What is immigration detention?

What is immigration detention?

Immigration detention is where a person is detained because he or she is found to be an “‘unlawful non-citizen’ (a national from another country without a valid visa) in Australia's migration zone.” People are detained unless they are eligible for and can be granted a bridging visa until their status is resolved.  Since 1992 in Australia, this form of detention has been mandatory.  Mandatory detention originally had a limit of 273 days but the limit was removed in 1994, making the mandatory, immigration detention indefinite.

What does the United Nations (UN) say about immigration detention?

At the forefront of the message regarding immigration detention, from the United Nations High Commissioner for Refugees (UNHCR), is that the right of an individual to seek asylum must be respected and protected.  Under Article 14 of the Universal Declaration of Human Rights “Everyone has the right to seek and to enjoy in other countries asylum from persecution”.

The United Nations representative for refugees, the UNHCR, recommends that people seeking asylum are not detained and alternatives to monitoring the people seeking asylum are used.

Where immigration detention is used, the UNHCR offers 10 guidelines as follows:

  1. The right to seek asylum must be respected.
  2. The rights to liberty and security of person and to freedom of movement apply to asylum-seekers.
  3. Detention must be in accordance with and authorised by law.
  4. Detention must not be arbitrary, and any decision to detain must be based on an assessment of the individual’s particular circumstances, according to the following:

4.1 Detention is an exceptional measure and can only be justified for a legitimate purpose.

4.2 Detention can only be resorted to when it is determined to be necessary, reasonable in all the circumstances and proportionate to a legitimate purpose.

4.3 Alternatives to detention need to be considered.

  1. Detention must not be discriminatory.
  2. Indefinite detention is arbitrary and maximum limits on detention should be established in law.
  3. Decisions to detain or to extend detention must be subject to minimum procedural safeguards.
  4. Conditions of detention must be humane and dignified.
  5. The special circumstances and needs of particular asylum-seekers must be taken into account.
  6. Detention should be subject to independent monitoring and inspection.

In a submission to the Parliament of the United Kingdom, UNHCR summarised its position on immigration detention as follows: 

“In summary, UNHCR’s position is that the detention of asylum-seekers should normally be avoided and be a measure of last resort.  According to international law, the detention of asylum-seekers is justified only as far as it is determined to be necessary and proportionate for the pursuit of a legitimate purpose in each individual case.  While liberty must always be considered, alternatives to detention are part of the necessity and proportionality assessment of the lawfulness of detention.  Appropriate screening/detention review mechanisms need to be in place.  The detention of asylum-seekers should be regulated by law, carefully circumscribed, and subject to prompt and periodic review.”

Without question, any period of detention should be predetermined in length and prescribed by law.  Arbitrary, indefinite detention should never be imposed.

How does Australia perform based on the United Nations recommendations?

Australia does not perform very well in relation to the UN recommendations.  The recommendations hinge on the idea that a person has the right to seek asylum regardless of how they arrive in a country.  Australia discriminates based on a person’s method of travel, it subjects some people seeking asylum to mandatory detention which is indefinite and, due to the arbitrary, indefinite nature of the detention, the detention is neither humane nor dignified.  Also, in some cases Australia abdicates its responsibility to those seeking asylum at its shores to other nations.  These are nations that are ill equipped to manage the task Australia has passed to them.

What are the alternatives to immigration detention?

To immigration detention, there are many alternatives according to the UNHCR.  These include:

  • surrendering of identification documents to authorities,
  • mandatory reporting by seekers of asylum to local authorities,
  • directed residence (residing at an agreed address without permission to move until refugee status is established), residing in open facilities where person is free to move into community during the day and a curfew is imposed,
  • person provides a guarantor who will assume responsibility for making sure the seeker of asylum attends meetings and/or hearings and abides by regulations until refugee status is determined,
  • release on bail or bond, and
  • community release and supervision.

Is immigration detention legal?

It is legislated under Australian law that there is mandatory detention of unlawful non-citizens, unless they can apply for a bridging visa, until their situation is resolved.  This avenue is not available to people who are seeking asylum and arrive by boat.

According to the Kaldor Centre for International Refugee Law at the University of New South Wales, Australia’s mandatory detention regime is not consistent with international refugee law. The full text of this explanation can be found at: http://www.kaldorcentre.unsw.edu.au/publication/immigration-detention#alternatives

What do other countries do?

It is important to note that “Australia is still the only country where immigration detention is mandatory for all unlawful non-citizens (including asylum seekers).” While other countries have some detention regimes, in practice they are typically of short duration for the purposes of identity and health checks. 

No two countries respond to people seeking asylum in the same way.  This is principally due to the differing circumstances of each nation on issues such as accessibility by land and/or sea, broader immigration policies and outcomes, population, number of people seeking asylum and so on.

Most countries have some sort of immigration detention regime.  The UNHCR recommends all countries find alternatives to detention and is in the process of promoting its Global Strategy – Beyond Detention 2014-2019 a project to end detention of seekers of asylum and refugees.  So far, the strategy has been rolled out in 12 focus countries with three main aims:

  1. “to end detention of children
  2. to ensure that alternatives to detention are available in law and implemented in practice
  3. to ensure that conditions of detention, where detention is necessary and unavoidable, meet international standards by, inter alia, securing access to places of immigration detention for UNHCR and/or its partners and carrying out regular monitoring.”

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