Detention of asylum seekers in the European Union
Detention policies and practices in the EU sometimes fail to follow UNHCR Guidelines and violate fundamental standards of international human rights law such as the ICCPR, the UN Body of Principles, the UN Standard Minimum Rules, and the UN Rules for the Protection of Juveniles Deprived of their Liberty. Not only are asylum- seekers held in prisons and prison-like conditions, they are also confined with convicted criminals.
Asylum-seekers and refugees are not only deprived of their liberty, but are sometimes held in conditions that amount to cruel, inhuman or degrading treatment. Sometimes the physical conditions of detention for asylum-seekers are worse than those for convicted criminals, yet those seeking asylum have not been convicted of any crime. Asylum-seekers may be moved from one detention centre to another, sometimes far from their families or legal representatives, or far from any major city with access to legal counsel. In addition, detained refugees may suffer the psychological torment of not knowing for how long they will be held and the fear that they may be sent back to their persecutors. Torture victims in particular may suffer further trauma through the psychological stress of detention.
Amnesty International believes that detention of asylum seekers should be avoided. No asylum seeker should be detained unless it has been established that detention is necessary, is lawful and complies with one of the grounds recognised as legitimate by international standards. In all cases, detention should not last longer than is strictly necessary. All asylum seekers should be given adequate opportunity to have their detention reviewed (both on its legality and of its necessity) by means of a prompt, fair, individual hearing before a judicial or other similar authority whose status and tenure afford the strongest possible guarantees of competence, impartiality and independence. The organisation opposes the practice of detaining asylum-seekers when adequate and effective safeguards do not exist or are not followed.
1. European standards on detention of asylum seekers
Article 5 of the European Convention on Human Rights states that:
"1. 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 of a person against whom action is being taken with a view to deportation or extradition
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful".
The legislation and practice of the EU and its Member States must comply with the standards contained in the European Convention on Human Rights.
In Chahal v. the UK (judgment of 25 October 1996), the Court found a violation of Article 5(4). The Court stated that "the notion of lawfulness in Article 5 para. 1 does not refer solely to the obligation to conform to the substantive and procedural rules of national law; it requires in addition that any deprivation of liberty should be in keeping with the purpose of Article 5" (para. 129). The Court found that "neither the proceedings for habeas corpus and for judicial review of the decision to detain Mr Chahal before the domestic courts, nor the advisory panel procedure, satisfied the requirements of Article 5 para. 4" (para. 132).
The European Committee for the Prevention of Torture (ECPT) has visited detention centres for asylum seekers in several EU Member States. In its 7th General Report on the ECPTs activities covering the period 1 January to 31 December 1996, the ECPT expressed its main concerns regarding the detention of aliens with the hope "to give a clear advance indication to national authorities of its views concerning the treatment of immigration detainees".
The ECPT noted that "the precise legal position of persons refused entry to a country and placed in [international] zones has been the subject of some controversy". Despite arguments that such persons are not deprived of their liberty as they are free to leave the zone for any other country, "the ECPT has always maintained a stay in a transit or "international" zone can, depending on the circumstances, amount to a deprivation of liberty within the meaning of Article 5 (1)(f) of the European Convention on Human Rights, and that consequently such zones fall within the Committee's mandate" (para. 25).
The European Court of Human Rights found in the case of Amuur v. France (judgment of 20 May 1996), regarding the detention of seekers in the international zone of Paris-Orly airport, that there had been a breach of Article 5(1). The Court stated that even though the applicants were not in the territory of the State Party concerned, within the meaning of its national legislation, "holding them in the international zone of [the airport] made them subject to French law" since "despite its name, the international zone does not have extraterritorial status" (para. 52). The Court found that "the French legal rules in force at the time [ ] did not sufficiently guarantee the applicants right to liberty" (para. 54). At the time, none of the legal provisions applicable "allowed the ordinary courts to review the conditions under which aliens were held or, if necessary, to impose a limit on the administrative authorities as regards the length of time for which they were held. They did not provide for legal, humanitarian and social assistance, nor did they lay down procedures and time-limits for access to such assistance so that asylum-seekers like the applicants could take the necessary steps" (para. 53).
The ECPT also expressed that "point of entry holding facilities have often been found to be inadequate, in particular for extended stays. More specifically, ECPT delegations have on several occasions met persons held for days under makeshift conditions in airport lounges. It is axiomatic that such persons should be provided with suitable means for sleeping, granted access to their luggage and to suitably-equipped sanitary and washing facilities, and allowed to exercise in the open air on a daily basis. Further, access to food and, if necessary, medical care should be guaranteed" (para. 26).
