International law strongly supports the assertion that detention should not be arbitrary or indefinite, and should be used as a last resort, especially in the case of vulnerable groups such as asylum seekers and refugees. Where possible, efforts should be made to promote alternatives to detention, and engage with governments to ensure that asylum seekers and refugees are not unnecessarily detained.
The International Detention Coalition advocates a ‘community assessment and placement’ (CAP) model. This is a framework designed to assist governments in their exploration and development of alternatives to detention.
The CAP model outlines a 5-step conceptual and practical framework:
1. Presume detention is not necessary
2. Screen and assess the individual case
3. Assess the community setting
4. Apply conditions in the community as necessary
5. Detain only as a last resort in exceptional cases
In many contexts, the issue of immigration detention is highly sensitive and political. Advocacy campaigns must therefore be tailored to specific settings. In some contexts, ‘naming and shaming’ the government may be effective. In other contexts, a more indirect approach is preferable. In a number of instances, campaigning to end the detention of children has been found to be a strategic first step to open up dialogue and raise awareness around the issue of detention of asylum seekers and refugees.
Other strategies could involve engaging counterparts, such as with international institutions, civil society, and foreign governments. This can take the form of providing material support to improve detention conditions, such as by funding new water pipes or a schoolroom. It can also involve building relationships with, and capacity of, detention authorities. This may involve training law enforcement, immigration and detention officers to better understand the exemptions provided to asylum seekers and refugees under domestic and international law. Support could also be given to establish and/or improve appropriate screening mechanisms.
The importance of Access v Advocacy can pose operational and ethical challenges. Sometimes the importance of being able to access detainees may mean that the ability to speak out against or criticize the detention facility or authorities is compromised. For example, where a lawyer is working within a highly politically restrictive detention facility, they may witness mistreatment of detainees. However, if they were to publicly criticize this, their future access to detention facilities and other service providers may be jeopardized. In serious cases of abuse or mistreatment, it may be possible to discreetly engage other stakeholders (for example, human rights bodies) to respond, without risking the organization’s own access. This dilemma can weigh on individual legal representatives, and should also be carefully considered at an organizational level.