Detention should be a measure of last resort

 Thursday 13, December 2012

Putting asylum-seekers behind bars is common in many European countries, including Central Europe. Detainees are often not informed of the reasons and duration of their confinement, and do not get proper legal assistance. Detention centre in Biała Podlaska, Poland.

WARSAW, December 13 (UNHCR) – Representatives of UNHCR and human rights NGOs tried to encourage governments in Central Europe to curb the detention of asylum-seekers and use alternative solutions at a meeting in Warsaw.

Participants at the Alternatives to Detention Meeting in Poland (5-7 December 2012) discussed ways to discourage governments from detaining asylum-seekers and considered possibilities for strategic litigation in cases of unlawful or arbitrary detention or when conditions in detention centres fail to meet acceptable standards.

“Detention of people seeking international protection is increasing across Europe. We need to see what alternatives authorities in European states can use instead of physically detaining asylum-seekers. The conference is an opportunity for us to discuss with our partners, both from governments and NGOs the newly-issued guidelines on alternatives to detention,” said Gottfried Koefner, UNHCR Regional Representative for Central Europe.

During the conference it became clear that the issue is still current, and the practice of putting asylum-seekers behind bars remains common in many European countries. Worse still, detainees are often not informed of the reasons and duration of their confinement, and do not get proper legal assistance. That leaves them unaware of what is going to happen to them, adding to traumas many have already experienced in their countries of origin.

In September 2012, concerned at the growing number of asylum-seekers in detention, UNHCR issued new guidelines to provide advice to government authorities responsible for shaping migration policies. UNHCR believes that detention of people seeking international protection should be a measure of last resort. The reasons behind that standpoint are many.

Detention often violates human rights, including the right to liberty. Seeking asylum is not a crime and should not be punished. Putting people behind bars, even for short periods, has been proven harmful for health and wellbeing. It is also counterproductive in achieving compliance with final decisions; asylum-seekers who await decision regarding their status in the community, better co-operate with the authorities. On top of that, detention is much more costly than alternative solutions.

“According to international law asylum-seekers should be received in a welcoming manner and their request for protection should be examined, but not by detaining them, even putting behind prison bars as it happens in some countries.

 For this reason, since asking for asylum is not a crime, and since these people are not dangerous, rather escaping a danger, there is no need to detain them. Governments should refrain from detention, and it should indeed be limited to exceptional cases, and to a minimum period of time to pursue these specific issues,” Koefner said.

But governments sometimes hold a different view. Rafał Rogala, Head of Polish Office for Foreigners, said he was aware that in exercising their right to receive protection, asylum-seekers are often forced to arrive at the borders without prior authorization.

 He also gave his assurances that Polish authorities understand that following the UNHCR detention guidelines, asylum-seekers should normally be detained as a last resort and applied only where it pursues a legitimate purpose, is based on an assessment of the individual’s particular circumstance, and is not arbitrary.

“However, we face challenges to national asylum systems caused by irregular migration. The range of abuse of asylum systems in the EU is demonstrated above all by low rates of recognition of asylum applicants.

In this complex and complicated circumstances, we need to strike a balance between the rights to liberty and security of person and the right to seek asylum on the one hand and the need to prevent abuse of asylum system on the other,” said Rogala.

A number of EU directives are now being transposed by several countries in the region which are reviewing legislation in regard to detention, including what criteria are applied and what alternatives can be used.

For some NGOs, however, reviewing existing national laws does not always lead to a desired effect. Tomasz Sieniow, from Poland’s Rule of Law Institute, pointed out that the draft of the new law on foreigners includes provisions allowing for six-month initial detention of irregular migrants as compared to the current 60 to 90 days.“This proposal is incompatible with European attempts to find alternatives to detention,” Sieniow concluded.

 The conference brought together almost 50 delegates from Central Europe (Bulgaria, Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia), EU Commission and EU Fundamental Rights Agency. Poland was chosen as a host country as it receives more asylum applications than any other in Central Europe. Last year 6,901 out of 13,153 applications in Central Europe were lodged in Poland.

By Rafał Kostrzyński in Warsaw, Poland