 4 Africa as a second-best option.” Hein de Haas, (2005): 775-94; Sylvie Da Lomba, “The Threat “Irregular Migration from West Africa to the of Destitution as a Deterrent against Asylum Maghreb and the European Union: An Overview Seeking in the European Union,” Refuge 23, no. of Recent Trends,” In IOM Migration Research 1 (2006): 81-93; Thielemann Does Policy Matter Series, (Geneva: International Organization for (see n. 20). Migration, 2008) 9.

106. Hildegard Dumper, Richard Malfait, and Nick 110. Field and Edwards, Alternatives to Detention, 51 Scott Flynn, Mental Health, Destitution & Asylum (see n. 49). Seekers: A Study of Destitute Asylum Seekers in the Dispersal Areas of the South East of England, 111. MHub, Detained Youth: The Fate of Young (South of England Refugee & Asylum Seeker Migrants, Asylum-Seekers and Refugees in Libya Consortium, 2006). This coincides with research Today, (MHub, 2015), http://www.mixedmigra-

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tionhub.org/wp-content/uploads/2015/07/ in Member States for Returning Illegally Staying MHUB_2015_Detained-Youth.pdf Third-Country Nationals.

112. Edwards, Back to Basics, (see n 17). 118. The Directive of the European Parliament and of the Council 2013/180/96 of 26 June 2013, Laying 113. The United Nations Offce of the High Commis- Down Standards for the Reception of Applicants sioner for Human Rights (OHCHR) has for International Protection (Recast). developed a set of guidelines and principles on human rights-based migration governance. 119. European Union Agency for Fundamental The fundamental premise of these guidelines Rights, Fundamental Rights: Challenges and and principles is that all migrants, regardless of Achievements in 2012, (Vienna: EU FRA, 2012). their legal status, how they arrive at the border, where they come from or what they look like, 120. European Migration Network, Synthesis Report are entitled to enjoy their human rights. See for the EMN Focussed Study 34 (see n. 49). OHCHR, Recommended Principles and Guide- 121. European Union Agency for Fundamental lines on Human Rights at International Borders, Rights, Fundamental Rights, 80-81 (see n. 119). (Geneva: OHCHR, 2015) http://www.ohchr.org/ The report identifes such case law in Austria, Documents/Issues/Migration/OHCHR_Recom- Germany, Denmark, the Netherlands and mended_Principles_Guidelines.pdf Slovenia. Hong Kong case law has also required 114. For relevant international standards relating that the government outline the reasons for to detention: see International Detention detention: Mark Daly, “Refugee Law in Hong Coalition, Legal Framework and Standards Kong: Building the Legal Infrastructure,” Hong Relating to the Detention of Refugees, Asylum Kong Lawyer 09 (2009): 14-30. (Melbourne: IDC, 2011); Seekers and Migrants, 122. UN Committee on the Rights of the Child, See also Amnesty International, Migration- Report of the 2012 Day of General Discussion: Related Detention: A Research Guide on Human The Rights of all Children in the Context of Inter- Rights Standards Relevant to the Detention national Migration, (2012) http://www2.ohchr. of Migrants, Asylum-Seekers and Refugees, org/english/bodies/crc/docs/discussion2012/ (London: Amnesty, 2007) http://www.unhcr. ReportDGDChildrenAndMigration2012.pdf org/refworld/docid/476b7d322.html ; UNHCR, Detention Guidelines (see n. 2). 123. UN General Assembly, Report of the Special Rapporteur on the Human Rights of Migrants, 115. For a discussion of the human rights that François Crépeau. A/HRC/20/24 (2012). para underlie this presumption against detention, 72(f); see also Platform for International Coop- see Edwards, (see n 17) and Back to Basics eration on Undocumented Migrants (PICUM), European Union Agency for Fundamental Children First and Foremost: A Guide to Rights, Detention of Third-Country Nationals, Realizing the Rights of Children and Families in 80-81 (see n. 47). an Irregular Migrant Situation, (PICUM, 2013) 116. Ruben Giustiniani, ed. Migración: Un Derecho http://picum.org/picum.org/uploads/publica- Humano (Migration: A Human Right), (Buenos tion/Children%20First%20and%20Foremost.pdf Aires: Prometeo, 2004); Cristina Zurbriggen 124. UN General Assembly, Report of the Special and Lenin Mondol, Estado actual y perspectivas Rapporteur para 72(f) (see n. 123). de las políticas migratorias en el MERCOSUR (Current situation and perspectives of migration 125. UNICEF, Administrative Detention of Children: policies in MERCOSUR), (Montevideo: FLACSO, A Global Report, (Geneva: UNICEF, 2011), 167, 2010); Barbara Hines, “The Right to Migrate as a 226, 229. Human Right: The Current Argentine Immigra- tion Law,” Cornell Int’l L.J. 471 (2010); Also the 126. Michael Dudley and Bijou Blick, The Heart of the government reports: Argentine Republic, Initial Nation’s Existence – A Review of Reports on the Report Submitted by the Argentine Republic Treatment of Children in Australian Detention under Article 73 of the Convention on the Centres, (ChilOut, 2002) Appendix E; Sarah Protection of the Rights of All Migrant Workers Mares and Jon Jureidini, “Psychiatric Assess- and Members of Their Families, 4 August ment of Children and Families in Immigration 2010, CMW/C/ARG/1; Informe Nacional de la Detention - Clinical, Administrative and Ethical República Argentina sobre la Implementación Issues.” Australian and New Zealand Journal of de los Compromisos emanados de la Cuarta Public Health 28, no. 6 (2004): 520-526; Human Cumbre de las Américas (National Reports on Rights and Equal Opportunity Commission, A the Implementation of Commitments from the Last Resort? National Enquiry into Children in Fourth Summit of the Americas), XLVII GRIC/ Detention, (Canberra: HREOC, 2004); Zachary SIRG Ministerial, GRIC/Inf.1/07, 22 May 2007. Steel, “The Politics of Exclusion and Denial: The Mental Health Costs of Australia’s Refugee 117. The Directive of the European Parliament and Policy,” Australian and New Zealand Journal of of the Council 2008/115/EC of 16 December Psychiatry 37, (2003): A45-A46. 2008, on Common Standards and Procedures

