Despite the vulnerabilities faced by those who require international protection, and the prohibition of indefinite and mandatory detention under international law, many asylum seekers and refugees continue to be detained for long periods of time in their countries of asylum. In addition, they often face increased risk of being deported to countries where they faced persecution.
Asylum seekers and refugees can be detained in places such as immigration detention facilities (including offshore processing centers), criminal correction facilities, police stations, airports, ships, shipping containers, and closed refugee camps. In addition, states might contract community organizations to provide community detention. However, although this is relatively more humane, it is rare, and is usually only available to the most vulnerable groups.
Detainees face a number of challenges. They often have limited access to basic services including medical care and legal representation. Physical and mental health issues are common, and pre-existing trauma is often heightened by conditions in detention. It is common for detainees to have face mistreatment by detention authorities, language barriers in detention, restricted communication, corruption, abuse, and indefinite detention. In many countries, entire families are detained, including children, while others are separated from their families. Education and other opportunities are interrupted, and detainees are denied the ability to participate in society or live with dignity.
The following page will highlight the international and regional legal instruments relevant to the protection of asylum seekers and refugees in detention. The sub-sections of this page will provide practical advice on how to assist asylum seekers and refugees in detention: categorized under legal services and policy advocacy.
Arbitrary Arrest and Detention under International and Regional Law
States might detain asylum seekers and refugees for reasons such as an possessing invalid or expired visa and/or passport, document fraud (e.g. using a fake passport), no documentation, and criminal charges. Law enforcement officers might also be unaware of special legal status of asylum seekers and refugees.
However, the international law provides a number of provisions to safeguard individuals against unlawful arrest and detention. As explained in the Freedom from Penalties for Illegal Entry page, Article 31 of the 1951 Convention prohibits the penalization of asylum seekers and refugees for their illegal entry or presence, if the individual presented themselves without delay and showed good cause for their entry or stay. In addition, Article 26 provides the freedom of movement and choice of residence for refugees that are lawfully in the territory. Taking these rights together, it means that detention should be a last resort.
Supported by the UNHCR 2012 Guidelines, “arbitrariness” should be broadly interpreted to include unlawfulness, inappropriateness, injustice and lack of predictability. Decisions to detain are to be based on a detailed and individualized assessment of the necessity to detain in line with a legitimate purpose. In line with the international law, these purposes are generally limited to reasons relating to public order, public health or national security.
Other International and Regional Human Rights Instruments
In addition to Article 26 and 31 of the 1951 Convention, key articles in other international and regional instruments relating to detention are listed below. These articles relate to principles including the freedom of movement, the right to liberty and security of person, the prohibition of arbitrary detention, and the treatment of persons deprived of their liberty.
- Universal Declaration of Human Rights (Articles 3, 9 and 13)
- International Covenant on Civil and Political Rights (Articles 10(1), 10(2),12)
- Convention Against Torture (Articles 10(1) & 11)
- African Charter on Human and Peoples’ Rights (“Banjul Charter”) (Article 12)
- American Convention on Human Rights (Article 22)
- ASEAN Human Rights Declaration (Articles 12 & 15)
- Council Directive 2003/9/EC of 27 January 2003 Laying Down Minimum Standards for the Reception of Asylum Seekers in Member States, European Union, 6 February 2003, Article 7: Residence and Freedom of Movement
- Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise Need International Protection and the Content of the Protection Granted, European Union, 19 May 2004, Article 32: Freedom of movement within the Member State
To challenge detention, advocates may file complaints or reports to the relevant international human rights bodies. This includes the Office of the High Commissioner for Human Rights’ (OHCHR) Human Rights Council. There are also treaty-based bodies that monitor international human rights treaties. This includes the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Racial Discrimination; the Committee on the Elimination of All Forms of Discrimination against Women; the Committee Against Torture; the Optional Protocol to the Convention Against Torture (OPCAT) – Subcommittee on Prevention of Torture; the Committee on the Rights of the Child; the Committee on Migrant Workers; and, the Committee on the Rights of Persons with Disabilities.
For addition information, the International Detention Coalition provides a detailed list of relevant international law. The UNHCR 2012 Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention is also a useful starting point on how to interpret the relevant international law relating to detention. Meanwhile, the Rights In Exile Program provides an explanation of the detention conditions needed in order to comply with the international law and standards.
- International Detention Coalition: Compendium of international law, standards and guidelines related to the detention of refugees, asylum seekers and migrants (IDC)
- UNHCR 2012 Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention (UNHCR, 2012)
- Refugees in Detention (The Rights in Exile Program)