Refugees Magazine Issue 113 (Europe : The debate over asylum) - The debate over detention

Refugees (113, 1999)

Is detention of asylum seekers a necessary evil or a deliberate weapon of deterrence?

By Ray Wilkinson

"Freedom from detention is a fundamental human right" - UNHCR Guidelines on the Detention of Asylum seekers.

The moment 22-year-old Adem alighted from the Eurostar cross-channel train at London's Waterloo station he asked for political asylum, explaining to immigration officials he was fleeing from the fighting then raging in Kosovo. Concerned not to be considered a welfare 'scrounger' as many asylum seekers are portrayed in Britain these days, he said he was prepared to work to support himself while his application was considered. The reaction was not what he expected. He was promptly taken into custody.

Detention is one of the most controversial asylum issues in Europe today. Some governments use detention to control the movements of asylum seekers, both when they first arrive in a country and while their applications to stay are being considered and later, in the case of people whose claims have been rejected and are awaiting deportation. Critics argue they sometimes go further - employing the threat of incarceration to deter would-be refugees from seeking sanctuary in a particular country.

Detaining applicants when they first arrive is the most contentious of the two situations outlined above and is the subject of this report. Under what circumstances European governments wield this 'detention deterrent', how long claimants are held and in what type of conditions, vary widely from country to country, but there is one common thread - the number of detainees continent-wide has increased in the last decade.

UNHCR first documented this trend in 1995 in a comprehensive survey entitled "Widespread Recourse to Detention" and though accurate statistical data on the number of people held in custody is difficult to obtain, officials say the upward curve has continued in the last few years of the millennium.

"The number of people being detained is rising and the length of time they are held is also increasing," says one official. A 332-page book entitled Detention of Asylum Seekers in Europe: Analysis and Perspectives* comes to the same conclusion: "The reality in most European countries is that the use of detention has spread since the late 1980s."

A basic disagreement

Governments insist that even if detention is employed, it is kept to a minimum and is used primarily to stop asylum seekers from simply disappearing from the system or 'absconding.' Critics disagree. The 'Detention of Asylum Seekers' study says this official argument "has not been justified by studies on the rate of absconding" and suggests there are other motives behind these government actions: "The argument that a policy of non-detention would 'encourage' arrivals is tantamount to admitting that detention is used to deter arrivals.... Current trends would justify describing detention as an instrument of deterrence in its own right."

In Austria, for instance, one in every 10 asylum seekers are routinely held while their claims are assessed. In Britain anywhere between 750-850 people are held at any one time and last year a total of more than 7,000 people were held in custody for varying periods.

Some countries employ a sleight of hand, or sleight of word, in handling new arrivals. Germany holds potential asylum seekers at international airports until their claims are decided. Since the detainees are free to leave - but only back to the country they fled or arrived from - Germany argues this is not 'detention.' Critics say this is simply playing word games. The European Commission on Human Rights in 1993 ruled that four Somali nationals held at Paris-Orly airport in similar conditions (Amuur v France) had effectively been deprived of their liberty in contravention of the European Convention on Human Rights.

Arrivals in France are also "retained" rather than "detained" at airports, ports and train stations in special "waiting zones" for up to 20 days. Foreign affairs officials interview asylum seekers and the Ministry of Interior decides their cases. Since 1995, UNHCR and other humanitarian organizations have had access to the areas and UNHCR can interview asylum seekers.

In Belgium, asylum applicants without valid documents have been transferred to a special "extra territorial" detention facility at Steenokkerzeel where they remained legally outside the country and effectively in limbo.

Detention can be used widely, and sometimes indiscriminately in east European and Baltic countries. Until the last decade, they were traditional 'exporters' of refugees, but as the number of asylum seekers has increased they, too, face the dilemma of how to handle larger numbers of people wanting refuge.

A no nonsense attitude

In such circumstances states sometimes take a rough and ready approach - stopping undocumented asylum seekers at airports and ports and immediately shipping them out of the country before they can lodge asylum claims. One Middle Eastern claimant faced with immediate ejection from Hungary recently persuaded a fellow airline passenger to allow him to use his mobile phone to contact a humanitarian agency and eventually was allowed to file an asylum claim.

The length of stay and conditions inside detention centres also vary widely. In Britain, the average length of detention is 65 days. Because of a lack of specialized facilities, as many as 300 detainees on any given date are housed in regular prisons - often living in small two-person cells with no running water or toilets and locked up for 21 hours each day. Such an experience is a "grossly inappropriate and unsatisfactory sanction," according to Sir David Ramsbottom, Chief Inspector of Prisons. "Exposing detainees to custody alongside some elements of the prison population is not only a corrupting experience but cannot be justified on grounds of safety."

Refugee advocates say that physical discomfort is only part of the problem. Some facilities are in remote areas where it is difficult to have easy access to family, friends and legal advice. Detainees are often not told why they have been taken into custody in the first place, have little chance of overturning their incarceration and rarely given an indication when or if they might be released. "I fled from dictatorship and prison in my own country, and now I find myself in the same situation in England," one west African detainee complained recently to a visitor.

Legal tussles can last for years. In Russia, two years after lodging asylum applications, two Somalis were abruptly detained in 1996 and processed for deportation. Despite UNHCR's intervention and a ruling by the Russian Constitutional Court that effectively their detention was illegal, the Ministry of Interior refused to release them. After further intervention, the two were finally released in September, but they still face an uncertain future.

UNHCR recently updated its Guidelines on the Detention of Asylum Seekers in which it emphasises that "Detention of asylum seekers is ... inherently undesirable" especially in the case of vulnerable groups such as single women, children, unaccompanied minors and people in need of special care.

The 1998 guidelines are more comprehensive than earlier editions, covering such areas as the detention of women and children for the first time. Though UNHCR recognizes the problems governments are facing with large numbers of people seeking entry to Europe - both bona fide refugees and other migrants - the guidelines, nevertheless, underline that "detention should only be resorted to in cases of necessity" such as to protect national security.

It also suggests a series of "alternatives to detention" (see separate box) including the establishment of open centres in which asylum seekers would register and live but be allowed to leave freely during the day.

Scandinavian countries and Germany have successfully adopted such systems. And there are other encouraging developments. A draft White Paper on asylum and immigration which British Home Secretary Jack Straw said would be "faster, fairer and firmer" for asylum seekers addresses some problems which have given cause for concern in the past including the right to review a detention order and an undertaking not to detain unaccompanied minors. But the basic criteria for detaining have not changed, according to some officials and one said: "Faster, fairer and firmer ... but not at the expense of safe and just procedures."

Sweden raised the age at which young people could be detained, from 16 to 18 and in 1994 Luxembourg reduced the maximum length of detention from six months to one month.

Still, European countries continue to struggle with a basic dilemma: how to uphold their legal and moral obligations toward asylum seekers while satisfying public worries over immigration.

* Compiled by the European Council on Refugees and Exiles, the Danish Refugee Council and the Danish Centre for Human Rights.

ALTERNATIVES TO DETENTION

Detention should be a measure of last resort for newly arrived asylum seekers and in its latest guidelines UNHCR suggests the following alternatives:

• An asylum seeker could be allowed to live in the local community provided he or she reports periodically to an appropriate local authority.

• Alternatively, asylum seekers could be required to live at a specific address or within a particular administrative region pending their status determination.

• A guarantor could provide surety and be responsible for ensuring the appearance of the individual at appointments and hearings.

• Persons could be released on a "reasonable" bail.

• Asylum seekers could be housed in collective 'open centres' and allowed to leave during the day.

Source: Refugees Magazine issue 113 (1999)