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127. “Incarceration, even under relatively safe condi- reports/docs/emn-studies/unaccompanied- tions, is damaging for immigrant children, espe- minors/13a_hungary_unaccompanied_minors_ cially those with high levels of previous trauma en.pdf exposure” in Rachel Kronick, Cécile Rousseau, and Janet Cleveland. “Asylum-Seeking Children’s 139. European Migration Network, Policies, Practices Experiences of Detention in Canada: A Quali- and Data Hungary (see n. 138). tative Study,” American Journal of Orthopsy- 140. European Migration Network, Policies, Practices chiatry, 85, no. 3 (2015): 287-94. See also David and Data Hungary (see n. 138). Corlett, Grant Mitchell, Jeroen Van Hove, Lucy Bowring and Katherine Wright, Captured 141. European Union Agency for Fundamental Childhood, (Melbourne: International Detention Rights, Fundamental Rights: Challenges and Coalition, 2012) 51; Lorek et al., ‘Children in Achievements in 2014, (Vienna: EU FRA. 2014), Detention” (see n. 42). http://fra.europa.eu/sites/default/fles/fra- annual-report-2014_en.pdf; UNHCR, Detention 128. Kronick, Rousseau and Cleveland, “Asylum- Guidelines (see n. 2). seeking children’s experiences of detention” (see n. 127). 142. John A. Dent, Research Paper on the Social and Economic Rights of Non-Nationals in Europe, 129. See also UNHCR and IRC, Field Handbook (ECRE, undated). for the Implementation of UNHCR BID Guide- lines, (Geneva: UNHCR and IRC, 2011); UNHCR, 143. As described in the above Section 2.5. UNHCR Guidelines on Determining the Best Interests of the Child, (Geneva: UNHCR, 2008). 144. For a discussion, see Jesuit Refugee Service Europe, Living in Limbo (see n.104). 130. Terry Smith and Laura Brownlees, Age Assess- ment Practices: A Literature Review & Annotated 145. Bloch and Schuster, “Asylum and Welfare: Bibliography, (New York: UNICEF, 2011). Contemporary Debates” (see n. 105); Cornelius “Controlling ‘Unwanted’ Immigration” (see n. 131. Corlett et al., Captured Childhood, 65 (see n. 127) 105); Da Lomba, “The Threat of Destitution” (see n. 105); Thielemann Does Policy Matter (see n. 132. Corlett et al., , 65 (see n. 127) Captured Childhood 20). 133. UN Committee on the Rights of the Child, 146. Dumper et al., Mental health, Destitution & General Comment No. 6: Treatment of Unac- Asylum Seekers (see n. 106). c.f. Hotham Mission companied and Separated Children outside their Asylum Seeker Project, Providing Casework, (2005), http://daccess-dds- Country of Origin (see n. 107); Sampson, Correa-Velez and Mitchell ny.un.org/doc/UNDOC/GEN/G05/438/05/PDF/ Removing Seriously Ill Asylum Seekers (see n. G0543805.pdf?OpenElement 30). 134. European Union Agency for Fundamental 147. As described in Section 2.5. Rights, Guardianship for Children Deprived of Parental Care - A Handbook to Reinforce Guardi- 148. Council of the European Union, Directive anship Systems to Cater for the Specifc Needs 2013/33/EU, Article 17 (see n. 118). of Child Victims of Traffcking, (Luxembourg: Publication Offce of the European Union, 2014). 149. Council of the European Union, Directive 2013/33/EU, Article 15 (see n. 118). 135. UN Committee on the Rights of the Child, General Comment No. 6, para 33 (see n. 133). 150. Information in this break out box is from interviews and site visits, with further references as 136. European Union Agency for Fundamental noted. Rights, Guardianship (see n. 134). 151. “[B]earing in mind that the general objective of 137. Section 56 of Hungary’s Act II of 2007 also a C.A.R. is to develop the capacity of the Centre provides that children with families may be resident’s integration in Spanish society, the detained as a measure of last resort and for a Centre operates as a mediating agent in the inte- maximum of 30 days, where the best interests gration process” Ministerio de Trabajo y Asuntos of the child shall be a primary consideration, and Sociales, Refugee Reception Centres (C.A.R.), if the immigration authorities are of the opinion (Madrid: Calidad Administracion Publica, 2007). that the objectives of detention cannot be met by the confscation of travel documents or a 152. Ministerio de Trabajo y Asuntos Sociales, C.A.R.: designated residence requirement. Refugee Reception Centre, (Madrid: Ministerio de Trabajo y Asuntos Sociales, 2006). 138. European Migration Network, Policies, Practices and Data on Unaccompanied Minors in 2014: 153. UNHCR, Submission by the UNHCR for the Hungary, (European Commission, 2014) http:// OHCHRs Compilation Report Universal Periodic ec.europa.eu/dgs/home-affairs/what-we- Review Spain, (Geneva: UNHCR, 2009). do/networks/european_migration_network/

