Seeking Asylum BA International Relations Yang Ha Lim The Legislative Framework of Detention of Asylum-Seekers (UNHCR Guidelines) Seeking Asylum BA International Relations Yang Ha Lim

Guidelines are intended to provide guidance to governments, parliamentarians, legal practitioners, decision-makers, including the judiciary, as well as other international and national bodies working on detention and asylum seekers, including NGOs, national human rights institutions and UNHCR staff.

Restrictions on Liberty Terminology Detention : “the deprivation of liberty or confinement in a closed place which an asylum-seeker is not permitted to leave at will, including, though not limited to, prisons or purpose-built detention, closed reception or holding centers or facilities.” The place of detention may be administered either by public authorities or private contractors; the confinement may be authorised by an administrative or judicial procedure, or the person may have been confined with or without “lawful” authority. Detention can take place in a range of locations, including at land, and sea borders, in the “international zones” at airports, on islands, on boats as well as in closed refugee camps, in one’s own home (house arrest) and even extraterritorially. Liberty Restrictions on Liberty Detention

DETENTION GUIDELINES UNHCR

Guideline 1: The right to seek asylum must be respected Every person has the right to seek and enjoy in other countries asylum from persecution, serious human rights violations and other serious harm. Seeking asylum is not, therefore, an unlawful act.

Detention must be in accordance with and authroised by law Guideline 2: The rights to liberty and security of person and to freedom of movement apply to asylum-seekers Major international and regional human rights instruments & Legal systems built on the rule of law Liberty Security of person Freedom of movement Guideline 3: Detention must be in accordance with and authroised by law

Guidelines 4: Detention must not be arbitrary, and any decision to detain must be based on an assessment of individual’s particular circumstances To guard against arbitrariness, any detention needs to be necessary in the individual case, reasonable in all the circumstances and proportionate to a legitimate purpose. Appropriate screening or assessment tools can guide decision-makers Factors to guide such decisions can include the stage of the asylum process, the intended final destination, family and/or community ties, past behaviour of compliance and character and risk of absconding or articulation of willingness and understanding of the need to comply.

Guidelines 5: Detention must not be discriminatory. Guidelines 6: Indefinite detention is arbitrary and maximum limits on detention should be established in law.

Guideline 7: Detentions to detain or to extend detention must be subject to minimum procedural safeguards If faced with the prospect of being detained, as well as during detention, asylum-seekers are entitled to the following minimum procedural guarantees: To be informed at the time of arrest or detention of the reasons of their detention, and their rights in connection with the order, including review procedures, in a language and in terms which they understand. To be informed of the right to legal counsel. To be brought promptly before a judicial or other independent authority to have the detention decision reviewed. Following the initial review of detention, regular periodic reviews of the necessity for the continuation of detention before a court or an independent body must be in place, which the asylum seeker and his/her representative would have the right to attend. To contact and be contacted by UNHCR. Access to other bodies or agencies should be available as appropriate.

Guideline 8: Conditions of detention must be humane and dignified Detention can only lawfully be in places officially recognised as places of detention. Detention in police cells is not appropriate. Detention of asylum-seekers for immigration-related reasons should not be punitive in nature. The use of prisons, jails and facilities designed or operated as prisons or jails should be avoided. (If so, they should be separated from the general prison population) Appropriate medical treatment must be provided where needed including psychological counselling. Asylum-seekers in detention should be able to make regular contact and receive visits from relatives, friends as well as religious, international aid and/or NGOs. Basic necessities such as beds, climate-appropriate bedding, shower facilities, basic toiletries and clean clothing, are to be provided to asylum-seekers in detention. Asylum-seekers should have access to education and/or vocational training, as appropriate to the length of their stay. Children born in detention need to be registered immediately after birth in line with international standards and issued with birth certificates

Guideline 9: The special circumstances and needs of particular asylum-seekers must be taken into account 1. Victims of trauma or torture 2. Children 3. Women 4. Victims or potential victims of trafficking 5. Asylum-seekers with disabilities 6. Older Asylum-seekers 7. Lesbian, gay, bisexual, transgender or intersex asylum-seekers

Guideline 10: Detention should be subject to independent monitoring and inspection

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