In certain countries, ECPT delegations have found "immigration detainees held in police stations for prolonged periods (for weeks and, in certain cases, months), subject to mediocre material conditions of detention, deprived of any form of activity and on occasion obliged to share cells with criminal suspects. Such a situation is indefensible" (para. 27).
On occasion, ECPT delegations have found "immigration detainees held in prisons. Even if the actual conditions of detention for these persons in the establishments concerned are adequate -which has not always been the case - the ECPT considers such an approach to be fundamentally flawed. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence" (para. 28).
The ECPT expressed its view that "in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably-qualified personnel. The Committee is pleased to note that such an approach is increasingly being followed in Parties to the Convention. Obviously, such centres should provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them. The staff of centres for immigration detainees have a particularly onerous task. Firstly, there will inevitably be communication difficulties caused by language barriers. Secondly, many detained persons will find the fact that they have been deprived of their liberty when they are not suspected of any criminal offence difficult to accept. Thirdly, there is a risk of tension between detainees of different nationalities or ethnic groups. Consequently, the ECPT places a premium upon the supervisory staff in such centres being carefully selected and receiving appropriate training. As well as possessing well-developed qualities in the field of interpersonal communication, the staff concerned should be familiarised with the different cultures of the detainees and at least some of them should have relevant language skills. Further, they should be taught to recognise possible symptoms of stress reactions displayed by detained persons (whether post-traumatic or induced by socio-cultural changes) and to take appropriate action" (para.29).
Regarding the safeguards during detention, the ECPT stated that "immigration detainees should - in the same way as other categories of persons deprived of their liberty - be entitled, as from the outset of their detention, to inform a person of their choice of their situation and to have access to a lawyer and a doctor. Further, they should be expressly informed, without delay and in a language they understand, of all their rights and of the procedure applicable to them. The ECPT has observed that these requirements are met in some countries, but not in others. In particular, visiting delegations have on many occasions met immigration detainees who manifestly had not been fully informed in a language they understood of their legal position. In order to overcome such difficulties, immigration detainees should be systematically provided with a document explaining the procedure applicable to them and setting out their rights. This document should be available in the languages most commonly spoken by those concerned and, if necessary, recourse should be had to the services of an interpreter (para. 30).
The right of access to legal assistance "should apply throughout the detention period and include both the right to speak with the lawyer in private and to have him present during interviews with the authorities concerned. All detention facilities for immigration detainees should provide access to medical care. Particular attention should be paid to the physical and psychological state of asylum seekers, some of whom may have been tortured or otherwise ill-treated in the countries from which they have come. The right of access to a doctor should include the right - if a detainee so wishes - to be examined by a doctor of his choice; however, the detainee might be expected to cover the cost of such a second examination. More generally, immigration detainees should be entitled to maintain contact with the outside world during their detention, and in particular to have access to a telephone and to receive visits from relatives and representatives of relevant organisations" (para. 31).
2. Selected national law and practice by EU Member States
The Belgian asylum procedure is a two-stage one, made of an admissibility procedure and a determination procedure where a claim is examined on its merits.
The Belgian Aliens Law allows detention of asylum seekers in border procedures (in 1999: 4.1 %) during the processing of their claim under the admissibility procedure. In-country applicants who entered the country illegally may also be detained during this period, but this is rather exceptional. However, over the last year the number of in-country detentions has considerably risen.
Detention lasts until a decision on admissibility is made, with a maximum of two months. If no decision has been made within two months, the asylum seeker is released and allowed to enter the country.
A rejected asylum seeker may be held in a detention centre for a maximum period of five months (including the detention occurred during the processing of the asylum claim). If the expulsion is not executed during that period, individuals must in principle be released. There is still discussion on whether the lack of co-operation of an alien with the expulsion procedure can be used as a ground to renew the maximum period of five months. In practice, some rejected asylum seekers have been held for periods up to 8 months.
Alleged ill-treatment in detention centres for aliens
The Minister of Interior made no response to Amnesty Internationals December 1999 request for clarification of the existing system for monitoring the conditions of detention in the closed centres for aliens. The organisation had expressed concern that the system did not appear to offer the fully independent supervision of detention conditions required by relevant international standards.