93 THERE ARE ALTERNATIVES (REVISED EDITION)

154. For a discussion of the role of visas on resolving airlines may refuse to accept deportees on migration status, see Susan Banki and Ilan Katz, board if they are resisting deportation: Gibney Resolving Immigration Status Part 1: Review of and Hansen, “Deportation and the Liberal State,” the International Literature, (Sydney NSW: Social (see n. 27). Policy Research Centre UNSW, 2009); Banki and Katz, Resolving Immigration Status Part 2 (see 166. UNHCR, Detention Guidelines: Guidelines on the n. 70). Applicable Criteria and Standards Relating to the Detention of Asylum-Seekers and Alternatives to 155. UNHCR, Options Paper 2: Options for Govern- Detention, (Geneva: UNHCR, 2012), http://www. ment on Open Reception and Alternatives to unhcr.org/refworld/docid/503489533b8.html Detention, (Geneva: UNHCR, 2015) 6. 167. UNHCR and OHCHR, Global Roundtable on 156. Tolerated status is granted to persons satisfying Alternatives to Detention of Asylum-Seekers, the criteria laid out in article 99 of Romania’s Refugees, Migrants and Stateless Persons: Emergency Ordinance 194/2002 on alien’s Summary Conclusions, (May 2011) 31, http:// regime in Romania. This includes persons www.unhcr.org/refworld/docid/4e315b882.html against whom a detention order was made but who could not be returned within 6 months; 168. Rutgers School of Law - Newark Immigrant persons for whom there are serious reasons to Rights Clinic and American Friends Service believe are victims of human traffcking; and Committee, Freed But Not Free, 17 (see n. 53). persons detained for deportation, but who could 169. European Union Agency for Fundamental not be removed within 2 years. Rights, Handbook on European Law Relating to 157. European Migration Network, Synthesis Report Asylum, Borders and Immigration, (Vienna: EU for the EMN Focussed Study, 34 (see n. 49). FRA, 2014), 165.

158. As described in Section 2.4.1 and 2.5. The impor- 170. In Germany, immigration and asylum authori- tance of provision of information has been iden- ties, border guards and the police are respon- tifed by Aspden, Evaluation of the Solihull Pilot sible for conducting an individual assessment of (see n. 52); Field and Edwards, Alternatives to the grounds for detention, and will fle an appli- Detention 45 (see n. 49); and Lutheran Immi- cation for detention of a third-country national gration and Refugee Service, An International with the courts. The fnal decision to detain Perspective (see n. 103). can only be made by the court. See European Migration Network, Synthesis Report for the 159. Costello and Kaytaz, Building Empirical EMN Focussed Study, 25 (see n. 49). Evidence, 35 (see n. 49). 171. Eleanor Acer, “Living up to America’s Values: 160. Ramji-Nogales, Schoenholtz and Schrag, Reforming the U.S. Detention System for “Refugee Roulette” (see n. 214). Asylum Seekers,” Refuge 20, no. 3 (2004): 44-57; Vladeck, Stephen I. “Boumediene’s Quiet 161. American Bar Association, Reforming the Immi- Theory: Access to Courts and the Separation gration System: Proposals to Promote Independ- of Powers.” Notre Dame Law Review 84, no. 5 ence, Fairness, Effciency, and Professionalism (2009): 2107-2150. in the Adjudication of Removal Cases, (Wash- ington DC: ABA, 2010); Aspden, Evaluation of 172. For a discussion of the issues facing stateless the Solihull Pilot (see n. 52). persons see Equal Rights Trust Unravelling Anomaly (see n. 33). 162. Rutgers School of Law - Newark Immigrant Rights Clinic and American Friends Service 173. For an in-depth description of this program see Committee, Freed But Not Free (see n. 53). Edwards Back to Basics (see n 17); Field and Edwards Alternatives to Detention, 85-89 (see 163. Telephone interpretation services are available n. 49). in some countries. For instance, a number of companies provide telephone interpretation 174. Edwards Back to Basics (see n 17). services in Australia. This is especially useful when there are a small number of bilingual 175. Edwards Back to Basics (see n 17). speakers for a particular language and for those 176. Email from the Director of the Toronto Bail in rural areas. Telephone interpretation is not Project 30.07.2015. On fle with the IDC. ideal but it does improve communication and reduce the reliance on informal interpreters, 177. European Union Agency for Fundamental such as family members. Rights, Handbook on European Law (see n. 169).

