UNHCR releases new guidelines on detention of asylum-seekers

Briefing Notes, 21 September 2012

This is a summary of what was said by UNHCR spokesperson Alice Edwards (Head of Legal Section, Division of International Protection) to whom quoted text may be attributed at the press briefing, on 21 September 2012, at the Palais des Nations in Geneva.

UNHCR is today issuing new guidelines on the detention of asylum-seekers. The guidelines represent UNHCR policy and are intended as advice for governments and other bodies making decisions on detaining people.

As a principle, UNHCR opposes detention of people seeking international protection. The new guidelines make clear that seeking asylum is not a criminal act, and that indefinite and mandatory forms of detention are prohibited under international law. We are disappointed that many countries continue to hold asylum-seekers in detention, sometimes for long periods and in poor conditions, including in some cases in prisons together with common criminals.

UNHCR is particularly concerned that detention is in growing use in a number of countries. Our research shows that irregular migration is not deterred even by stringent detention practises, and that practical alternatives to detention do exist. In addition, there are well-known negative and at times serious physical and psychological consequences for asylum-seekers in detention.

The new guidelines, reflecting the current state of the international law, supersede the ones we last issued in 1999. They recognize the phenomenon of irregular migration as well as mixed movements of refugees and migrants that can strain asylum systems in many countries. This is a particular challenge for governments and some of them respond to this phenomenon through detention policies and practices, extending it at times to asylum-seekers. The fundamental right to liberty and the prohibition of arbitrary detention applies to all people regardless of their immigration or other status. The right to seek asylum entails open and humane reception arrangements for asylum-seekers. Recent research on alternatives to detention, commissioned by UNHCR, shows that with community-based supervision arrangements, more than 90 per cent of asylum seekers comply with conditions of release from detention.

UNHCR calls on states to make better use of alternatives to detention. These can include various forms of reporting requirements to community and supervision schemes or accommodation in designated reception centres but with guaranteed freedom of movement. Such solutions are important features of immigration and asylum regimes. Alternatives to detention are also far more cost-effective than detention. UNHCR will continue to carry out research to identify and promote good practices related to alternatives to detention of asylum-seekers and remains fully engaged on this issue at international and national levels.

We stress our view that unaccompanied children should not be detained. UNHCR calls on governments to also pay special attention to vulnerable asylum-seekers such as victims of torture and trauma, older persons or persons with disabilities. Detention should be a measure of last resort, prescribed by national laws and implemented only where necessary and proportionate to a legitimate purpose in conformity with international standards.

In line with the growth in international, regional and national monitoring and inspection bodies, we stress that detention should be subject to independent monitoring and inspection, including by UNHCR.

SPEAKER: Alice Edwards, Head of Legal Section, Division of International Protection

For further information on this topic, please contact:

  • In Geneva: Adrian Edwards on mobile +41 79 557 91 20
  • Andrej Mahecic on mobile +41 79 200 7617
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Statelessness and Women

Statelessness can arise when citizenship laws do not treat men and women equally. Statelessness bars people from rights that most people take for granted such as getting a job, buying a house, travelling, opening a bank account, getting an education, accessing health care. It can even lead to detention.

In some countries, nationality laws do not allow mothers to confer nationality to their children on an equal basis as fathers and this creates the risk that these children will be left stateless. In others, women cannot acquire, change or retain their nationality on an equal basis as men. More than 40 countries still discriminate against women with respect to these elements.

Fortunately, there is a growing trend for states to remedy gender discrimination in their nationality laws, as a result of developments in international human rights law and helped by vigorous advocacy from women's rights groups. The women and children depicted here have faced problems over nationality.

Statelessness and Women

East Africans continue to flood into the Arabian Peninsula

Every month, thousands of refugees, asylum-seekers and migrants from Somalia and Ethiopia cross the Gulf of Aden or the Red Sea to reach Yemen, fleeing drought, poverty, conflict or persecution. And although this year's numbers are, so far, lower than in 2012 - about 62,200 in the first 10 months compared to 88,533 for the same period last year - the Gulf of Aden remains one of the world's most travelled sea routes for irregular migration (asylum-seekers and migrants). UNHCR and its local partners monitor the coast to provide assistance to the new arrivals and transport them to reception centres. Those who make it to Yemen face many challenges and risks. The government regards Somalis as prima facie refugees and automatically grants them asylum, but other nationals such as the growing number of Ethiopians can face detention. Some of the Somalis make their own way to cities like Aden, but about 50 a day arrive at Kharaz Refugee Camp, which is located in the desert in southern Yemen. Photographer Jacob Zocherman recently visited the Yemen coast where arrivals land, and the camp where many end up.

East Africans continue to flood into the Arabian Peninsula

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A photo essay by Shawn Baldwin and Johan Bävman

A photograph of Syrian refugee, Mahmoud, shows the nine-year-old looking wistfully out of the window of an apartment block in the Egyptian capital, Cairo. Perhaps he is thinking of happier days at school in his home town of Aleppo or maybe he is wondering what life will be like when he and his family are resettled in Sweden. When the image was taken late last year, Mahmoud had not been able to attend school for two years. His family had fled Syria in October 2012. Like 300,000 other Syrians, they sought shelter in Egypt, where life was tough - and became tougher in 2013, when public opinion began to turn against the Syrians as Egypt struggled with its own problems. Mahmoud became the target of bullies, even at one point being physically attacked. Afterwards, he refused to leave the rented family apartment in 6th of October City, a drab, sand-swept satellite suburb of Cairo.

Mahmoud's father tried to send him to Italy on a smuggler's boat, but the vessel was fired on and the traumatized boy ended up spending five days in a local detention centre. Once back home, he fell target to the bullying once more. But his case came to the attention of UNHCR and the refugee agency recommended Mahmoud and his family for resettlement. In January 2014, Mahmoud and his family flew to Sweden to begin a new life in the small town of Torsby, where he runs and plays outside without fear - he even had his first snowball fight. And now he is back at school.

Mahmoud's Journey: A Young Syrian Survives Being Shot At, Detained and Bullied to Find a New Life in Sweden

The end of a long, silent journey: Two Eritreans in Libya Play video

The end of a long, silent journey: Two Eritreans in Libya

Two Eritreans set out on a perilous journey to Europe, crossing Sudan and the Sahara arriving in Libya during its 2011 revolution. They arrive in Tripoli having avoided the risks of detention and despite contending with a crippling handicap: both David and his wife Amitu are deaf and mute.
Surviving in the City: Kuala Lumpur, Malaysia Play video

Surviving in the City: Kuala Lumpur, Malaysia

Malaysia is a largely urban country, with 60 per cent of the population living in cities. Life for a refugee in Kuala Lumpur is challenging. Refugees cannot work legally and most live in fear of detention, despite having received a refugee card from UNHCR.