Alternatives to detention and their practical implementation IDC Europe Regional Workshop – Brussels, March

2 Session overview 1 - Global trends 2 - International research on alternatives to detention, highlighting spectrum of models 3 – 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: practices in 28 countries considered Highlighting spectrum and the benefits of ATD Community Assessment and Placement (CAP)

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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 One 7 Presumption against detention

Is there any presumption against detention in your country? For anyone? Who and why? Law, policy or practice? Has/how has the presumption against detention been transposed to national law? One 8 Presumption against detention

Informed decision making Avoid wrongful detention Minimise use of resources Minimise harm Prevent unnecessary immigration detention 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. Two 9 Screening and assessment

10 Screening and assessment Two

Vulnerability considerations Two

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

How do your governments decide whether to detain or not? Is screening & assessment used in decision making regarding detention or ATD in your country? Who conducts it? What is the purpose of the assessment? E.g. To screen people into detention or to screen people out? (Ideal would be to screen in – with the presumption being that detention not necessary) Is it effective? Is it reviewable? What are the gaps? Two 13 Screening & assessment

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 Three 14 Community setting ATD housing project for families in Brussels, Belgium

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) 15 Alternatives to immigration detention Key research findings

Case management Comprehensive, co-ordinated & individualised approach Preparing, supporting and empowering individuals throughout their immigration process to make informed decisions Ensure individuals can meet their needs & access rights whilst their status is being resolved Focus on welfare, psychosocial needs and all immigration outcomes Can improve cooperation and compliance with immigration requirements as assists individual to stay engaged with processing

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 Three 17 The community setting

What do community support mechanisms look like? Examples include: 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

Can you think of examples of good services and procedures your government provides for other populations of concern, e.g. for children, the elderly, the sick, homeless persons, those without money for lawyers? Have any of these been used for people at risk of detention? Could they be? Do any of the following exist for people at risk of detention? –Documentation –Case management –Services for basic needs –Legal aid Three 19 Community placement

Four 20 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

What conditions are placed on individuals living in the community in your country? Are the conditions subject to review? Are they necessary, proportionate? What is the purpose behind the current or intended use of conditions? How do we move perspective from government on conditions to less restrictive forms of detention? Four 21 Conditions

Five 22 Detention as a last resort Detention should only ever be used as a last resort. Community-based alternatives must be pursued first. Where used, there should be established: -Grounds for detention in law -Avenues for release -Time limits -Access to judicial review/legal advice -Minimum standards/conditions -Independent monitoring

23 Legislative reform Policy developments Research Working groups Pilots and programs How have ATD models developed? Lessons learnt from ATD models

24 Detention should only ever be used as a last resort 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 and prevent unnecessary detention These mechanisms reduce the financial and human cost of immigration detention while meeting government and community expectations Summary

Thank you

Who should screen & assess? State obligation to ensure no unlawful detention Point of first contact – police, border officer, immigration official Judiciary Detention/prison officers Collaboration with other actors Lawyers, Social workers, UNHCR/IOM, others?

Where to screen & assess? Point of detection – e.g. at border, registration point In community In detention Consider: Privacy, confidentiality, information management Regular review