Back to Basics: The Right to Liberty and Security of Person and ‘Alternatives to Detention’ of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants

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Executive Summary

The widespread and growing use of immigration detention has come under considerable scrutiny in recent years on pragmatic (practical and functional) as well as human rights/legal grounds. This study articulates the current state of international law governing detention and its alternatives, and provides a critical overview of existing and possible alternatives to detention (A2Ds) options drawn from empirical research. Research visits were conducted to five countries, namely Australia, Belgium, Canada, Hong Kong, and the United Kingdom. This study contributes to the body of work of the United Nations High Commissioner for Refugees (UNHCR) against the detention of refugees, asylum-seekers and stateless persons, and forms one of the background papers for the global roundtable on the same subject.

Pragmatically, no empirical evidence is available to give credence to the assumption that the threat of being detained deters irregular migration, or more specifically, discourages persons from seeking asylum. Global migration statistics have been rising regardless of increasingly harsh governmental policies on detention. Except in specific individual cases, detention is largely an extremely blunt instrument to counter irregular migration, not least owing to the heterogeneous character of migration flows. Critically, threats to life or freedom in an individual’s country of origin are likely to be a greater push factor for a refugee than any disincentive created by detention policies in countries of transit or destination. More particularly, this research found that less than 10 per cent of asylum applicants abscond when released to proper supervision and facilities (or in other words, up to 90 per cent comply with the conditions of their release). Moreover, alternatives are a significantly cheaper option than detention both in the short and longer term.