Amnesty International was concerned to note that a judicial investigation into a criminal complaint of ill-treatment lodged in November 1998 by Blandine Kaniki, an asylum-seeker from the Democratic Republic of the Congo, had still not concluded by June (see AI Index: EUR 01/02/99 and EUR 01/01/00). She alleged that in October 1998, while accompanied by her five-year-old son, she and other inmates of Steenokkerzeel detention centre 127-bis were subjected to an indiscriminate physical assault by helmeted gendarmes armed with batons and shields. Other inmates made written statements claiming to have been victims of, or witnesses to, the ill-treatment alleged. Blandine Kaniki was three months pregnant at the time and claimed that a miscarriage she suffered a few weeks later was the result of a blow to the stomach and subsequent inadequate medical assistance. The gendarmes had been called in to end an inmates' protest against an attempt to forcibly deport a Nigerian national earlier in the day: inmates claimed the man had been subjected to excessive force by members of the centre's personnel.
Amnesty International also noted that requests it had addressed to the Minister of Interior in February and December 1999, seeking a copy of any report drawn up following an internal investigation which was apparently carried out into the October 1998 incidents in the detention centre, and to be informed of any administrative or disciplinary proceedings arising from it, remained without response at the end of June.
During the period under review a judicial investigation was also under way into a criminal complaint of ill-treatment lodged by an Armenian national, Hovhannes Karapetyan, who alleged that he was physically assaulted by warders following his return to detention centre 127-bis after an attempt to deport him in June 1999 (see AI Index: EUR 01/01/00).
In January, in response to Amnesty Internationals request for the cooperation of the Minister of Justice in keeping the organisation informed of the eventual outcome of the complaint, the Ministry stated that it would be asking the judicial authorities about the status of the dossier. The Minister of the Interior made no response to Amnesty Internationals invitation for comments on the reports of alleged ill-treatment in the case.
Imprisonment can be used according to the Danish Aliens Act in a number of cases. In practice, the grounds mostly used for detention of asylum seekers are:
There are no maximum limits to the length of the detention, except for asylum seekers processed under the manifestly unfounded procedures, who cannot be detained for more than seven days. After three days, applicants must be brought before a court. The judge may extend the detention for another period, which cannot exceed four weeks. At the expiration of this new period and any consecutive detention period, the detention measure must be reviewed by the court.
In Denmark, the detention of asylum seekers is very common. Approximately 90% of aliens in detention are asylum seekers. In 1998 approximately 5,000 aliens were detained (which constitutes an increase by 30% in relation to the previous year). It is estimated that approximately 50% of all asylum seekers in Denmark will be detained at some point.
In France, retention of asylum seekers is allowed in two cases: the arrival at an external border or, for in-country applications under accelerated procedures.
In France, individuals who are in a illegal situation and subjected to a final expulsion order may be held in special retention centres and this includes rejected asylum seekers.
Holding areas at Roissy-Charles de Gaulle.
In February Amnesty International expressed concern to the Interior Minister about allegations that some asylum-seekers had been ill-treated at a holding area at Roissy-Charles de Gaulle airport, Paris on New Year's Eve. A local Amnesty International representative visiting the centre had been told that several Sierra Leone nationals, of Muslim faith, had emerged into the corridor of the building to pray and sing and that two police officers, who were reportedly drunk, had begun to harass and ill-treat them, making threats and racial insults, spraying them and causing injuries to one or two people. Amnesty International expressed concern at other reports about harassment of immigrants at the centre and referred to a number of previous criticisms that had been made about the facilities at the Ibis Hotel and other holding areas at Roissy by a number of NGOs, including Amnesty International. While the organisation welcomed a series of efforts by the French authorities to improve conditions for asylum-seekers, Amnesty International remained concerned at the tense situation created by poor and inadequate facilities, which it believed could help to fuel confrontations between asylum-seekers and police officers. Amnesty International also asked that the allegations of ill-treatment be investigated by the Ministry.
At the same time Amnesty International again raised with the Minister the case of Salah Ben Hédi Hassen Karker, a Tunisian political refugee issued with an expulsion order in 1993 and held since under a form of administrative detention known as ''assignation à résidence'' (AI Index: EUR 01/02/98 and 01/01/98). Amnesty International reiterated that Salah Karker had never been given an effective opportunity to contest the expulsion or assignation à résidence orders against him in a court of law and considered it "intolerable to hold Salah Karker indefinitely under such a form of confinement". To date Amnesty International has not received a response from the Interior Minister on either subject.
When a person crosses a German border illegally and applies for asylum he or she will not be put in detention. But when a person living in Germany for more than a month illegally after his or her illegal entry and is detained applies for asylum, he or she will be detained for a maximum of four weeks. In practice, these cases are very rare.
