Alternatives to detention and their practical implementation Tallinn, Estonia 2014

Session overview 1.Global trends 2.Key international research findings on alternatives to detention 3.Description of alternative models 4.Reflection on successful development and implementation strategies

3 Global trends 1. States are increasingly concerned about effective migration management, especially with regards to irregular migration. Custodial detention models have proven financially costly. Custodial detention has led to criticism for their impact on human rights. No evidence that detention deters. 1.There is an increasing global awareness, exploration and implementation of alternatives to detention.

4 Alternatives to Detention (ATD) Photo: Migrant shelter in Lebanon Any legislation, policy or practice that allows for asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved.

Research conducted in 28 countries Highlighting spectrum and the benefits of ATD Community Assessment and Placement (CAP)

ATD programs are most successful when: 1. Individuals are informed and feel they have been through a fair process 1. Focus on early intervention 2. Provide holistic case resolution and case management, not simply a focus on return 1. Conditions are not overly onerous / setting up people to fail 1. Allow individuals to meet their basic needs (housing, legal & welfare supports) 6 Key findings Key research findings

The benefits of ATD are many: High rates of compliance Cheaper than detention Reduce wrongful detention and litigation Reduce overcrowding and long-term detention Protect and fulfill human rights Increase voluntary departure rates for refused cases Improve health and well being Improve integration outcomes for approved cases 7 Overview Benefits

Alternatives maintain high rates of compliance and appearance. 90% average compliance rates A recent study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. 8 Benefits Compliance

Alternatives cost less than detention. On average 80% cost savings Averaging ATD cost globally is $100 / day For example: A cost saving of 93% was noted in Canada, and 69% in Australia, compared with custodial detention costs. 9 Cost savings Benefits

Alternatives increase independent departure and voluntary return rates for refused cases. 65% average – up to 82% reported Examples in Canada, Australia and the US of both refused asylum seekers and irregular migrants demonstrated return rates of between 60% and 69%, while Sweden reported an 82% rate of return from the community among refused asylum seekers. 10 Voluntary return Benefits

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Ensuring a presumption against detention, and detention as a last resort in law and there is a legal mandate for alternatives in law, including: Certain vulnerable groups are not detained Grounds for detention as a last resort and limitations on detention are clearly outlined in law Procedures to direct officers to assess, explore and implement liberty and community-based alternatives in the first instance Step 1 12 Presumption against detention

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States with screening and assessment processes are better placed to make informed decisions on the need to detain, not detain or conditional release, and under what circumstances. Informed decision making Avoid wrongful detention Minimise use of resources Minimise harm Prevent unnecessary immigration detention Step 2 14 Screening and assessment

Step 2 15 Screening and assessment

Step 2 16 Screening and assessment Vulnerability considerations

Assessing relevant strengths and risks, often times related to compliance: Intended destination Community ties Trust/Belief in the process History Stage in the migration process Step 2 17 Screening and assessment Individual case factors

Asylum seekers and irregular migrants are a low risk to abscond if they are awaiting a decision on their case. They are better able to comply and cooperate in the community if they: Are able to meet their basic needs. Have been through a fair and informed process. Are supported to achieve sustainable long- term solutions while awaiting a decision on their case. In transit contexts, individuals appear less likely to abscond, if they are not at risk of detention and refoulement, and remain hopeful of future prospects. Step 2 18 Screening and assessment Individual case factors

Screening and assessment examples USA Tanzania Lebanon Jordan Kenya New Zealand Sweden Australia Belgium Hong Kong

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Assessing the community setting assists in determining factors that support or undermine a person’s ability to remain engaged in process and comply with authorities during case resolution. Decisions regarding referral, support and management required can then be made. Ensuring people can meet their needs and rights are a priority. It is “[o]nly when [irregular migrants] know where they can sleep can they begin to concentrate on other things.” Interview in Turkey, February 2013 Step 3 21 The community setting

Case management is a strategy for supporting and managing individuals whilst their status is being resolved, with a focus on informed decision-making, timely and fair status resolution, exploring all options and improved coping mechanisms and well-being on the part of individuals. Focus on welfare, psychosocial needs and all immigration outcomes Preparing, supporting and empowering individuals throughout their immigration process Improves cooperation and compliance with immigration requirements Step 3 22 Case management The community setting

Successful case management strategies focus on case resolution for those facing return: Identify barriers to departure Stabilize health and assist individuals cope and have trust in the process Assist individuals explore a long-term sustainable solution, such as: –Exploring legal options to remain –Reassessment of new case information –Exploring third country options and relocation to other areas in country of origin –Exploring repatriation support needs Step 3 23 Case resolution The community setting

Community support examples Documentation Legal aid Safe spaces to access information, emergency assistance (e.g. drop in centers) Shelters Open reception centres Assisted voluntary return programs Family or ethnic community Self sufficient/own recognizance Case management

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Step 4 26 Apply conditions if necessary Individual undertakings - Requirements on an individual to comply and cooperate Monitoring & Supervision - Mechanisms such as reporting, registration or nominated address Negative consequences for non- compliance - Such as bail, bond and surety arrangements Intensive case resolution - Involves coordination and case management and return programs

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Step 5 28 Detention as a last resort Detention should only ever be used as a last resort When it is used, it must be: Based in law Individualised Necessary Proportional Least restrictive Time-limited / subject to review Independent access and monitoring

How have ATD models been developed? Legislative reform Policy developments Research Working groups Pilots and programs

30 By assessing the individual context, referring to community programs and applying conditions in the community if required, governments can make informed decisions on individual placement, management and support requirements. ATD mechanisms can reduce the financial and human cost of immigration detention while meeting government and community expectations. Summary

Thank You