Respecting the right to seek and enjoy asylum involves establishing open and humane reception arrangements and ensuring safe and dignified treatment to all persons in need of international protection. Consistent with international refugee and human rights law and standards, therefore, alternatives to detention should always be considered prior to resorting to detention.
While there is no internationally agreed definition of the term ‘alternatives to detention,’ and as it is not a legal term in itself, UNHCR defines alternatives to detention as any legislation, policy, or practice that allows asylum-seekers to reside in the community, subject to a number of conditions or restrictions on their freedom of movement. As some alternatives to detention also involve various restrictions on movement or liberty (and some can be classified as forms of detention), they are also subject to human rights standards.
The use of alternatives to detention for asylum-seekers will be only relevant where there is a legitimate purpose (or ground) to impose a detention measure in the individual case, in the first place. Otherwise, the imposition of such alternative measures would become arbitrary. Alternatives to detention should not be used as alternative forms of detention; nor should alternatives to detention become alternatives to release; nor should they become substitutes for open reception arrangements that may or may not involve conditions or restrictions on the freedom of movement of asylum-seekers.
The consideration of alternatives to detention is part of an overall assessment of the necessity, reasonableness and proportionality of detention. It must be shown that in light of the asylum-seeker’s particular circumstances, there were not less invasive or coercive means of achieving the same ends. Such consideration ensures that detention of asylum-seekers is a measure of last, rather than first, resort.
There is a range of good State practices of successful alternatives to detention. Some of the most effective alternatives to detention are set out below:
- Deposit or surrender of documentation: A common alternative, used by many States, is to require asylum-seekers to surrender travel or identity documentation (such as passports) to minimize the risk of onward movement.
- Reporting: This consists of an obligation to present oneself to the designated authorities (usually migration officials or the police) at periodic intervals.
- Use of a designated or directed residence: This requires asylum-seekers to reside at a specific address or within a particular administrative region.
- Alternatives based on bail or bond: Bail or bond systems typically require a financial deposit that may be forfeited in the event the individual absconds. However, such systems tend to discriminate against persons with limited funds, or those who do not have connections in the community, as may be the case for many asylum-seekers. Efforts to minimize these disadvantages are encouraged.
- Community supervision and case management: There is a range of options that can permit individuals and families to reside in the community, subject to supervision and/or case management. Living independently in the community is the preferred approach, to allow asylum-seekers and others to resume as far as possible “normal lives”.
- Child- and family-appropriate alternatives to detention: Various mechanisms for the release of unaccompanied and separated children into the community are available, including foster care, supervised independent living, group care, or, as a last resort, collective residential (institutional) care.