Detention of asylum seekers plays a far more important role after an asylum procedure has been finished negatively for the asylum seeker. When the asylum application has been finally rejected and the asylum seeker has no other right to stay in Germany he or she will be asked to leave the country. When he/she does not follow this demand and stays in the country the authorities can ask the competent judicial authority to order detention. The German aliens act allows to types of detention: the preparatory detention and the preventive detention. Preparatory detention may happen before a deportation order has been adopted, if no immediate decision can be made on deportation and expulsion would be difficult or impossible without the preparatory detention. Detention may last for a maximum of six weeks. Preventive detention may happen after an expulsion order has been issued if it can be suspected that the asylum seeker will otherwise try to evade the expulsion. Detention may last for up to a week. Long term preventive detention for up to six months can be ordered by the competent judicial authority if an alien has disregarded a time limit for leaving the country and changed the place of residence without notifying the authorities, or if there is a continuing suspicion that the alien will evade the expulsion. The detention time can be extended up to a maximum time of another twelve months.
Conditions of detention of asylum-seekers
Amnesty International learned about the suicide of an Algerian asylum-seeker, who has been referred to in the German press as Naimah H., in the transit area holding facility (Transitbereich) of Frankfurt am Main airport on 6 May. It is reported that on 24 February she was taken from the transit area holding facility to hospital suffering from a nervous breakdown and later transferred to a pre-deportation detention facility at Justizvollzugsamt Frankfurt-Preungesheim. Her lawyer has reportedly stated that his client also found it difficult to endure conditions there and was 'voluntarily' transferred back to the transit area holding facility of Frankfurt am Main airport on 4 May, where she committed suicide two days later.
The conditions of detention at Frankfurt am Main airport had previously been criticized in a report published in May 1999 by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ECPT), which had visited the airport in May 1998, stating: "For its part, the ECPT wishes to stress that particular attention should be paid to the physical and psychological state of health of foreign nationals held in Transit Building C182. They may well have experienced difficult situations and even have been subjected to torture and other forms of ill-treatment. Further, medical screening on arrival would also be advisable in terms of preventive medicine" (para. 29)In May Amnesty International wrote to the German authorities stating that, following the recommendations of the ECPT report of 1999, the German authorities should undertake measures to ensure the better provision of medical care for asylum-seekers in the transit area holding facility of the airport and urged the German authorities to reconsider the practice of detaining asylum-seekers in the transit area holding facility for prolonged periods of time.
In the UK, the statutory provisions for immigration detention are found in the Immigration Act 1971 and the Immigration (Places of Detention) Direction 1996.
The power to detain rather than grant temporary admission lies with the Immigration Officers.
In the July 1998 White Paper, it is stated that "it is regrettable that detention is necessary to ensure the integrity of our immigration control. The Government has decided that, whilst there is a presumption in favour of temporary admission or release, detention is normally justified in the following circumstances:
There is currently no presumption in favour of bail nor any adequate judicial supervision or review of detention. The granting of bail is normally subject to the provision of financial sureties.
Under the provisions of the Immigration and Asylum Act 1999 there will be two automatic bail hearings for those detained under Immigration Act powers. There will be a presumption to liberty at all immigration bail hearings with nine exceptions to bail. These provisions were due to come into force in April 2001 but have been deferred until October due to the expansion of the detention estate.
On 20 March 2000, Oakington detention centre opened aiming to fast-track thousands of asylum seekers per year. Asylum applicants detained at Oakington are those who on arrival are pre-judged to be likely to be without foundation and are selected on the basis of their nationality. They are held for a period of between 7-10 days.
Although the majority of asylum seekers are granted temporary admission pending the determination of their asylum claim some 1,000 asylum seekers are held in detention at any given time, many awaiting an initial decision on their asylum application. There is no limit to the period for which an asylum seeker can remain in detention. UK legislation provides for indefinite detention on the authority of an immigration officer.
Amnesty International believes that the UKs practice of arbitrarily detaining some asylum seekers at the initial stages of the procedure is a deterrent measure.
Under article 14 of the Universal Declaration of Human Rights everyone has the right to seek and to enjoy asylum from persecution. EXCOM Conclusion 44, and more recently the 1999 UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers, require that the detention of asylum-seekers should normally be avoided. Both also require the authorities to distinguish between asylum- seekers and other detainees.
Amnesty International calls on Member States to demonstrate reasons for detaining asylum seekers in accordance with international standards and by means of a prompt, fair individual hearing before a judicial or similar authority whose status and tenure afford the strongest possible guarantees of competence, impartiality and independence.
Staff in charge of removal and detention should know which of the foreigners in their care are asylum-seekers. This responsibility should extend to those who deal with the medical or spiritual needs of asylum-seekers in detention. They must take into account the special circumstances of asylum-seekers and make every effort to ensure that they are afforded the strongest possible guarantees that their detention is as brief as possible.
