Widespread Detention Practices Run Afoul of International Legal Protection for Refugees and Asylum Seekers

Publication Date: 
Thursday, June 11, 2015
Emanuel and Jonata fled indefinite military conscription in Eritrea, only to find themselves in a Libyan detention centre  © Tom Westcott/IRIN

Refugees and asylum seekers are facing increasing difficulties accessing international protection as the international community and host nations struggle to respond to the record 51.2 million displaced persons worldwide, including 16.7 million refugees. In many countries receiving large numbers of irregular migrants, the detention of refugees and asylum seekers, often en masse, has become commonplace, running afoul of international human rights law and refugee protections.

While the detention of asylum seekers is not prohibited outright, international refugee law and international human rights law place severe restrictions upon the practice. Under IHRL, everyone has a right not to be subject to arbitrary detention: “Everyone has the right to life, liberty and security of person … No one shall be subjected to arbitrary arrest, detention or exile” (Art.3 and 9, UDHR; Art.9 (1) and 10, ICCPR; Art.5, ECHR; Art.7, ACHR; Art.6, ACHPR; Art.5, CIS; Art.14, AL; Art.16, CMW). Nonetheless, international law also acknowledges that states, in their sovereign capacity, may place limitations upon the freedom of movement in the interest of public order, including the suppression of crime. Similarly, IHRL permits derogation in times of public emergency. Considering that seeking asylum itself is not an unlawful act – IHRL guarantees all persons “the right to seek and to enjoy in other countries asylum from persecution”(Art. 14, UDHR) – and that even large refugee inflows would not generally constitute a public emergency – international law requires states to respect the rights of asylum seekers to personal liberty and freedom of movement.

In cases where detention is used, international law requires that it be in accordance with and authorized by law. Implicit in this requirement is protection against “arbitrary” detention and treatment, as well as guarantees of due process, non-discrimination, and individual consideration, meaning that anyone detained has the right to challenge the lawfulness of their detention in court. Furthermore, detained persons must be treated with dignity and respect, and not subjected to torture or cruel, inhuman or degrading treatment. These principles are outlined in UNHCR’s Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, which reflects applicable international human rights and refugee law on the issue.

With regard to the detention of children – who constitute about half of all refugees – the best interests of the child should be a primary consideration, entailing treatment “which takes into account the needs of persons of his or her age”(Art. 37(c), CRC). Under international refugee law, it is unlawful for a state to expel or return a refugee, against his or her will, to a territory where he or she fears threats to life or freedom – known as the principle of “non-refoulement”.

Many countries, however, routinely violate these rights of refugees and asylum seekers by engaging in en masse detention for extended periods of time, without individual determinations, and in some cases under deployable conditions. The small island nation of Malta, for example, as a key entry point into Europe for irregular migrants, systematically detained migrants who arrive by boat – including asylum seekers – in some cases for up to 18 months. Australia is one of the few nations to impose mandatory detention on irregular migrants, including asylum seekers, as part of a deterrence policy widely criticized as both ineffective and disrespectful of human rights. A significant portion of detainees in both countries are children, though Malta’s Primer Minister recently pledged to end the practice of detention for migrant children.

The situation is particularly grave for refugees and asylum seekers detained in Libya – prime transit country for irregular migrants from Sub-Saharan Africa and Syria to Europe. Many migrants in Libya are held in government-run detention centers, often for extended periods of time and in squalid conditions, which have been reported to include severe overcrowding, poor sanitation, abuse and torture. In fact, the persecution and harassment of migrants in Libya – amidst deteriorating security conditions and escalating conflict – has helped fuel the recent surge in migrants departing Libya’s shores for Europe, many of whom have died in the process.

Detention practices in these countries are reflective of a concerning trend among states to take restrictive, law enforcement approaches towards refugees – and irregular migrants more broadly – which violate the fundamental rights and protections guaranteed to these persons under international law. The precarious situation of refugees and asylum seekers in many transit and host countries also reflects a gap in international refugee law, which guarantees individuals the right to seek asylum without assigning responsibility to states for determining asylum claims. In other worlds, while refugees may seek asylum, no state has the positive obligation to grant it – only to avoid engaging in non-refoulement. As a result, refugees and asylum seekers – individuals already fleeing from conflict and persecution in their countries of origin – face myriad difficulties in obtaining protection abroad. In order to adhere to their international obligations towards these vulnerable persons, states must end the practice of systematic, arbitrary and prolonged detention of irregular migrants, while working with the international community to find sustainable, rights-respecting solutions for the protection of refugees and asylum seekers. 

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