Legal Detention of Immigrants and Refugees

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

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

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

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

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

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

Unlawful Practices of Detention

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

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

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

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

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

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

In a number of national and regional legal systems, detention is<span class="span"><span id=hint class="box-source">only allowed</span><div class="popover">Source:<br><br><div>European Court of Human Rights. Guide on Article 5 of the European Convention on Human Rights: right to liberty and security. 2022.</div><br><br><div>—</div><div>Government of the Netherlands. Aliens detention.</div></div></span>as a last resort. Alternatives must first be exhausted before the detention is ordered unless such alternatives cannot be applied effectively in the individual case. Cases like this might<span class="span"><span id=hint class="box-source">include</span><div class="popover">Source:<br><br><div>European Parliament. Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. 2008.</div><br><br><div>—</div><div>European Parliament. Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection. 2013.</div><br><br><div>—</div><div>European Parliament. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. 2013.</div></div></span>if a person lies about their identity, has used drugs, or has absconded in the past without returning to their home country. 

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

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

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

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

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