Amnesty International makes the following recommendations. Amnesty International believes that the following recommendations represent minimum procedural guarantees the EU must provide in order to fulfil its international obligations.
Compliance with international standards:
Release from detention -- necessary safeguards:
Place of detention:
Keeping track of detainees:
Access to the outside world and information:
Standards for detention conditions:
Particularly vulnerable categories:
ANNEX International Standards
Sources of international law relating to the detention of asylum-seekers and to the deprivation of liberty include Articles 25, 31, 33 and 35 of the 1951 Refugee Convention, Article 9 of the International Covenant on Civil and Political Rights (ICCPR), Article 5 of the European Convention on Human Rights, and Article 37 of the Convention on the Rights of the Child. These instruments are binding on states parties.
In addition, there are key UN and regional instruments which offer protection to asylum-seekers. Article 3 of the Universal Declaration of Human Rights states that "[n]o one shall be subjected to arbitrary arrest, detention or exile". This is a fundamental principle which all UN member states have agreed to respect. More detailed safeguards for the rights of those in detention and the duties of Member States are found in non-treaty standards adopted by consensus by UN Member States. These have the authoritative value and persuasive force of their adoption by political bodies such as the UN General Assembly, even though they do not technically have the power of treaties, except insofar as they reflect customary international law. These include the UN Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules); the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles); and the UN Rules for the Protection of Juveniles Deprived of their Liberty.
Conditions of detention are addressed in Articles 7 and 10 of the ICCPR, which address the prohibition of torture, or cruel, inhuman and degrading treatment or punishment, and the humane treatment of all persons in detention respectively. Article 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) establishes the prohibition of cruel, inhuman or degrading treatment or punishment. Article 3 of the European Convention on Human Rights establishes the prohibition of torture, or inhuman and degrading treatment or punishment.
Measuring EU detention law and practices against the fundamental human rights of asylum-seekers reveals that some EU Member States do not respect the spirit of agreed international norms for the detention of refugees and, in particular instances, violate these standards. In general, the detention of asylum-seekers is "inherently undesirable" and as a general principle asylum-seekers should not be detained.
Amnesty International calls on any EC legislation on the detention of asylum seekers to ensure that Member States demonstrate legitimate reasons for any detention of asylum-seekers, in accordance with international standards and by means of a prompt, fair, individual hearing before a judicial or similar authority whose status and tenure afford the strongest possible guarantees of competence, impartiality and independence. Amnesty International opposes the practice of detaining asylum-seekers when adequate and effective safeguards do not exist or are not followed.
A right to detain?
International refugee law standards
The provisions of the 1951 Refugee Convention and its 1967 Protocol relating to the detention of refugees are as follows:
Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory subject to any regulations applicable to foreigners generally in the same circumstances.
2. In order to enable the Office of the High Commissioner... to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information and statistical data requested concerning:
(a) the condition of refugees,
(b) the implementation of this Convention, and
(c) laws, regulations and decrees which are, or may hereafter be, in force relating to refugees.
EXCOM's conclusions, which are adopted by consensus, are regarded as authoritative in the field of refugee rights. EXCOM has stated that the detention of asylum-seekers "should normally be avoided". Detention is allowed by international standards on a strictly limited basis and the onus is on the detaining authorities to demonstrate why other measures short of detention are not sufficient. Detention is allowed by international standards only if it is necessary, and if it is lawful and not arbitrary, and if it is for one of the following reasons:
(iv) "to protect national security or public order".
Moreover, even if an asylum-seeker is detained legitimately, detention should not continue for longer than is necessary. For example, detention "to verify identity" or "to determine the elements on which the claim to refugee status or asylum is based" should be permitted only until a preliminary interview can be carried out. In most cases, this should not require more than one or two days.
The 1999 UNHCR Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers are based on the general principle that asylum-seekers should not be detained. This principle flows from Article 14 of the Universal Declaration of Human Rights -- the right to seek and enjoy asylum -- which is recognised as a basic human right. UNHCR rightly points out that many asylum-seekers can only claim their right to seek asylum by arriving at, or entering, a territory illegally.
UNHCR notes the fundamental difference between the position of asylum- seekers and that of other immigrants. Essentially, asylum-seekers may not be in a position to comply with the legal formalities for entry as would ordinary immigrants. States are encouraged to take this into account, as well as the fact that asylum-seekers have often had traumatic experiences, in determining any restrictions on freedom of movement based on illegal entry or presence.
The UNHCR Guidelines conclude that:
Most importantly the UNHCR Guidelines stress that resort to detention of an asylum-seeker must be seen as an exceptional measure and subject to strict limitations .
