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The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants

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From Alice Edwards, Expert Consultant, Division of International Protection, UNHCR.
This background paper was prepared for the Global Roundtable on Alternatives to Detention, to be held 11-12 May 2011.

On 11 and 12 May 2011, the Office of the United Nations High Commissioner for Refugees (UNHCR) and the Office of the High Commissioner for Human Rights (OHCHR) organized the first Global Roundtable on Alternatives to Detention (ATD) of Asylum-Seekers, Refugees, Migrants and Stateless Persons, in Geneva. Thirty eight participants from 19 countries took part, drawn from governments, international organizations, human rights mechanisms, national human rights institutions, national and international non-governmental organizations (NGOs) and academic experts. The discussion was informed by a number of research papers.

The following summary conclusions do not necessarily represent the views of participants, or of UNHCR or OHCHR, but reflect broadly the themes, issues and understandings that emerged from the discussion.

Main messages

  • There is no empirical evidence that detention deters irregular migration, or discourages persons from seeking asylum.
  • The human rights consequences as well as social and economic costs of immigration detention compel investigation, study and implementation of alternatives to detention.
  • Seeking asylum is not a criminal act and asylum-seekers should not, as a consequence, be penalized for the act of seeking asylum through detention.
  • States should avoid criminalizing persons moving irregularly through imposing penal sanctions or conditions of treatment that are not suitable to persons who have not committed a crime.
  • Alternatives to detention2 – from reporting requirements to structured community supervision and/or case management programmes – are part of any assessment of the necessity and proportionality of detention.
  • Alternatives to detention should not be used as alternative forms of detention; nor should alternatives to detention become alternatives to release.
  • All alternatives to detention should be established in law and subject to human rights oversight, including periodic review in individual cases, as well as independent monitoring and evaluation. Individuals subject to alternatives need to have timely access to effective complaints mechanisms as well as remedies, as applicable.
  • Treating persons with respect and dignity, including due regard to human rights standards, throughout the asylum or immigration processes contributes to constructive engagement in these processes, and can improve the rates of voluntary return.
  • Research shows over 90 per cent compliance or cooperation rates can be achieved when persons are released to proper supervision and facilities.
  • More research is needed in the area of alternatives to detention.

Quoted from:

Global Roundtable on Alternatives to Detention of Asylum-Seekers, Refugees, Migrants and Stateless Persons
Geneva, Switzerland, 11-12 May 2011
Summary Conclusions

http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain?page=search&;docid=4e315b882&skip=0&query=Global%20Roundtable%20on%20Alternatives

Full Text from Alice Edwards available:

A. Edwards, Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Person and Other Migrants, UNHCR, Legal and Protection Policy Research Series, PPLA/2011/01.Rev.1, April 2011, available at: http://www.unhcr.org/refworld/docid/4dc935fd2.html;




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