Alternatives to Detention: A
Legal & Practical Necessity
Dr Cathryn Costello, BCL, LLM, BL
Refugee Studies Centre, Oxford
Presentation, IDC Conference, Brussels
27 March 2014
cathryn.costello@law.ox.ac.uk
OVERVIEW
I.
ATD as Legal Necessity
1. Refugee Convention
2.
3.
4.
ICCPR
ECHR
EU Law – recast RCD
II. ATD as practical necessity – Insights
from the Empirical Research
Sources


C Costello 'Human Rights & the Elusive
Universal Subject: Immigration Detention under
International Human Rights and EU Law ' (2012)
Indiana Journal of Global Legal Studies 257
Costello, C and Kaytaz, E ‘Building Empirical
Research into Alternatives to Detention:
Perceptions of Asylum-Seekers and Refugees in
Toronto and Geneva’, (2013) UNHCR Legal and
Protection Policy Research Series
www.refworld.org/docid/51a6fec84.html
I. INSIGHTS FROM
EMPIRICAL RESEARCH
Background to Empirical
Project
Aim: to understand the workings of ‘alternatives
to detention’ (ATDs) in Toronto, Canada, and
Geneva, Switzerland in particular by bringing to
bear the perspectives of those they affect most
directly, asylum-seekers, refugees and other
migrants.
Costello, C and Kaytaz, E ‘Building Empirical Research into
Alternatives to Detention: Perceptions of Asylum-Seekers and
Refugees in Toronto and Geneva’, (2013) UNHCR Legal and
Protection Policy Research Series
www.refworld.org/docid/51a6fec84.html
Literature on ATDs
 A. Edwards, ‘Back to Basics: The Right to Liberty and
Security of the Person and “Alternatives to Detention” of
Asylum-Seekers, Refugees, Stateless Persons and
Other Migrants’, UNHCR, April 2011
 R. Sampson et al., ‘There are Alternatives: A Handbook
for Preventing Unnecessary Immigration Detention’,
International Detention Coalition, 2011
 Jesuit Refugee Service (JRS) Europe, ‘From Deprivation
to Liberty. Alternatives to Detention in Belgium,
Germany and the United Kingdom’, December 2011
Literature on Regulatory
Compliance


T. Tyler, Why People Obey the Law
(Princeton: Princeton University Press, 2006).
D. Kirk, S. David, A. V. Papachristos, J.
Fagan, and T. Tyler ‘The Paradox of Law
Enforcement in Immigrant Communities:
Does Tough Immigration Enforcement
Undermine Public Safety?’ (2012) The
Annals of the Academy of Political and Social
Science, v641 n1: 79-98.
‘Workings’



Refugee perspective – secure access to
protection, fairness of RSD, supportive RC
Host community perspective – facilitate
integration of those who will stay, trust in
RSD and other governmental systems
State perspective – ensure asylum seekers
co-operate in RSD …
4 Key Subjective Factors mean
asylum seekers tend to be predisposed to be co-operative




the refugee predicament and fear of return;
inclination towards law-abidingness and
commitment to obey the law;
trust and perceptions of fairness of the host
state, in particular in its RSD process;
the desire to avoid irregular residence, in
particular the attendant hardship and
vulnerability.
Objective Factors – How the
state may support or
undermine that cooperative
disposition
 Reception
conditions (RC)
 Fairness of RSD and other
legal processes
 Holistic support
Qualitative Interviews
Toronto
Geneva
Interviews
20
30
Interviewees
22
30
Men / Women
11 / 11
20 / 10
Nationalities
15
15
Detained
13
6
Legal Advice
19 (at the outset of the
RSD procedure)
10 (late in the RSD
procedure)
Awaiting Decision
18
27
Refugee Status
1
2
Mean Time in host
country
1 year
1 year
Range of Times in host
country
2 weeks -18 years
1 month - 16 years
Impact of Legal Assistance
(Toronto)
‘It is crazy, but yeah, I do have trust in the
system because I understand it.’
 ‘It’s going to be fair, I have to be positive.
[Our lawyer] says we have a very strong case. I
do believe that. It is going to be a positive one I
have no doubt. I trust the system, I trust the
hands of the people that I am in right now.’

Impact of legal assistance
(Toronto shelter assistants)
‘What we hear from other refugees isn’t the
always the right thing, so I prefer to listen to my
caseworker, because they know. (…)
Yesterday somebody was telling to file for
refugee claim, and then to file for humanitarian
and compassionate. So I asked my
caseworker, she said it is no good for me
because I am not established here. Usually it is
for people who have jobs and ties here. I trust
my caseworker.’
HOLISTIC SUPPORT
Holistic Support

Comprehensive, individualised support and
advice to navigate life in the host country and
provide information on all possible avenues
to regularize residence.
Holistic Support (Toronto
Shelters)


‘They are my family.’ ‘I’m a foreigner but I feel
like one of them.’
‘I’ve never seen anything like this. They just
help, help, help. (…) To me it is perfect. I
don’t have anywhere is to compare it with, so
I don’t have anywhere else to compare it
with, but I think Canada is the best.
Especially from Britain, I haven’t been to
Britain but from what I read online it is really
horrible. (…)’
Holistic Support (Toronto)
‘Living in the hostel helped me with the
hearings. There were talks. I met people who
were in the similar situation. They have talks in
the evening. They help us get lots of
information, they tell you how to go to school, to
get a student permit. I am studying hospitality.
They advised me about what to study.’
CONCLUSIONS
Elements of a well-functioning
asylum system





Frontloading of early, independent legal
advice
Multiple sources of trusted legal assistance
and holistic support
Fair RSD
Adequate RC
Integration measures for recognised refugees
and those who are non-returnable