UNHCR states emphatically that the reasons listed in EXCOM Conclusion 44 are the only ones to justify the detention of asylum-seekers. UNHCR explicitly cautions against states using detention to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them. Such a policy would be contrary to the norms of refugee law.
In sum, the 1951 Refugee Convention, EXCOM Conclusions and the recently issued UNHCR Guidelines provide ample basis for arguing that asylum-seekers should not be detained and that detention is an exceptional measure, subject to severe limitations.
International Covenant on Civil and Political Rights (ICCPR)
The ICCPR is the principal international treaty setting out fundamental civil and political rights. As of October 1998, 140 states had ratified the ICCPR, agreeing to be legally bound by its provisions. On the detention of asylum-seekers, Article 9 is of particular importance:
"Article 9.1 Everyone has the right to liberty and security of the person. No one shall be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.
"Article 9.4 Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
"Article 9.5 Anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation."
The Human Rights Committee, the expert body that monitors the implementation of the ICCPR, made clear in its General Comment on Article 9 that Article 9 applies to immigration control. The Committee has defined arbitrariness as not merely being against the law, but as including elements of inappropriateness, injustice and lack of predictability.
Member States are required to ensure to every person the rights recognised in the ICCPR without distinction of any kind (Article 2) and everyone has the right to privacy without arbitrary interference (Article 17).
Freedom from arbitrary arrest or detention is a basic human right. Human rights law has developed a series of measures to ensure that all individuals, including refugees, are not arbitrarily or unlawfully deprived of their liberty. The right to personal liberty is violated if an arrest or detention is arbitrary and is not carried out in accordance with a procedure prescribed by law.
The UN Working Group on Arbitrary Detention, a body set up by the UN Commission on Human Rights, has declared: "[A]rticle 14 of the Universal Declaration of Human Rights guarantees the right to seek and to enjoy in other countries asylum from persecution. If detention in the asylum country results from exercising this right, such detention might be 'arbitrary'".
Freedom from arbitrary and unlawful detention includes the right to be brought promptly before a judicial authority; the right to review of detention within a reasonable time or to release; and the right to challenge detention before a competent authority.
The detention of asylum-seekers in the EU should be assessed on the basis of a recent decision of the Human Rights Committee in A v Australia. In this case, the Human Rights Committee determined that the detention policy of Australia was not per se arbitrary within the meaning of Article 9(1) of the ICCPR, but the Committee set limits on the power of a state. In particular, the Committee stated that "remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context". The Committee found that the detention for over four years of a Cambodian asylum- seeker was arbitrary:
"[e]very decision to keep a person in detention should be open to review periodically so that the grounds justifying detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual such as the likelihood of absconding and lack of co-operation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal..."
The Committee determined that a state party may not justify indefinite and prolonged detention on the grounds that an asylum-seeker entered the country unlawfully, and that there would be a perceived incentive for the asylum-seeker to abscond if left in liberty.
"In the Committee's opinion, court review of the lawfulness of detention under article 9, paragraph 4, [of the ICCPR] which must include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law. While domestic legal systems may institute differing methods for ensuring court review of administrative detention, what is decisive for the purpose of article 9, paragraph 4, is that such review is, in its effects, real and not merely formal."
The Australian government's argument in A v Australia that the person detained only has the right to take proceedings before a court for a review of the lawfulness of detention (where lawfulness is limited merely to compliance with domestic law) was firmly rejected by the Human Rights Committee.
International standards governing detention
In the mid-1970s, the UN recognized the need to compile detailed, practical safeguards aimed at protecting all detainees from abuses such as arbitrary detention, coercive interrogation, torture or other ill-treatment and "disappearance". After more than a decade of drafting by various UN bodies, the UN General Assembly on 9 December 1988 adopted by consensus the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles). These Principles stress the importance of detainees having access to the outside world and of independent supervision of detention conditions. The Body of Principles applies to anyone in any form of detention or imprisonment, including those held in administrative detention without charge or trial. The Body of Principles applies to all countries at all times. It is important to note that the Principles are not merely exhortatory or advisory: they call upon Member States to take definite steps to implement and enforce their provisions .
Grounds for detention
Principle 4 provides a significant and fundamental guarantee: "Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to the effective control of, a judicial or other authority." The term "judicial or other authority" is defined in the Body of Principles as a "judicial or other authority under the law whose status and tenure shall afford the strongest possible guarantees of competence, impartiality and independence".
Principle 13 provides that people shall be informed of their rights and how to avail themselves of such rights "at the moment of arrest and at the commencement of detention or imprisonment, or promptly thereafter". If the authorities fail to do this, it would provide grounds for a complaint, which must be impartially investigated (Principle 7).
