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Taiwan: Alternatives to Detention 2013
- 1. www.idcoalition.org Alternatives to detention and their practical implementation 替代收容及實際措施 Introducing the CAP model 簡介社區評估及安置模式
- 2. www.idcoalition.org Alternatives to immigration detention 移民移工收容的替代措施 International developments 國際發展 1. Detention costly, damages and doesn’t deter 收 容花費高，造成權益損害，更無法達成嚇阻效 果 www.idcoalition.org 2
- 3. www.idcoalition.org Alternatives to immigration detention 移民移工收容的替代措施 International developments 國際發展 1. Detention costly, damages and doesn’t deter 收容 花費高，造成權益損害，更無法達成嚇阻效果 2. Increasing shift from detention as a first resort, to detention as a last resort 收容逐漸 從首要措施，改變成為最後手段 www.idcoalition.org 3
- 4. www.idcoalition.org Alternatives to immigration detention International developments 國際發展 2. Alternatives to Detention (ATD) increasingly on international agenda and nationally implemented 替代收容逐漸成為國際議題並在各國國內被施 行 3. ATDs are cheaper and more humane than detention and can be effective in meeting government requirements of compliance and co- operation. 替代收容比收容更人性化，更有效 ” ” ” ”解決政府對於 遵從率 及 合作 的需求 www.idcoalition.org 4
- 5. www.idcoalition.org Alternatives to immigration detention 替代收容 Definition: 定義 Any legislation, policy or practice that allows for asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved. 允許尋求庇護者，難民及移民移工被安置在社區中， 可以自由行動，直到他們的狀態被確認並處理完 的任何立法，政策或措施 www.idcoalition.org 5
- 6. www.idcoalition.org Alternatives to immigration detention International trends 1. ATD increasingly on international agenda and nationally implemented 2. Increasing shift from detention as a first resort, to detention as a last resort www.idcoalition.org 6
- 7. www.idcoalition.org Alternatives to immigration detention International research findings 國際研究發現 1. Release provisions 釋放規定 2. Community models 社區模式 3. Conditional release 有條件釋放 www.idcoalition.org 7
- 8. www.idcoalition.org 1. Release provisions 釋放規定 • Procedural safeguards (judicial review, court order, parole, time limits etc) 程序保障 : 法 院審查或命令，保釋，時間限制 • Administrative and discretionary release provisions 行政裁量 • Registration and documentation 登記及記 錄 • Vulnerable group release 釋放弱勢族群 • Own recognizance 自我具保 • Guarantors 保證人 • Regularization • Adhoc Church shelter on the South African/Zimbabwean border 8
- 9. www.idcoalition.org 2. Community models: 社區模式 • Open reception centre 開放接待中心 • Ethnic community 族群社區 • Shelters 庇護所 • Family/community group/faith based organisation/NGO 家庭 / 社區團體 / 宗 教團體 / 非政府組織 • Case management programs 個案管理 ATD housing project for families in Brussels, Belgium 9
- 10. www.idcoalition.org 3. Conditional release: • Individual undertakings 個人承諾 – requirements on an individual to comply and cooperate • Monitoring 監督– Mechanisms such as reporting, registration or nominated address • Supervision 督導– Mechanisms such as interaction and evaluation of individual cases • Negative consequences for non- compliance 不遵從的負面結果– such as bail, bond and surety arrangements • Intensive case resolution 密集個案管理– Involves coordination and case management and return programs 10
- 12. www.idcoalition.org Alternatives to immigration detention How were these implemented: • Legislative reform 修法 • Policy developments 政策發展 • Research 研究 • Working groups 工作小組 • Pilots and programs 試點計畫 12
- 13. www.idcoalition.org Developing alternatives International examples: USA – Community sponsor release program: 13
- 14. www.idcoalition.org Developing alternatives International examples: USA – Community sponsor release program: •Detention reform process including working group and research – 2008 US Department of Homeland Security/NGO Working Group 14
- 15. www.idcoalition.org Developing alternatives International examples: USA – Community sponsor release program: •Detention reform process including working group and research – 2008 •Development of risk assessment tool – 2011 US Department of Homeland Security/NGO Working Group 15
- 16. www.idcoalition.org Developing alternatives International examples: USA – Community sponsor release program: •Detention reform process including working group and research – 2008 •Development of risk assessment tool – 2011 •Community sponsor release program between ICE and LIRS - 2013 •Exploration of case management and alternatives for vulnerable groups - Ongoing US Department of Homeland Security/NGO Working Group 16
- 17. www.idcoalition.org Most successful programs: 1.Individuals are informed and feel they have been through a fair process 2.Focus on early intervention, holistic case resolution, exploring all legal options for individuals, not just a focus on return 3.Ensure conditions/requirements are not overly onerous setting up people to fail 4.Include: Case management, housing, legal & welfare supports
- 18. www.idcoalition.org Most successful programs: 5.Identify key performance indicators: E.g cost, compliance and wellbeing 6.Utlise pilots and working groups to research, test and explore implementation of ATDs, and better understand the target population and local context. 7.No one mechanism for all contexts
- 19. www.idcoalition.org International research Two key findings: 1) Mechanisms which prevent unnecessary detention ” ”機制以避免 非必要的收容 2) Strategies for effective and humane case resolution in the community 社區有効及人性的 個案解決策略 www.idcoalition.org 19
- 22. www.idcoalition.org Presumption against detention Ensuring a presumption against detention, and detention as a last resort in law and there is a legal mandate for alternatives in law, including: • Certain vulnerable groups are not detained • Grounds for detention as a last resort and limitations on detention are clearly outlined in law • Procedures to direct officers to assess, explore and implement liberty and community-based alternatives in the first instance Step 1
- 23. www.idcoalition.org Screening & Assessment States with screening and assessment processes are better placed to make informed decisions on the need to detain, not detain or conditional release, and under what circumstances. 23
- 26. www.idcoalition.org Legal Obligations Assessing the legal basis to detain: – Whether alternatives are required or have been explored – Groups that should not be detained – If other legal grounds for stay in a country have been met, i.e. status or visa decisions – Time limits pertaining to a person’s detention 26
- 27. www.idcoalition.org Identity, Health and Security checks • Health checks on arrival • Identity - Release of individuals cooperating with establishing identity or awaiting decision; sworn affidavits of identity. • Security – Streamlined and reviewable checks related to national security and public order; release of individuals assisting and complying with security check process, avoiding prolonged detention. 27
- 30. www.idcoalition.org Individual case factors Relevant in assessing risk of absconding: – Stage in the migration process – Intended destination – Community ties – Belief in the process – Character 30
- 31. www.idcoalition.org Ensuring compliance Asylum seekers and irregular migrants are a low risk to abscond if they are awaiting a decision on their case. They are better able to comply and cooperate in the community if they: – Are able to meet their basic needs – Have been through a fair and informed process – Are supported to achieve sustainable long-term solutions while awaiting a decision on their case. – In transit contexts, individuals appear less likely to abscond, if they are not at risk of detention and refoulement, and remain hopeful of future prospects.
- 32. www.idcoalition.org Community Assessment Assessing the community setting assists in determining factors that support or undermine a person’s ability to comply with liberty and release conditions: • Ability to meet basic needs • Documentation • Legal advice and interpretation • Case management 32
- 33. www.idcoalition.org • Case management is a strategy for supporting and managing individuals whilst their status is being resolved, with a focus on informed decision-making, timely and fair status resolution, exploring all options and improved coping mechanisms and well-being on the part of individuals. • Focus on welfare, psychosocial needs and all immigration outcomes • Preparing, supporting and empowering individuals throughout their immigration process • Improves cooperation and compliance with immigration requirements 33
- 34. www.idcoalition.org Conditional Release • Individual undertakings • Monitoring • Supervision • Negative consequences for non-compliance • Intensive case resolution 34 Step 4
- 35. www.idcoalition.org Intensive Case Resolution Case management strategies for cases facing return: • Identify barriers to departure • Stabilize health and assist individuals cope and have trust in the process • Assist individuals explore a long-term sustainable solution, such as: – Exploring legal options to remain – Reassessment of new case information – Exploring third country options and relocation to other areas in country of origin – Exploring repatriation support needs
- 36. www.idcoalition.org Intensive Case Resolution Return preparation programs Examples include: • Return preparation counseling • Legal advice on options to remain or return lawfully • Health and welfare assistance • Case management assistance • Travel and repatriation assistance (AVR)
