Liberty is the best alternative – Q&A with Gottfried Koefner, UNHCR’s Regional Representative for Central Europe

WARSAW, January 2 (UNHCR) – Detaining asylum-seekers is costly and in most cases absolutely unnecessary. It adds to trauma asylum-seekers already experienced. That is why UNHCR is promoting alternative solutions. We see an improvement in limiting detention, but we are not there yet – Gottfried Koefner, UNHCR’s Regional Representative for […]

Two foreigners in their cells at Kętrzyn deportation / detention centre.

WARSAW, January 2 (UNHCR) – Detaining asylum-seekers is costly and in most cases absolutely unnecessary. It adds to trauma asylum-seekers already experienced. That is why UNHCR is promoting alternative solutions. We see an improvement in limiting detention, but we are not there yet – Gottfried Koefner, UNHCR’s Regional Representative for Central Europe said in an interview on the occasion of the Alternatives to Detention conference in Warsaw, 5-7 December 2012.

Do you have any particular expectations regarding the conference?

The conference is an opportunity for us to launch and discuss with government and civil society partners and experts from international agencies the newly-issued guidelines of UNHCR on alternatives to detention. The detention of asylum-seekers should be used as an exception, but it is an increasing feature in European practises.  We need to see what can be the alternatives to physically detaining people when authorities need to pursue their legitimate work in the field of law enforcement.  Furthermore we hope to move from the discussion of alternatives to the next phase, namely the modalities of the actual implementation of the guidelines.  At the moment some states are involved in amending their aliens laws In the near future all EU member states will need to transpose the recasts of a number of EU directives which also contain provisions on detention.  Therefore, it’s a good time to discuss alternatives to detention.

If you were to deliver a message to European policy makers, what would it be?

They need to be aware that when dealing with asylum-seekers they are also dealing with those amongst them who are refugees and whose legal status as refugees will be determined only later often after a long procedure.  They are vulnerable individuals. They are refugees when they arrive due to the reasons which forced them to flee. They had often been victims of serious human rights violations and are traumatized.  For this reason asylum seekers should be detained under very exceptional circumstances only. Some of them may have seen prison bars from inside before when their tormenters persecuted them.  Detention should not be the first to happen upon a request for asylum.  In accordance with international law they need to be treated as refugees from the time of their arrival, with dignity and in a welcoming manner. Asking for asylum is not a crime.  Refuges who seek asylum are not dangerous, but in danger. Most have escaped from serious threats to their life, freedom and physical integrity.

In terms of using detention in Central Europe, are there any burning issues, which require immediateresponse from UNHCR?

We have quite different situations in the region in terms of practises. The same applies to the issue of the conditions in detention.  Practices range from the restriction of movement within larger set-ups or locations to detention in prison-like conditions with application of a high level of security measures. Harsh detention conditions drastically exacerbate the concerns about the impact and proportionality of detention practices on people who have done nothing else but asked for help, i.e. for asylum. I think governments in the region need to be sensitive about the situation of the individuals they are dealing with. They need, if detention cannot be avoided, to ensure that the issues that led to detention are dealt with as a matter of priority and in a speedy manner so that the duration of the period of detention will be as short as possible.  Above all it needs to be avoided that asylum seeking families and children are detained.

Having been the UNHCR Regional Representative for Central Europe for four years now, can you actually say that the situation is improving?

On one hand we see that there is an EU-wide trend to increase detention – also in the context of procedures aimed at determining which country is responsible to deal with an asylum request (Dublin II). This is very sad, because here detention happens only for purposes of administrative convenience: The authorities want to make sure that the person remains at hand, while they are trying to clarify which Dublin II participating state is responsible to deal with the asylum request. People can get detained in that context for weeks and months.  As a consequence sadly we see more and more often that the first thing that may happen to asylum seeking refugees upon asking for help is to be detained – not a very re-assuring, welcoming or adequate treatment of refugees.

In addition we have seen excessive detention in some countries and we felt the need to speak out about that quite loudly. We have also seen deficiencies in some countries in terms of the legal control and legality of detention or the monitoring of detention conditions.  Many of these gaps have been pointed out particularly in 2012 and the good news is that some countries being sensitive to the concerns are reviewing their detention rules and regulations and started changing related practices. The conference shows that there is a great interest in the issue how detention should be handled appropriately in case of asylum-seekers. Also, in this context effectiveness is important.   Excessive and harsh detention practices cause a lot of additional problems, no only the suffering or abrogation of rights of the detained refugees, but also lots of other side effects such as a negative perception of asylum-seekers in society, the negative impact of that on the integration of admitted refugees and last but not least the costs involved:  Detention is the most costly way of accommodating asylum-seeker – costly not only financially, but also politically and from a human point of view.

I think governments start realizing that they are better off if they develop a more sophisticated system of striking the balance between law enforcement and the safeguarding of human rights.  We have seen some encouraging changes and practices in a number of countries. Take Poland, it has had by far the largest numbers of asylum-seekers to deal with and by far not all of them turned out to be refugees, Poland has not reverted to a large scale detention policies, unlike some other countries with much smaller application figures.

In spring 2012 UNHCR published a report in which it sharply criticized Hungarian government for not adhering fully to international standards regarding asylum-seekers.

First of all some practices seemed to deviate not only from international, but also national legal standards reflecting problems in the implementation (and its monitoring) of the existing laws.  Detention had been applied more and more frequently and in an increasingly indiscriminate manner in case of asylum-seekers driven largely by immigration control measures actually designed for illegal immigrants and not for asylum-seekers.

Has anything changed for the better since then?

Yes, very much so. I think we haven’t seen the end of it yet, but we have already seen some very significant progress.  After reports had become available not only from civil society organisations and UNHCR, but also the offices of the Hungarian Ombudsman and of the Prosecutor General and after Police HQ had done their own in-depth review the government seemingly realized that the concerns were not alarmist and required attention. In addition the question had arisen in an increasing number of cases in different European countries, whether asylum-seekers who had transited Hungary before could actually be returned. We are pleased to see that the internal control mechanisms fully stepped in, that key decisions had been taken at the political and legislative level to address and improve the situation.  As a consequence we already see important changes in the administrative practice: Far less detention of asylum-seekers. If they ask for asylum upon their arrival and during their first interview they will no longer be detained.  Safeguards are being put in place to ensure that all applicants have their claim examined as to its merit and that they can await the outcome of the procedure in Hungary. This is all good news.  I would also like to appreciate that throughout the not always easy period when in exercising our protection mandate for refugees we had to loudly raise the issues the Hungarian government counterparts at all levels maintained an open and highly constructive dialogue with us and explicitly appreciated our suggestions for an improvement of the situation.

At the conference new UNHCR’s detention guidelines were handed out to the guests. Basically, the booklet details and enumerates all limitations international law imposes on detention. Could you turn the guidelines inside out and tell what is a justified detention according to UNHCR?

When it comes to asylum-seekers, there are only a few exceptional reasons for detention. One for sure is when in the initial phase there is a need to take down the basic elements of who an asylum-seekers especially when they do not have any documents. Also then the period of detention needs to be as short as possible and handled in a lightest form to ensure e.g. availability. It should take only a few days, not weeks or months.

A second exceptional reason could be the danger that the specific asylum-seeker is going to abscond, before essential procedural steps can be taken. But such intention needs to be substantiated based on an individual assessment of indications for such an intention. It cannot be a practice based on general assumptions and applied indiscriminatingly without specific evidence for applicability in the individual case and not to whole groups or all asylum-seekers.

Also, there could be issues of national security or public health – if someone is, upon initial examination, found to be carrying some sickness and needs to be treated first.

They are all exceptional situations.  Asylum-seekers must not be detained merely because they arrived without a visa or were not able to hold a valid travel document.  That would clearly be against international law which foresees that refugees who are fleeing, should not be punished for being unable to comply with immigration rules.

Some say, creating ideal conditions for asylum-seekers may turn counterproductive – lure economic migrants who would have stayed home, had they not learnt that, say, in Poland once you apply for asylum, you do not get detained and enjoy the full freedom of movement. How do you respond to views like this one?

Deterrence, bad conditions, detention in prison-like conditions etc are not the right answers to such fears which are furthermore largely based on speculations as to the motives of asylum-seekers and migrants.   Even under best circumstances no one takes a decision to migrate easily and refugees most times do not even have the choice when and if to flee, they have to escape and seek a save haven elsewhere.  Also the insinuation that asylum may be sought because of good or simply humane reception conditions is an unfair insinuation which questions the reasons why refugees are fleeing, namely due to persecution and human rights violations, i.e. from serious danger. And why do we expect refugees to seek help and protection where conditions are known to be bad, or where effective protection may not be available?  Countries should rather be proud that they offer humane conditions to the most vulnerable amongst victims of human rights violations and are considered to have a good human rights record including in protection refugees. And in case of the frequently exaggerated problem of unfounded applications for asylum the only effective answer is to have quick, efficient and fair procedures to establish clarity as soon as possible. That is in the interest of everyone including the applicants, the refugees and the receiving countries.

How is Poland coping with detention, compared to other countries in the region?

I think Poland has a very balanced and consistent approach. For a number of years the Polish authorities have been pursuing their goal to improve reception conditions for asylum-seekers and progressed.  For years Poland has handled larger numbers of asylum-seekers than any other country in the region, yet it has always stuck to carrying out procedures appropriately, has not reverted to massive detention though they have also been faced with a high percentage of unfounded cases, of applicants who tried to abscond to other EU countries. It is good to see that despite the thousands of applicants Poland has so far detained only a very small number of them and for a limited period of time.  Poland seems to manage to strike the appropriate balance. Then, we can still talk about aspects of conditions in detention, and what can be improved, but these are details to which to government counterparts are open for discussion. The overall picture is good and Poland is currently looking actively into possible arrangements for the application of alternatives to detention.

Some seem to forget that adopting alternatives is better than detention not only from asylum-seekers’ point of view. It is also economically viable.

That’s true. Detention is the most costly way of dealing with hosting asylum-seekers. It is also stressful not only for detainees, but also for guards, leads to all sorts of difficult situations. But the human cost is the most important:  Medical experts have shown the quick increase in negative psychological and health impacts the longer detention lasts.  Even if after months in detention asylum-seekers are granted a stay permit and they can integrate in the country, they may experience negative consequences of detention for much longer which mill make their eventual integration just much difficult.  Let’s face it: when we come to asylum-seekers or refugees, we are often talking about people who have already been traumatized before.

They arrive already with a big rucksack filled with problems. If they end up in detention, it will only exacerbate their difficulties. If you take all this into account, then it becomes obvious that the best alternative to detention is liberty.

Gottfried Koefner was interviewed by Rafał Kostrzyński, Warsaw, Poland