Principle 11 requires that "A person shall not be kept in detention without being given effective opportunity to be heard promptly by a judicial or other authority" and that "A judicial or other authority shall be empowered to review as appropriate the continuance of detention". All detainees, including administrative detainees, must be brought promptly before a "judicial or other authority". This contrasts with ICCPR Article 9(3) which provides that "anyone arrested or detained on a criminal charge" must be brought promptly before a judge or other officer authorized by law to exercise judicial power, but is silent in respect of administrative detainees. The approach of Principle 11, applying this requirement to all detainees, is consistent with a conclusion of the UN Special Rapporteur on torture: "Each arrested person should be handed over without delay to the competent judge, who should decide on the legality of his arrest immediately and allow him to see a lawyer.". As for the meaning of "promptly", the Human Rights Committee's authoritative General Comment on ICCPR 9(3) is instructive: "...in the view of the Committee, delays must not exceed a few days".
In addition, the hearing must deal with issues of substance. To satisfy the elements of Principle 11 (prompt and full communication of reasons for detention, an effective opportunity to be heard, the detainee's right to defend themself), the authorities must provide specific, detailed and individualized reasons for detention, and the hearing must comprise a genuine and searching review. Such a review must involve the active participation of the detainee or the detainee's counsel and should be aimed at determining whether there is sufficient evidence of the specific allegations to justify arrest and detention.
Principle 32 of the UN Body of Principles provides that at any time a detained person or his/her counsel shall be entitled to take proceedings "before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful". The detaining authority "shall produce without unreasonable delay the detained person before the reviewing authority". These proceedings must be "at no cost for detained persons without adequate means". This right to challenge the lawfulness of detention is to be available at any time to any detainee (whether or not detained on a criminal charge) who chooses to exercise it.
These Principles, read in conjunction with the Guidelines issued by the UNHCR, add weight to Amnesty International's concern that EU Member States are not always abiding by accepted norms of international law. EU legislation and policy do not always incorporate fully the following minimum procedural guarantees for detained asylum-seekers, who should have the right:
Detention should in no way obstruct the asylum-seeker's pursuit of their asylum application in a fair and satisfactory asylum determination procedure.
Access to assistance and support
Detained asylum-seekers face problems with all forms of access, including visitor access, access to legal representation, phone calls, ability to send and receive correspondence, access to newspapers and television etc, access to NGOs. Many asylum-seekers in detention are cut off from their families, legal representation and the support of NGOs. The net result is that they are denied access to justice.
Asylum-seekers are involved in a legal proceeding, so they require access to legal representation or advice in order to pursue their case adequately. Furthermore, the distress of flight from their own country can only be exacerbated by isolation from their families and caregivers. There is, unsurprisingly, some evidence of suicide attempts and depression among asylum-seekers who are indefinitely detained with little or no contact with outside assistance.
Prompt and regular access to legal counsel is a fundamental human right, because in many cases only a counsel who has contact with the detainee can assess whether rights have been infringed and seek remedial action. This right is central to the Body of Principles, and is also set out in the Standard Minimum Rules, Rule 93, and the ICCPR, Articles 14(3)(b) and 14(3)(d). The Human Rights Committee's General Comment on ICCPR Article 14 (3) (b) notes: "Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter."
Principle 17 of the Body of Principles provides that a "detained person shall be entitled to have the assistance of legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it." If the detainee "does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in all cases where the interests of justice so require and without payment by him if he does not have sufficient funds to pay".
Principle 18 contains specific provisions aimed at ensuring prompt, adequate and regular access to legal counsel. For example, it provides that a detainee "has the right to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel". It also emphasizes that no suspension or restriction of access to a legal counsel may be allowed "save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order." However, Principle 15 requires that even in such an exceptional case, "communication with the outside world, and in particular his family or counsel, shall not be denied for more than a matter of days". Another provision of Principle 18 states that "interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official" - a requirement also contained in Rule 93 of the Standard Minimum Rules with respect to detainees.
Access to family
Principle 16 of the Body of Principles provides that "promptly after arrest and after each transfer from one place of detention or imprisonment to another, a detained or imprisoned person shall be entitled to notify or to require the competent authority to notify members of his family or other appropriate persons of his choice of his arrest, detention or imprisonment of the transfer and of the place where he is kept in custody". Such notification shall be made "without delay". Rule 92 of the Standard Minimum Rules provides that a detainee "shall be allowed to inform immediately his family of his detention".
Principle 19 provides that a detained or imprisoned person "shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations".