- 37. www.idcoalition.org Detention as a last resort • Grounds for detention in law • Avenues for release • Length of time • Judicial review/legal advice • Standards/Conditions/Monitoring
- 38. www.idcoalition.org Benefits • High rates of compliance • Cheaper than detention • Reduce wrongful detention and litigation • Reduce overcrowding and long-term detention • Protect and fulfill human rights • Increase voluntary departure rates for refused cases • Improve integration outcomes for approved cases • Improve health and well being 38
- 39. www.idcoalition.org Benefits • Alternatives cost less than detention 80% average saving, averaging $100 a day For example: A cost saving of 93% was noted in Canada, and 69% in Australia, on alternatives to detention compared to detention costs. 39
- 40. www.idcoalition.org Benefits • Alternatives maintain high rates of compliance and appearance 90% average compliance rates A recent study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. 40
- 41. www.idcoalition.org Benefits • Alternatives increase independent departure and voluntary return rates for refused cases 替代收容增加 了被駁回的個案自願離境及自願回國的比率 65% average – up to 82% reported 平均 65% 增加到 82% Examples in Canada, Australia and the US of both refused asylum seekers and irregular migrants had return rates of between 60% and 69%, while Sweden reported an 82% rate of return from the community among refused asylum seekers. 加拿大，澳洲，美國那些被拒絕的尋求庇護者及非 正規移民回國比率在 60-69% 間，瑞士以社區安置 那些被駁回的尋求庇護者回國比率高達 82% 41
- 42. www.idcoalition.org Key message By assessing the individual and community context and applying conditions in the community if required, governments can make informed decisions on individual placement, management and support requirements. 評估個人及社區，若需要可以在社區 中，設置條件，政府可被告知並決定個人的安置， 管理和支援 These mechanisms reduce the financial and human cost of immigration detention. while meeting government and community expectations. 這些機制將減少政府花 在移民收容措施所需要財務及人力的資源，又能符 合政府及社群的期待 42
- 44. www.idcoalition.org Developing alternatives International examples: • Belgium and Japan – Using CAP as a basis for exploration of current system and release of vulnerable groups on provisional stay. Key steps: • Presume detention is not necessary • Analyse current system • Assess the detention population (individual) • Explore community options • Apply conditions if required • Pilot, develop and expand alternatives in policy and law. 44
- 45. www.idcoalition.org Developing alternatives International examples: • Australia – Community Care Pilot – An early intervention model of community-based welfare support legal advice and counseling for asylum seekers. • Aim – Assist asylum seekers and irregular migrants through their immigration pathway to be better prepared and supported if they receive a visa or are required to depart the country • Outcomes – 1,000 people in 2 years. Of those refused, more than 60% voluntarily departed, and less than 3% absconded. 69% cheaper and improved welfare of asylum seekers and positive collaboration between the Government and community sector 45
- 46. www.idcoalition.org Developing alternatives International examples: (non-European) • Canada – Alternative policy and program developed between government and a lead agency Benefits of collaboration: • Improves trust in the process • Increased compliance and wellbeing outcomes • Increased transparency • Prevention and rapid response • Assistance with complex cases • Transitional support including release, integration and repatriation assistance etc. 46
- 47. www.idcoalition.org • Identifying a target population to test alternatives to detention • Collaboration of key stakeholders (including government and civil society) to develop, implement and monitor • Identifying key performance indicators: E.g cost, compliance and wellbeing. • Ensuring research and independent evaluation • Shared interest of all stakeholders in seeing the pilot be a success • Ensuring essential elements: Case management, shelter, welfare and legal support 47
Hinweis der Redaktion
- I will be giving a brief overview of the international trends and findings on alternatives to immigration detention from the work and research of the IDC over the past 4 years. We have been working on all continents on the issue of ATD, including working with a number of states on the technical implementation of ATD pilots and programs, and have undertaken international ATD research which we have available here today. Also last year we undertake global consultations with more than 180 groups from 56 countries on this topic, so I will speak from those findings. From all of this work we are currently developing an ATD implementation kit, which will be completed by early next year.
- Trends Since 2009, ATD has been increasingly on the international agenda and UNHCR ’s work in this area has been outstanding, and their collaboration with IDC has been very fruitful in this space since the first EXCOM meeting on this topic in 2010 and the Global Roundtable in 2011, and various regional events since then. There has been a large increase over this period in the implementation of alternatives to immigration detention at the national level internationally, in either legislative, policy or in some cases, ad hoc means. These events follow in a sense 2 parallel processes occurring globally. One is the growth in the use of immigration detention as a first resort internationally over the past 10-15 years by states as a migration management tool, and secondly a shift against this in a number of countries over the past 5 years where detention reform has occurred and there has been a move to target the use of detention as more of a last resort. Immigration detention remains far less regulated, reviewed and monitored than criminal or other forms of detention, and many countries have used a one-size fits all immigration detention model, where undocumented migrants are detained regardless of individual circumstances, age, protection needs or vulnerabilities. The impact of that has been felt significantly across all regions. There has been growing litigation on wrongful, unlawful, arbitrary and negligent detention, heightened risk of human rights abuses, increased criticism to states on the high financial and human cost of immigration detention, including the growing evidence and recognition of the impact of detention on mental health and on children. Two key trends here have been: Increasing litigation, cost, complaints, management concerns Increasing use and awareness of effective community models As a response, a number of countries have undertaken detention reform, including legislative and policy change to limit and put safeguards on the use of immigration detention, to introduce alternatives or to and to avoid or not detain certain vulnerable groups, such as children. Some of the most notable, included the reform announcement in the US and work on the risk assessment tool, we heard about earlier today. As we also heard Australia a has most recently expanded its ATDs, including a greater use of bridging visa releases and the Community Detention programs, including for children. The most significant change regionally has been in the EU. In 2010, only two-thirds of EU Member States provided for alternatives to detention in their national legislation. By the end of 2011 all countries has introduced ATDs into national legislation bar Cyprus and Malta. This development can be explained in two ways – the need to transpose the EU Return Directive into law, which requires ATDs to be used in the first instance and secondly increased discussion and desire to reduce unnecessary immigration detention. Similar to this transnational roundtable, UNHCR ran a similar Western European ATD roundtable in Brussels in December last year as part of that EU dialogue. We have been working closely with the Belgian government the past 4 years in promoting and expanding the dialogue in the EU on ATDs, following their significant reform in 2009 on the introduction of alternatives to immigration detention and the ending of the detention of children. We have also seen more broadly an increased focus on avoiding the detention of children following the Belgian decision, from countries from the UK, Finland, Poland through to Japan, and most notably that the new French President recently made a commitment to end the immigration detention of children and to expand the use of ATDs. There has without doubt been a growing shift towards detention as a last resort. From greater release mechanisms in North America and Australia and New Zealand, to new reporting and case management models in Europe, East Asian provisional release mechanisms, South Asian judicial releases, to the use of shelter models in the Middle East and Central America. Even in the harshest of immigration detention environments, such as Thailand and Malaysia in South East Asia, adhoc release of vulnerable groups such as refugees registered with UNHCR has been occurring, and in places like Tanzania and Kenya in East Africa where detention is often in local prisons, there has been greater access, identification and release of vulnerable groups from detention. Of course I am painting a glossy picture here, but it serves to illustrate the shift in many places from detention as a first resort, to detention as a last resort, in line with international human rights standards. (see Figure 1.4).
- Trends Since 2009, ATD has been increasingly on the international agenda and UNHCR ’s work in this area has been outstanding, and their collaboration with IDC has been very fruitful in this space since the first EXCOM meeting on this topic in 2010 and the Global Roundtable in 2011, and various regional events since then. There has been a large increase over this period in the implementation of alternatives to immigration detention at the national level internationally, in either legislative, policy or in some cases, ad hoc means. These events follow in a sense 2 parallel processes occurring globally. One is the growth in the use of immigration detention as a first resort internationally over the past 10-15 years by states as a migration management tool, and secondly a shift against this in a number of countries over the past 5 years where detention reform has occurred and there has been a move to target the use of detention as more of a last resort. Immigration detention remains far less regulated, reviewed and monitored than criminal or other forms of detention, and many countries have used a one-size fits all immigration detention model, where undocumented migrants are detained regardless of individual circumstances, age, protection needs or vulnerabilities. The impact of that has been felt significantly across all regions. There has been growing litigation on wrongful, unlawful, arbitrary and negligent detention, heightened risk of human rights abuses, increased criticism to states on the high financial and human cost of immigration detention, including the growing evidence and recognition of the impact of detention on mental health and on children. Two key trends here have been: Increasing litigation, cost, complaints, management concerns Increasing use and awareness of effective community models As a response, a number of countries have undertaken detention reform, including legislative and policy change to limit and put safeguards on the use of immigration detention, to introduce alternatives or to and to avoid or not detain certain vulnerable groups, such as children. Some of the most notable, included the reform announcement in the US and work on the risk assessment tool, we heard about earlier today. As we also heard Australia a has most recently expanded its ATDs, including a greater use of bridging visa releases and the Community Detention programs, including for children. The most significant change regionally has been in the EU. In 2010, only two-thirds of EU Member States provided for alternatives to detention in their national legislation. By the end of 2011 all countries has introduced ATDs into national legislation bar Cyprus and Malta. This development can be explained in two ways – the need to transpose the EU Return Directive into law, which requires ATDs to be used in the first instance and secondly increased discussion and desire to reduce unnecessary immigration detention. Similar to this transnational roundtable, UNHCR ran a similar Western European ATD roundtable in Brussels in December last year as part of that EU dialogue. We have been working closely with the Belgian government the past 4 years in promoting and expanding the dialogue in the EU on ATDs, following their significant reform in 2009 on the introduction of alternatives to immigration detention and the ending of the detention of children. We have also seen more broadly an increased focus on avoiding the detention of children following the Belgian decision, from countries from the UK, Finland, Poland through to Japan, and most notably that the new French President recently made a commitment to end the immigration detention of children and to expand the use of ATDs. There has without doubt been a growing shift towards detention as a last resort. From greater release mechanisms in North America and Australia and New Zealand, to new reporting and case management models in Europe, East Asian provisional release mechanisms, South Asian judicial releases, to the use of shelter models in the Middle East and Central America. Even in the harshest of immigration detention environments, such as Thailand and Malaysia in South East Asia, adhoc release of vulnerable groups such as refugees registered with UNHCR has been occurring, and in places like Tanzania and Kenya in East Africa where detention is often in local prisons, there has been greater access, identification and release of vulnerable groups from detention. Of course I am painting a glossy picture here, but it serves to illustrate the shift in many places from detention as a first resort, to detention as a last resort, in line with international human rights standards. (see Figure 1.4).
- Trends Since 2009, ATD has been increasingly on the international agenda and UNHCR ’s work in this area has been outstanding, and their collaboration with IDC has been very fruitful in this space since the first EXCOM meeting on this topic in 2010 and the Global Roundtable in 2011, and various regional events since then. There has been a large increase over this period in the implementation of alternatives to immigration detention at the national level internationally, in either legislative, policy or in some cases, ad hoc means. These events follow in a sense 2 parallel processes occurring globally. One is the growth in the use of immigration detention as a first resort internationally over the past 10-15 years by states as a migration management tool, and secondly a shift against this in a number of countries over the past 5 years where detention reform has occurred and there has been a move to target the use of detention as more of a last resort. Immigration detention remains far less regulated, reviewed and monitored than criminal or other forms of detention, and many countries have used a one-size fits all immigration detention model, where undocumented migrants are detained regardless of individual circumstances, age, protection needs or vulnerabilities. The impact of that has been felt significantly across all regions. There has been growing litigation on wrongful, unlawful, arbitrary and negligent detention, heightened risk of human rights abuses, increased criticism to states on the high financial and human cost of immigration detention, including the growing evidence and recognition of the impact of detention on mental health and on children. Two key trends here have been: Increasing litigation, cost, complaints, management concerns Increasing use and awareness of effective community models As a response, a number of countries have undertaken detention reform, including legislative and policy change to limit and put safeguards on the use of immigration detention, to introduce alternatives or to and to avoid or not detain certain vulnerable groups, such as children. Some of the most notable, included the reform announcement in the US and work on the risk assessment tool, we heard about earlier today. As we also heard Australia a has most recently expanded its ATDs, including a greater use of bridging visa releases and the Community Detention programs, including for children. The most significant change regionally has been in the EU. In 2010, only two-thirds of EU Member States provided for alternatives to detention in their national legislation. By the end of 2011 all countries has introduced ATDs into national legislation bar Cyprus and Malta. This development can be explained in two ways – the need to transpose the EU Return Directive into law, which requires ATDs to be used in the first instance and secondly increased discussion and desire to reduce unnecessary immigration detention. Similar to this transnational roundtable, UNHCR ran a similar Western European ATD roundtable in Brussels in December last year as part of that EU dialogue. We have been working closely with the Belgian government the past 4 years in promoting and expanding the dialogue in the EU on ATDs, following their significant reform in 2009 on the introduction of alternatives to immigration detention and the ending of the detention of children. We have also seen more broadly an increased focus on avoiding the detention of children following the Belgian decision, from countries from the UK, Finland, Poland through to Japan, and most notably that the new French President recently made a commitment to end the immigration detention of children and to expand the use of ATDs. There has without doubt been a growing shift towards detention as a last resort. From greater release mechanisms in North America and Australia and New Zealand, to new reporting and case management models in Europe, East Asian provisional release mechanisms, South Asian judicial releases, to the use of shelter models in the Middle East and Central America. Even in the harshest of immigration detention environments, such as Thailand and Malaysia in South East Asia, adhoc release of vulnerable groups such as refugees registered with UNHCR has been occurring, and in places like Tanzania and Kenya in East Africa where detention is often in local prisons, there has been greater access, identification and release of vulnerable groups from detention. Of course I am painting a glossy picture here, but it serves to illustrate the shift in many places from detention as a first resort, to detention as a last resort, in line with international human rights standards. (see Figure 1.4).
