Seminar on detention of asylum-seekers and alternatives to detention UNHCR Position and Relevant case-law of the European Court of Human Rights UNHCR Representation to the European institutions in Strasbourg

I. Mandate/Terminology II. UNHCR Position on detention of refugees III. Relevant ECHR case-law IV. EU law Detention / Alternatives to detention

UNHCR Mandate Refugees / Asylum-seekers = / Internally Displaced Persons (IDPs) = Stateless persons = Mandate / Terminology

1951 Refugee Convention / Article 31 * * * 1.The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article I, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. 2.The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. The contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country. UNHCR Position on detention of refugees

Executive Committee Conclusions No October 1986 * * * The ExCom (…) (b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law 1. to verify identity 2. to determine the elements on which the claim to refugee status or asylum is based 3. to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum or 4. to protect national security or public order (…) UNHCR Position on detention of refugees

Guideline 2: Asylum-seekers should not be detained Guideline 3: Exceptional Grounds for Detention 1. cases in which identity is undetermined or in dispute 2. Preliminary interview 3. cases where there is an intention to mislead the authorities 4. cases where there is evidence to show that the asylum- seeker has criminal antecedents and/or affiliations likely to pose a risk to public order/national security Guideline 4: Alternatives to Detention UNHCR Position on detention of refugees February 1999 / UNHCR Revised Guidelines on applicable criteria and standards relating to the detention of asylum-seekers * * *

Guideline 5 – Procedural safeguards Guideline 6 – Children Guideline 7 – Vulnerable Persons Guideline 8 – Women Guideline 9 – Stateless persons Guideline 10 – Conditions of detention UNHCR Position on detention of refugees

Necessity test / Is detention necessary? * * * Holistic test, taking into account: - Lack of empirical evidence that detention deters irregular migration or discourages persons from seeking asylum - Human rights consequences are important - Social and economic costs are important - Seeking asylum is not a criminal act Detention = a measure of last resort UNHCR Position on detention of refugees

Alternatives to detention * * * -90% compliance or cooperation rates can be achieved when persons are released to proper supervision and facilities -There are alternatives to detention ≠alternative forms of detention -Examples (Open reception centre, registration, group based organisation, guarantees, reporting, case management etc.) UNHCR Position on detention of refugees

Article 5 ECHR * * * 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 [first limb] of a person against whom action is being taken with a view to deportation or extradition. [second limb] Relevant ECHR case-law

Deprivation of liberty * * * If deprivation of liberty = Article 5 applies - Airport transit zones Amuur v. France Shamsa v. Poland - Reception centres Merie v. The Netherlands -UNHCR Mandate / Detention pending deportation (failed asylum-seekers) Relevant ECHR case-law

Compatibility of the measure with Article 5 ECHR * * * Lawfulness review… Nolan and K. v. Russia …involves an arbitrariness review Saadi v. The United Kingdom Relevant ECHR case-law

Arbitrariness criteria ≠ Necessity test? * * * -Carried out in good faith Rusu v. Austria -Closely connected to the purpose of preventing unauthorized entry Gebremedhin v. France Auad v. Bulgaria Relevant ECHR case-law

Arbitrariness criteria ≠ Necessity test? * * * -Conditions of detention should be appropriate S.D. v. Greece Tabesh v. Greece Abdolkhani and Karimnia v. Turkey -Length of detention should not exceed that reasonably required for the purpose pursued ≠ Necessity test? Relevant ECHR case-law

Alternatives to detention = Necessity test? * * * Direct references in the recent Court’s case-law Mikolenko v. Estonia Raza v. Bulgaria Auad v. Bulgaria Detention of unaccompanied children = last resort measure Rahimi v. Greece Relevant ECHR case-law

Asylum Procedures Directive 2005/85/EC * * * Article 18 – prohibition against detention of an asylum- seeker + speedy judicial review Article 16(2) –legal advisor or counsellor has access to closed areas, such as detention facilities & transit zones Article 21(1) –UNHCR allowed to access to asylum- seekers, including those in detention & in airport or port transit zones EU acquis

Reception Conditions Directive 2003/9/EC * * * Art 2(k) – defines detention as “confinement of an asylum seeker by a MS within a particular place, where asylum seeker in deprived of his/her freedom of movement. Recital 10 & 13 – reception of asylum applicants in detention should be specifically designed to meet their needs

Returns Directive 2008/115/EC * * * - for asylum-seekers whose claim has been rejected - codifies some well-established principles of international law against arbitrary detention (Art 15-18) EU acquis

CJEU jurisprudence * * * Interpretation of the Returns Directive: –Kadzoev v. Bulgaria C-357/09 (30/11/2009) –El Dridi, C-61/11 (28/04/2011) EU acquis