Principle 20 provides that "if a detained or imprisoned person so requests, he shall if possible be kept in a place of detention reasonably near his usual place of residence". Rule 37 of the Standard Minimum Rules requires that visits by family and reputable friends be allowed at "regular intervals".
Access to a medical officer
Principle 24 requires that a "proper medical examination shall be offered to a detained or imprisoned person as promptly as possible after his admission" to the place of custody and "thereafter medical care and treatment shall be provided whenever necessary." This care and treatment "shall be provided free of charge". Principle 25 provides the right to "petition a judicial or other authority for a second medical examination or opinion" and Principle 26 requires that written records of medical examinations be kept, and that access to such records be ensured. Rule 24 of the Standard Minimum Rules is more emphatic as it stipulates an automatic examination of every prisoner.
Medical staff in detention facilities should as part of their regular screening of detainees specifically ask if a person has been tortured. Unless detaining officials know the history of their charges, they risk misconstruing the behaviour of those suffering the after-effects of torture. Behaviour ranging from depression to violence will be exacerbated if the asylum-seeker's trauma is not recognized and managed in light of their special circumstances. The use of solitary confinement to control those deemed to have behavioural problems is but one example of further victimizing a person who has already suffered torture.
The UNHCR Guidelines are of assistance on the appropriate standards for unaccompanied elderly persons, torture or trauma victims, and people with a mental or physical disability. Due to the psychological damage caused by detention, active consideration of possible alternatives should precede any order to detain asylum-seekers who are particularly vulnerable. If vulnerable individuals are detained, this should only be on the certification of a qualified medical practitioner that detention will not adversely affect their health and well-being. In addition there must be regular follow up and support by a relevant skilled professional. Such detainees must also have access to medical services including hospitalization and counselling, should it become necessary.
In addition, the Guidelines emphasize that asylum-seekers should undergo an initial screening at the outset of detention to identify trauma or torture victims for treatment.
Accountability and oversight
Record keeping is a vital element in ensuring that detainees' rights are respected. Principle 12 requires, among other things, that precise information concerning the place of custody be recorded and communicated to the detained person or his/her counsel.
Principle 29 provides that "places of detention shall be visited regularly by qualified and experienced persons" in order to "supervise the strict observance of relevant laws and regulations". These prison inspectors are to be "appointed by and responsible to, a competent authority distinct from the authority directly in charge of the administration of the place of detention or imprisonment". Any detained or imprisoned person "shall have the right to communicate freely and in full confidentiality" with the prison inspectors.
Principle 33 of the Body of Principles requires that a system be available to investigate complaints about mistreatment, in particular torture or other cruel, inhuman or degrading treatment. The UN Convention against Torture and the UN Declaration against Torture also require that complaints of torture or ill-treatment be investigated.
Principle 33 provides that a detained person or his counsel (or a family member) shall have the right to make such complaints to the authorities responsible for the place of detention and to higher authorities (and when necessary, to appropriate authorities vested with reviewing or remedial powers). Every complaint "shall be promptly dealt with and replied to without undue delay". If the complaint is "rejected, or in case of inordinate delay, the complainant shall be entitled to bring it before a judicial or other authority". Principle 33 also emphasizes that no complainant shall suffer prejudice for making a complaint.
Principle 30 requires that disciplinary offences be specified by law or lawful regulations and published. It also requires that detainees "shall have the right to be heard before disciplinary action is taken" and "shall have the right to bring such action to higher authorities for review".
Principle 6 repeats the internationally recognized prohibition of torture and other cruel, inhuman or degrading treatment or punishment. Principle 6 elaborates that the term "cruel, inhuman or degrading treatment or punishment should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental, including the holding of a detained or imprisoned person in conditions which deprive him, temporarily or permanently, of the use of any of his natural senses, such as sight or hearing, or of his awareness of place and the passing of time".
Conditions of detention
According to international standards, conditions of detention for all detainees, including asylum-seekers, should be humane and should respect the inherent dignity of the person. They should be prescribed by law.
Article 7 of the ICCPR requires that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment and Article 10 provides for the right of any detained person to be treated with humanity and with respect for the inherent dignity of the human person.
Drawing on the UN Body of Principles, the UN Standard Minimum Rules and the UN Rules for the Protection of Juveniles Deprived of their Liberty, UNHCR Guideline 10 sets out agreed practices for detained asylum-seekers, in the limited circumstances in which such detention is justified:
Other refugee rights in detention
As well as the right not to be arbitrarily or unlawfully detained, under international standards asylum-seekers and refugees have the following rights if they are in detention: