Seminar on detention of asylum-seekers
and alternatives to detention
UNHCR Position
and
Relevant case-law of the European Court of Human Rights
UNHCR Representation to the European institutions in Strasbourg
Detention / Alternatives to detention
I.
Mandate/Terminology
II.
UNHCR Position on detention of refugees
III.
Relevant ECHR case-law
IV.
EU law
UNHCR Mandate
• Refugees / Asylum-seekers
= 10 400 000 / 990 000
• Internally Displaced Persons (IDPs)
= 15 630 000
• Stateless persons
= 6 560 000
Mandate / Terminology
1951 Refugee Convention / Article 31
***
1. The Contracting States shall not impose penalties, on account of their illegal
entry or presence, on refugees who, coming directly from a territory where
their life or freedom was threatened in the sense of article I, enter or are
present in their territory without authorization, provided they present
themselves without delay to the authorities and show good cause for their
illegal entry or presence.
2. The Contracting States shall not apply to the movements of such refugees
restrictions other than those which are necessary and such restrictions shall
only be applied until their status in the country is regularized or they obtain
admission into another country. The contracting States shall allow such
refugees a reasonable period and all the necessary facilities to obtain admission
into another country.
UNHCR Position on detention of refugees
Executive Committee Conclusions No. 44
13 October 1986
***
The ExCom (…)
(b) Expressed the opinion that in view of the hardship which it involves,
detention should normally be avoided.
If necessary, detention may be resorted to only on grounds prescribed by law
1. to verify identity
2. to determine the elements on which the claim to refugee status or asylum is
based
3. to deal with cases where refugees or asylum-seekers have destroyed their
travel and/or identity documents or have used fraudulent documents in order to
mislead the authorities of the State in which they intend to claim asylum or
4. to protect national security or public order
(…)
UNHCR Position on detention of refugees
February 1999 / UNHCR Revised Guidelines on
applicable criteria and standards relating to the
detention of asylum-seekers
***
Guideline 2: Asylum-seekers should not be detained
Guideline 3: Exceptional Grounds for Detention
1. cases in which identity is undetermined or in dispute
2. Preliminary interview
3. cases where there is an intention to mislead the authorities
4. cases where there is evidence to show that the asylumseeker has criminal antecedents and/or affiliations likely to
pose a risk to public order/national security
Guideline 4: Alternatives to Detention
UNHCR Position on detention of refugees
February 1999 / UNHCR Revised Guidelines on
applicable criteria and standards relating to the
detention of asylum-seekers
***
Guideline 5 – Procedural safeguards
Guideline 6 – Children
Guideline 7 – Vulnerable Persons
Guideline 8 – Women
Guideline 9 – Stateless persons
Guideline 10 – Conditions of detention
UNHCR Position on detention of refugees
Necessity test / Is detention necessary?
***
Holistic test, taking into account:
- Lack of empirical evidence that detention deters
irregular migration or discourages persons from
seeking asylum
- Human rights consequences are important
- Social and economic costs are important
- Seeking asylum is not a criminal act
Detention = a measure of last resort
UNHCR Position on detention of refugees
Alternatives to detention
***
- 90% compliance or cooperation rates can be achieved
when persons are released to proper supervision and
facilities
- There are alternatives to detention
≠alternative forms of detention
- Examples (Open reception centre, registration, group
based organisation, guarantees, reporting, case
management etc.)
UNHCR Position on detention of refugees
Article 5 ECHR
***
Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law:
(...) f)
the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or
[first limb]
of a person against whom action is being taken with a
view to deportation or extradition.
[second limb]
Relevant ECHR case-law
Deprivation of liberty
***
If deprivation of liberty = Article 5 applies
- Airport transit zones
Amuur v. France
Shamsa v. Poland
- Reception centres
Merie v. The Netherlands
- UNHCR Mandate / Detention pending deportation
(failed asylum-seekers)
Relevant ECHR case-law
Compatibility of the measure with Article 5 ECHR
***
Lawfulness review…
Nolan and K. v. Russia
…involves an arbitrariness review
Saadi v. The United Kingdom
Relevant ECHR case-law
Arbitrariness criteria ≠ Necessity test?
***
- Carried out in good faith
Rusu v. Austria
- Closely connected to the purpose of preventing
unauthorized entry
Gebremedhin v. France
Auad v. Bulgaria
Relevant ECHR case-law
Arbitrariness criteria ≠ Necessity test?
***
- Conditions of detention should be appropriate
S.D. v. Greece
Tabesh v. Greece
Abdolkhani and Karimnia v. Turkey
- Length of detention should not exceed that
reasonably required for the purpose pursued
≠ Necessity test?
Relevant ECHR case-law
Alternatives to detention = Necessity test?
***
Direct references in the recent Court’s case-law
Mikolenko v. Estonia
Raza v. Bulgaria
Auad v. Bulgaria
Detention of unaccompanied children
= last resort measure
Rahimi v. Greece
Relevant ECHR case-law
Asylum Procedures Directive 2005/85/EC
***
Article 18 – prohibition against detention of an asylumseeker + speedy judicial review
Article 16(2) –legal advisor or counsellor has access to
closed areas, such as detention facilities & transit zones
Article 21(1) –UNHCR allowed to access to asylumseekers, including those in detention & in airport or
port transit zones
EU acquis
Reception Conditions Directive 2003/9/EC
***
Art 2(k) – defines detention as “confinement of an
asylum seeker by a MS within a particular place, where
asylum seeker in deprived of his/her freedom of
movement.
Recital 10 & 13 – reception of asylum applicants in
detention should be specifically designed to meet their
needs
Returns Directive 2008/115/EC
***
- for asylum-seekers whose claim has been rejected
- codifies some well-established principles of
international law against arbitrary detention (Art
15-18)
EU acquis
CJEU jurisprudence
***
Interpretation of the Returns Directive:
– Kadzoev v. Bulgaria C-357/09 (30/11/2009)
– El Dridi , C-61/11 (28/04/2011)
EU acquis