164. Coffey et al., “Meaning and Mental Health Conse- 178. For instance, Australia has been found to be quences” (see n. 26). in breach of the right to be protected from arbitrary detention on at least fve occasions due 165. London Detainee Support Group, No Return, to its mandatory immigration detention laws. (see n. 27). In addition, No Release, No Reason Australian Human Rights Commission, Migration

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Laws Must Live up to Australia’s Human Rights www.cic.gc.ca/english/resources/manuals/enf/ Commitments, Media release, August 6th 2006, enf20-eng.pdf http://www.humanrights.gov.au/about/media/ media_releases/2006/59_06.htm 189. Lutheran Immigration and Refugee Service, Unlocking Liberty: A Way Forward for U.S. Immi- 179. International Organization for Migration, gration Detention Policy, (Baltimore, MD: LIRS, National Referral Mechanism (NRM) for the 2011) 19. Protection of Vulnerable Migrants in Zambia, (IOM, undated), https://www.iom.int/fles/live/ 190. LIRS, “Unlocking Liberty”, 19 (see n. 189). sites/iom/fles/Country/docs/National-Referral- 191. Mark Noferi and Robert Koulish, “The Immigra- Mechanism-NRM-for-the-Protection-of-Vulner- tion Detention Risk Assessment,” Georgetown able-Migrants-in-Zambia.pdf Immigration Law Journal 29 Advanced Access 180. International Organization for Migration, Guide- (2015): 45-93; Sampson and Mitchell, “Global lines: Protection Assistance for Vulnerable Trends” (see n. 8). Migrants in Zambia. (IOM Development Fund 192. Jesuit Refugee Service Europe, Becoming and the European Union, undated), http://www. Vulnerable in Detention: Civil Society Report iom.int/fles/live/sites/iom/fles/Country/docs/ on the Detention of Vulnerable Asylum Seekers Guidelines_Protection-Assistance-for-Vulner- and Irregular Migrants in the European Union, able-Migrants.pdf (Brussels: JRS Europe, 2010). 181. International Organization for Migration, Guide- 193. Lynn Gillam, “Ethical Considerations in Refugee , Annex 1 (see n. 180). lines Research: What Guidance do Australia’s 182. International Organization for Migration, Training Research Ethics Documents Have to Offer?” Manual (Facilitator’s Guide): Protection Assis- Paper presented at Researching Refugees and tance for Vulnerable Migrants in Zambia, (IOM, Asylum Seekers: Ethical Considerations at the undated), https://www.iom.int/fles/live/sites/ University of Melbourne, 17th November 2010; iom/fles/Country/docs/Manual-Protection- JRS Europe, Becoming Vulnerable in Detention Assistance-for-Vulnerable-Migrants.pdf; Inter- (see n. 192). national Organization for Migration, Participant 194. Article 17.1 of the EU Council of Ministers’ Handbook: Training on Protection Assistance for Directive 2003/9/EC Laying Down Minimum Vulnerable Migrants in Zambia, (IOM, undated), Standards for the Reception of Asylum Seekers http://www.iom.int/fles/live/sites/iom/fles/ in Member States (Offcial Journal of the Country/docs/Participants-Handbook-Protec- European Union L 31/20, 6 February 2003) lists tion-Assistance-for-Vulnerable-Migrants.pdf the following vulnerable groups: “minors, unac- 183. Kathleen King and Peter Vodicka, “Screening companied minors, disabled people, elderly for Conditions of Public Health Importance in people, pregnant women, single parents with People Arriving in Australia by Boat without minor children and persons who have been Authority,” eMJA 175 (2001): 600-02. subjected to torture, rape or other serious forms of psychological, physical or sexual violence” 184. For a discussion of the issues of the deportation (Art. 17.1). of individuals with a serious illness see Sampson, Correa-Velez and Mitchell Removing Seriously Ill 195. We note the age of an ‘elder’ in many countries Asylum Seekers (see n. 30). of origin can be much lower than the age associated with being elderly in destination countries: 185. Interview in Sweden. Rebecca Atwell, Ignacio Correa-Velez, and Sandra M. Gifford, “Ageing out of Place: Health 186. Godfried Engbersen and Dennis Broeders, “The and Well-Being Needs and Access to Home and Fight against Illegal Migration: Identifcation Aged Care Services for Recently Arrived Older Policies and Immigrants’ Counterstrategies,” Refugees in Melbourne, Australia,” International American Behavioral Scientist 50, no. 12 (2007): Journal of Migration, Health and Social Care 3, 1592-609. no. 1 (2007): 4-14.

187. Costello and Kaytaz Building Empirical Evidence 196. In Canada, offcers are instructed to consider (see n. 49); Ilan Katz Abigail Powell, Sandra alternatives to detention and ensure detention Gendera, Tricia Deasy, and Erik Okerstrom, is avoided or considered as a last resort for the The Experiences of Irregular Maritime Arrivals elderly: Citizenship and Immigration Canada, Detained in Immigration Detention Facilities: ENF 20, Section 5.13 (see n. 188). Final Report - SPRC Report 11/13, (Sydney: Social Policy Research Centre, University of New South 197. Laurel Anderson, “Punishing the Innocent: Wales and Australian Survey Research Group, How the Classifcation of Male-to-Female 2013). Transgender Individuals in Immigration Detention Constitutes Illegal Punishment under 188. Citizenship and Immigration Canada, ENF 20: the Fifth Amendment,” Berkeley Journal of Detention. (CIC, 2007), Section 5.8 http:// Gender, Law & Justice 25, no. 1 (2010): 1-31.

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198. Interview in the United States. 210. Cécile Rousseau, Marie-Claire Rufagari, Déogra- tias Bagilishya, and Toby Measham, “Remaking 199. Department of Immigration and Citizenship, Family Life: Strategies for Re-Establishing Conti- Fact Sheet 64: Community Assistance Support nuity among Congolese Refugees During the Program. (Canberra: DIAC, 2009). Family Reunifcation Process,” Social Science & Medicine 59, no. 5 (2004): 1095-1108; Brooke 200. International Detention Coalition, Legal Wilmsen and Sandra Gifford, Refugee Resettle- Framework and Standards (see n. 114). ment, Family Separation and Australia’s Humani- 201. Eduardo Arboleda, “Refugee Defnition in Africa tarian Programme, (Geneva: UNHCR, 2009). and Latin America: The Lessons of Pragmatism,” 211. This is a factor in decisions to release in the Int J Refugee Law 3, no. 2 (1991): 185-207. United States (Box 12), Hong Kong (Box 14) and 202. Instead, they are to be placed by the Ministry Canada (Box 25). This is reinforced by claims of Family and Social Policies in accommoda- that it is easier, for the purposes of deportation, tion facilities in the care of their adult relatives to locate a person who entered a country legally or in the care of a foster family (upon taking because of ongoing participation in estab- into account the opinion of the unaccompanied lished structures of society: Gibney and Hansen, minor). Unaccompanied minors over the age of Deportation and the Liberal State (see n. 27). 16 can be placed in reception centers. 212. As one study of recidivism amongst foreigners 203. UNHCR, Refugee Protection and Mixed found: “The fndings do not lend support to the Migration: The 10-Point Plan of Action, (Geneva: arguments that removable aliens pose a dispro- UNHCR, 2012). portionate risk of repeat involvement in local criminal justice systems.” Jennifer S. Wong, 204. Field and Edwards Alternatives to Detention, Laura J. Hickman, and Marika Suttorp-Booth, 248 (see n. 49). “Examining Recidivism among Foreign-Born Jail Inmates: Does Immigration Status Make a 205. Coffey et al., “Meaning and Mental Health Difference over the Long Term?” Global Crime Consequences” (see n. 26); Eagar et al., Health (2015): 17. in Immigration Detention (see n 41); Jesuit Refugee Service Europe, Becoming Vulnerable in 213. As described in Section 2.5.2. Detention (see n. 192). 214. As described in Section 2.5.2. 206. Equal Rights Trust Unravelling Anomaly (see n. 33); A Face to the Story, Point of No Return: 215. Disparities in the adjudication of refugee and The Futile Detention of Unreturnable Migrants, visa cases is well documented. Alongside (Brussels: Flemish Refugee Action (Belgium), regular training and review of decision makers, Detention Action (UK), France terre d’asile legal advice for applicants is a key factor for (France), Menedék – Hungarian Association for promoting accurate and consistent decisions Migrants, and ECRE, 2014), http://pointofnore- across decision makers: Jaya Ramji-Nogales, turn.eu/wp-content/uploads/2014/01/PONR_ Andrew I. Schoenholtz, and Philip G. Schrag, report.pdf “Refugee Roulette: Disparities in Asylum Adju- dication,” Stanford Law Review 60, no. 2 (2007): 207. Sullivan et al., “Testing Community Supervision,” 295(117). 30 (see n. 52); Field and Edwards Alternatives to Detention, 25 (see n. 49). 216. Hotham Mission Asylum Seeker Project, Providing Casework (see n. 107); Sampson, 208. Field and Edwards Alternatives to Detention, Correa-Velez and Mitchell Removing Seriously Ill 27 (see n. 49); Jesuit Refugee Service Europe, Asylum Seekers (see n. 30). Alternatives to Detention of Asylum Seekers: Working Paper, (Brussels: JRS Europe, 2008) 11. 217. Information in this break out box is from interviews and site visits, with further references as 209. For instance, the Hong Kong government lists noted. Detention policy has been infuenced a lack of family or community ties as a factor heavily by decisions handed down in the cases which might increase the likelihood of detention: A, F, AS and YA v Director of Immigration “The detainee does not have fxed abode or [2008] HKCU 1109 (CACV 314-317 of 2007, 18 close connection (e.g. family or friends) in Hong July 2008) and Hashimi Habib Halim v Director Kong to make it likely that he/she will be easily of Immigration [2008] HKCU 1576 (HCAL 139 of located”. Security Bureau Immigration Depart- 2007, 15 October 2008). For a discussion, see ment, Detention Policy, (Hong Kong SAR: The Daly, “Refugee Law in Hong Kong” (see n. 121). Government of the Hong Kong Special Admin- istrative Region, undated). Also evidenced in 218. Security Bureau Immigration Department, factors infuencing decisions to release on bond: Detention Policy, (see n. 208). Field and Edwards Alternatives to Detention, 219. Hong Kong SAR has introduced a specifc 206 UK and 225 USA (see n. 49). process for migrants to apply for protection

96 THERE ARE ALTERNATIVES (REVISED EDITION)

from torture. See Daly, “Refugee Law in Hong calculated at $38.30, excluding case manage- Kong” (see n. 121). ment costs. Joint Standing Committee on Migration, “Inquiry into Immigration Detention, 220. Edwards Back to Basics (see n 17). 122 (see n. 74). We have reported the cost of detention as used for detention debts. Joint 221. Hotham Mission Asylum Seeker Project, Standing Committee on Migration, Inquiry Providing Casework (see n. 107); International into Immigration Detention in Australia: A New Detention Coalition, Case Management as an Beginning. First report: Criteria for Release Alternative (see n. 53). from Detention, (Canberra: Commonwealth of 222. Adapted from Case Management Society of Australia, 2008) 112. Australia, What is Case Management? (CMSA, 231. Department of Immigration and Citizenship undated) http://www.cmsa.org.au/defnition. 168 (See n. 73). html ; Sheldon Gelman and Arthur J. Frankel, Annual Report 2009-2010, Case Management: An Introduction to Concepts 232. The International Organization for Migration has and Skills, (Chicago, Ill: Lyceum Books, 2004). found that “additional ‘investment’ by returning states in reintegration support in countries of 223. Hotham Mission Asylum Seeker Project, origin is likely to render the return most sustain- Providing Casework (see n. 107). For a descrip- able with fow-on benefts such as encouraging tion of the role of a case manager in a migration other irregular migrants to return home volun- context, see Box 15 Case Studies. tarily and incentivizing returnees to stay home.” 224. Hotham Mission Asylum Seeker Project, International Organization for Migration: Return Providing Casework (see n. 107). For an example Migration: Policies and Practices in Europe, of its use by an immigration authority, see (Geneva: IOM, 2004) 7. Department of Immigration and Multicultural 233. Information in this break out box is from inter- Affairs, Case Management in DIMA, (Canberra: views and further references as noted. DIMA, n.d.). 234. Sullivan et al., “Testing Community Supervision,” 225. Case study provided to researchers by an expert 16 (see n. 52). involved in this case. A pseudonym has been used. 235. Field and Edwards Alternatives to Detention, 92 (see n. 49). 226. Case study provided by one of the researchers who was personally involved in the resolution of 236. Hotham Mission Asylum Seeker Project, this case. A pseudonym has been used. Providing Casework (see n. 107); c.f. The Centre for Social Justice, Asylum Matters: Restoring 227. See also Sebastian Sunderhaus, Regularization Trust in the UK Asylum System. (London: The Programs for Undocumented Migrants: Working Centre for Social Justice, 2008) 4. paper 142, (Koln/New York: The Center for Comparative Immigration Studies, 2006) http:// 237. Information in this break out box is from inter- ccis.ucsd.edu/wp-content/uploads/WP_142.pdf views, site visits and further references as noted.

228. The Department of Immigration and Border 238. Families who do not fall within this criteria are Protection will refer individuals to the SRSS provided with accommodation for a limited program by ‘bands’; individuals will then be period in an open return centre established eligible for services based on the band they in 2013 in the town of Holsbeek. The facility is are in. For an overview of the different bands jointly managed by FEDASIL and the Immigra- and services provided, see Australian Red tion Offce and during their stay, families are Cross, Addressing the Humanitarian Needs counselled on the possibility of either obtaining of Migrants in Transition: Status Resolution a residence permit or voluntary return to their Support Overview, (Australian Red Cross, country of origin. See European Migration undated) http://refugeehealthnetwork.org. Network, Focused study of Belgium (see n. 77). au/wp-content/uploads/Red-Cross-SRSS- overview1.pdf; Adult Multicultural Education 239. UNHCR, Alternatives to the Detention of Asylum- Services, Status Resolution Support Services Seekers in Belgium. (Brussels: UNHCR, 2011) 14, (SRSS) – Overview, (AMES, 2014), http://refu- http://www.unhcr.be/fleadmin/user_upload/ geehealthnetwork.org.au/wp-content/uploads/ pdf_documents/UNHCR-alternatives_to_Deten- AMES-SRSS-Overview.pdf tion-Roadmap-Belgium-ENG-screen.pdf

229. Department of Immigration and Citizenship, 240. UNHCR, Alternatives in Belgium 14 (see n. 238). Community Care Pilot (see n. 52). 241. Pieter Stockmans, “Return Homes as an Alter- 230. These costs have been calculated as follows: native to Detention,” Presentation at the Expert The Community Care Pilot cost $5.6 million for Meeting on Detention in the Framework of the 2008/9 with a maximum of 400 people in the Eastern Partnership Panel on Migration and pilot during this period: the average daily cost is Asylum, Chisinau, Moldova. 26-27 March 2014.

97 THERE ARE ALTERNATIVES (REVISED EDITION)

242. UNHCR, Alternatives in Belgium 14 (see n. 238). gration/549_emn_ahq_on_implementing_ tolerated_stay_03072014_en.pdf 243. US Citizenship and Immigration Services Questions and Answers: Victims of Human Traf- 254. Cragg and Martens, Rights, Residence and Reha- fcking, T Nonimmigrant Status. (Washington, bilitation, 132 (see n. 244). D.C: US Citizenship and Immigration Services, 2010). 255. United Nations Offce on Drugs and Crime, Toolkit to Combat Traffcking in Persons, 244. Sarah Craggs and Ruzayda Martens, Rights, (Geneva: UNODC, 2008) 326. Residence and Rehabilitation: A Comparative Study Assessing Residence Options for Traf- 256. As discussed in Section 7, a robust case fcked Persons, (Geneva: IOM, 2010) 67. management system and regular engagement with caseworkers help ensure that individ- 245. This information was provided to the Interna- uals are better supported and managed in the tional Detention Coalition by a regional expert, community to achieve case resolution. with further references as noted. 257. Sections 57 and 127 of Brazil’s Law No. 6,815 246. UNHCR, High Commissioner’s Dialogue on of August 19, 1980, the Foreigner’s Statute Protection Challenges: Breakout Session 1: (Estatuto do Estrangeiro). Gaps in the International Protection Framework and in Its Implementation 8-9 December, 258. Information in this break out box is from inter- (Geneva: UNCHR, 2010) http://www.unhcr. views and site visits, with further references as org/4d09e47a9.pdf noted. Further information available at http:// www.migrationsverket.se/info/skydd_en.html 247. Foreign Ministry of Argentina, Informe elaborado en cumplimiento de la A/RES/67/172: La 259. Grant Mitchell, “Asylum Seekers in Sweden,” perspectiva de derechos humanos en el tratami- (August 2001) http://www.fabian.org.au/940. ento de la cuestión migratoria en la República asp , (FMA, 2013). Argentina 260. Of 19,905 third country nationals ordered 248. P.A.R. “Migration through Morocco: No Way to leave, 12,988 returned voluntarily and 614 Forward or Back,” The Economist, February 11th, returned through an Assisted Voluntary Return 2014, http://www.economist.com/blogs/pome- program. European Migration Network, “Country granate/2014/02/migration-through-morocco Factsheet: Sweden 2012,” (EMN, 2012) 6, http:// ec.europa.eu/dgs/home-affairs/what-we- 249. IRIN, “Morocco: The Forgotten Frontline of the do/networks/european_migration_network/ Migrant Crisis,” July 29th, 2015, http://allafrica. reports/docs/country-factsheets/sweden- com/stories/201507301776.html emn-ountry-facthseet_en.pdf.

250. Centre for Equal Opportunities and Opposi- 261. Grant Mitchell, Asylum Seekers in Sweden: An tion to Racism, Annual Report on Migration, Integrated Approach to Reception, Detention, (Brussels: CEOOR, 2013) 118. Determination, Integration and Return, (2001), http://idcoalition.org/asylum-seekers-in- 251. Isabelle Johansson, Particularly Distressing sweden/ Circumstances: Regularization and Employment in Sweden, REGAINE Assessment Report (Inter- 262. Franck Düvell, “Transit Migration: A Blurred and national Centre for Migration Policy Develop- Politicised Concept,” Population, Space and ment, 2014) 17-18. Place 18, no. 4 (2012): 415-427; Aspasia Papa- dopoulou-Kourkoula, Transit Migration: The 252. Article 2 of Act II of 2007 states that “exile” Missing Link between Emigration and Settlement means any person who is provided temporary (Basingstoke: Palgrave Macmillan, 2008). shelter and may not be returned to the country of his/her nationality, or in the case of a stateless 263. There is now large-scale economic and political person, to the country of domicile, for fear of investment by the European Union in the ability being subjected to capital punishment, torture of its nearest neighbours to halt the travel of or any other form of cruel, inhuman or degrading migrants, including in Eastern Europe, Turkey treatment, and there is no safe third country and northern Africa. The United States has offering refuge, and who is not entitled to also taken such measures to reduce migration asylum or treatment as a stateless person, nor to through Mexico and other Latin American any subsidiary form of protection or temporary countries, while Australia has invested in such protection”. intervention in Indonesia. See Jason De León, “The Effcacy and Impact of the Alien Transfer 253. European Migration Network, “Ad-Hoc Query Exit Programme: Migrant Perspectives from on Implementing Tolerated Stay,” (EMN, 2014), Nogales, Sonora, Mexico,” International Migration http://ec.europa.eu/dgs/home-affairs/what-we- 51, no. 2 (2013): 10-23; Raül Hernández i Sagrera, do/networks/european_migration_network/ “Exporting EU Integrated Border Manage- reports/docs/ad-hoc-queries/illegal-immi- ment Beyond EU Borders: Modernization and

98 THERE ARE ALTERNATIVES (REVISED EDITION)

Institutional Transformation in Exchange for 273. Banki and Katz, Resolving Immigration Status More Mobility?” Cambridge Review of Inter- Part 2, 102 (see n. 70); Field and Edwards, Alter- national Affairs 27, no. 1 (2014): 167-83; Kemal natives to Detention, 47 (see n. 49). Kirisci, “Reconciling Refugee Protection with Efforts to Combat Irregular Migration: The Case 274. Edwards, Back to Basics (see n 17). of Turkey and the European Union,” In Global 275. See Article 46 of the Venezuelan Immigration , edited by Jeff Crisp and Migration Perspectives Law and Migration No. 37.944 of 24 May, 2004. Khalid Koser, (Geneva: Global Commission on International Migration, 2004); Amy Nethery 276. Banki and Katz, Resolving Immigration Status and Stephanie J. Silverman, eds. Immigra- Part 2, 14-16 (see n. 70); Field and Edwards, tion Detention: The Migration of a Policy and Its Alternatives to Detention, 45 (see n. 49). Human Impact, (Ashgate: Routledge, 2015); Amy Nethery, Brynna Rafferty-Brown, and Savitri 277. Field and Edwards, Alternatives to Detention, 35 Taylor, “Exporting Detention: Australia-Funded (see n. 49). Immigration Detention in Indonesia,” Journal 278. Field and Edwards, Alternatives to Detention, 30 of Refugee Studies (2012) doi: 10.1093/jrs/ (see n. 49). fes027; Florian Trauner and Stephanie Deimel, “The Impact of EU Migration Policies on African 279. Field and Edwards, Alternatives to Detention, 35 Countries: The Case of Mali,” International (see n. 49). Migration 51, n. 4(2013): 20-32. 280. Pursuant to section 48(2) of Hungary’s of 264. Papadopoulou-Kourkoula, Transit Migration (see Hungary’s Act II of 2007 on the Admission and n. 262). Rights of Residence of Third-Country Nationals

