Tuesday, September 25, 2012
The United Nations High Commissioner for Refugees (UNHCR) issued new guidelines yesterday concerning the detention of asylum seekers while they are waiting for their cases to be adjudicated. The guidelines were issued in response to a growing number of applications from asylum seekers worldwide (over 440,000 in 2011) and increasing concerns that countries are frequently detaining asylum seekers as opposed to considering other alternatives to prevent fraud and to ensure that asylum seekers appear for their hearings. The new Detention Guidelines are intended to "guide governments in their elaboration and implementation of asylum and migration policies which involve an element of detenion, and decision-makers, including judges, in making assessments about the necessity of detention in individual cases."
The UNHCR begins by stating that detention of asylum-seekers "should be avoided and be a measure of last resort. . . . Detention can only be applied where it pursues a legitimate purpose and has been determined to be both necessary and proportionate in each individual case."
Among other things, the Detention Guidelines state that detention must not be arbitrary and that any decision to detain must take into account the following prinicples: detention is an exceptional measure that must be justified for a legitimate purpose; detention can only be resorted to when it is determined to be necessary, reasonable and proportionate to a legitimate purpose; and that alternatives to detention need to be considered.
The new guidelines urge countries to consider alternatives to detenion such as deposit or surrender of documentation, periodic reporting to authorities, directed residence or residence at free-movement asylum centers, bail or bond requirements, and community supervision arrangements.
In the United States, asylum seekers are routinely detained pending their hearings. They are usually detained in facilities along with detainees with criminal records and are subject to the same restrictions on their liberty as criminal defendants. It is long past time for the United States to examine its detention policy with respect to asylum seekers and bring it into conformity with international law.
The new guidelines may be found here.