265. Antje Missbach, “Making a “Career” in People- 281. Field and Edwards, Alternatives to Detention, 35 Smuggling in Indonesia: Protracted Transit, (see n. 49). Restricted Mobility and the Lack of Legal Work Rights,” Sojourn: Journal of Social Issues in 282. We have not come across any examples of Southeast Asia 30, no. 2(2015): 423-454. authorities using new communication technolo- gies such as email, SMS/text messages, Skype 266. MHub Detained Youth (see n. 111). or web-based log in for reporting purposes. This may be worth further exploration, as it has the 267. Information provided to the IDC by a national potential to increase contact with authorities expert. while limiting impositions on daily life. 268. This was evident in Hungary, Hong Kong and 283. “Persons released to [the Toronto Bail Project] Spain. Unfortunately, there is very little research are initially required to report twice weekly establishing the effectiveness of community to the offces of TBP in downtown Toronto. management options in ‘transit’ countries. Some Reporting requirements are softened as trust research points to the ways ‘transit’ countries develops between the two parties and there are are actually destination countries for many no lapses in reporting.” Edwards, Back to Basics, people: de Haas, “Irregular Migration from West 58 (see n 17). Africa,” (see n. 109). 284. Rutgers School of Law - Newark Immigrant 269. Joe Biden, “A plan for Central America,” The Rights Clinic and American Friends Service New York Times, January 29th 2015, http://www. Committee, Freed But Not Free, 16 (see n. 53). nytimes.com/2015/01/30/opinion/joe-biden-a- plan-for-central-america.html 285. Information in this break out box is from De Bruycker, “Alternatives in the EU,” 129 (see n. 75), 270. Mana Rabiee, “Greece pledges to shut immi- with further references as noted. gration detention centers,” Reuters U.S., February 14th 2015, http://www.reuters.com/ 286. Information obtained during feldwork. video/2015/02/14/greece-pledges-to-shut- immigrant-detenti?videoId=363197263 287. Information in this break out box based on Sullivan et al., “Testing Community Supervision” 271. Karolina Tagaris, “Greece pledges to shut (see n. 52). immigration detention centers.” Reuters U.K. February 14th 2015. http://uk.reuters.com/ 288. Unlike bond or bail programs, there were no article/2015/02/14/uk-greece-politics-immi- fnancial consequences for the guarantor upon grants-idUKKBN0LI0Q720150214 non-compliance in this program.

272. UNHCR, “UNHCR Welcomes the Envisaged 289. A detailed breakdown of cost outcomes is found Changes in the Administrative Detention of Third at Sullivan et al., “Testing Community Supervi- Country Nationals” Press release, February 19th, sion,” 64-69 (see n. 52). 2015 http://www.unhcr.gr/nea/artikel/24dcef5d 13ebd29a1559fc4d7339ad10/unhcr-welcomes- the-envisaged-changes.html

99 290. Field and Edwards, Alternatives to Detention, 45 (see n. 49) also recommend further research in this area.

291. It is important to be aware that some detainees may be exploited if they become indebted to unscrupulous guarantors.

292. Information in this break out box is from Edwards, Back to Basics (see n 17) and other references as noted.

293. Citizenship and Immigration Canada, ENF 20 (see n. 188).

294. Community Legal Education Ontario, Being Arrested and Detained for Immigration Reasons, (CLEO, 2008), http://www.cleo.on.ca/english/ pub/onpub/PDF/immigration/arrdetim.pdf

295. As discussed in Section 1.3.2. See also Costello and Kaytaz, Building Empirical Evidence (see n. 49); London Detainee Support Group, No Return, No Release, No Reason (see n. 27).

296. For a discussion on issues of sustainable return see Ruerd Ruben, Marieke Van Houte, and Tine Davids. “What Determines the Embeddedness of Forced-Return Migrants? Rethinking the Role of Pre- and Post-Return Assistance.” International Migration Review 43, no. 4 (2009): 908-37.

297. APT, IDC and UNHCR, Monitoring Immigration Detention (see n. 2).

298. Department Order No. 94/1998, Establishing a Procedure for Processing Applications for the Grant of Refugee Status [Philippines], 4 March 1998, http://www.unhcr.org/refworld/ docid/3ede2d914.html

299. Information in this break out box based on the expert knowledge of staff of the Interna- tional Detention Coalition, and from Depart- ment of Immigration and Citizenship, Fact Sheet 85: Removal Pending Bridging Visa, (Canberra: DIAC, 2007).

300. Information provided to the IDC by a national expert.

301. Electronic monitoring has been used in migration matters primarily in the USA: Field and Edwards, Alternatives to Detention, 36-38 (see n. 49).

302. Information in this break out box is from interviews and site visit. Further information available at http://www.migrationsverket.se/info/skydd_ en.html

303. Committee for the Prevention of Torture, Report to the Swedish Government on the Visit to Sweden Carried Out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 18 June 2009, http://www.cpt.coe.int/ documents/swe/2009-34-inf-eng.pdf