- Trends Since 2009, ATD has been increasingly on the international agenda and UNHCR ’s work in this area has been outstanding, and their collaboration with IDC has been very fruitful in this space since the first EXCOM meeting on this topic in 2010 and the Global Roundtable in 2011, and various regional events since then. There has been a large increase over this period in the implementation of alternatives to immigration detention at the national level internationally, in either legislative, policy or in some cases, ad hoc means. These events follow in a sense 2 parallel processes occurring globally. One is the growth in the use of immigration detention as a first resort internationally over the past 10-15 years by states as a migration management tool, and secondly a shift against this in a number of countries over the past 5 years where detention reform has occurred and there has been a move to target the use of detention as more of a last resort. Immigration detention remains far less regulated, reviewed and monitored than criminal or other forms of detention, and many countries have used a one-size fits all immigration detention model, where undocumented migrants are detained regardless of individual circumstances, age, protection needs or vulnerabilities. The impact of that has been felt significantly across all regions. There has been growing litigation on wrongful, unlawful, arbitrary and negligent detention, heightened risk of human rights abuses, increased criticism to states on the high financial and human cost of immigration detention, including the growing evidence and recognition of the impact of detention on mental health and on children. Two key trends here have been: Increasing litigation, cost, complaints, management concerns Increasing use and awareness of effective community models As a response, a number of countries have undertaken detention reform, including legislative and policy change to limit and put safeguards on the use of immigration detention, to introduce alternatives or to and to avoid or not detain certain vulnerable groups, such as children. Some of the most notable, included the reform announcement in the US and work on the risk assessment tool, we heard about earlier today. As we also heard Australia a has most recently expanded its ATDs, including a greater use of bridging visa releases and the Community Detention programs, including for children. The most significant change regionally has been in the EU. In 2010, only two-thirds of EU Member States provided for alternatives to detention in their national legislation. By the end of 2011 all countries has introduced ATDs into national legislation bar Cyprus and Malta. This development can be explained in two ways – the need to transpose the EU Return Directive into law, which requires ATDs to be used in the first instance and secondly increased discussion and desire to reduce unnecessary immigration detention. Similar to this transnational roundtable, UNHCR ran a similar Western European ATD roundtable in Brussels in December last year as part of that EU dialogue. We have been working closely with the Belgian government the past 4 years in promoting and expanding the dialogue in the EU on ATDs, following their significant reform in 2009 on the introduction of alternatives to immigration detention and the ending of the detention of children. We have also seen more broadly an increased focus on avoiding the detention of children following the Belgian decision, from countries from the UK, Finland, Poland through to Japan, and most notably that the new French President recently made a commitment to end the immigration detention of children and to expand the use of ATDs. There has without doubt been a growing shift towards detention as a last resort. From greater release mechanisms in North America and Australia and New Zealand, to new reporting and case management models in Europe, East Asian provisional release mechanisms, South Asian judicial releases, to the use of shelter models in the Middle East and Central America. Even in the harshest of immigration detention environments, such as Thailand and Malaysia in South East Asia, adhoc release of vulnerable groups such as refugees registered with UNHCR has been occurring, and in places like Tanzania and Kenya in East Africa where detention is often in local prisons, there has been greater access, identification and release of vulnerable groups from detention. Of course I am painting a glossy picture here, but it serves to illustrate the shift in many places from detention as a first resort, to detention as a last resort, in line with international human rights standards. (see Figure 1.4).
- Trends Since 2009, ATD has been increasingly on the international agenda and UNHCR ’s work in this area has been outstanding, and their collaboration with IDC has been very fruitful in this space since the first EXCOM meeting on this topic in 2010 and the Global Roundtable in 2011, and various regional events since then. There has been a large increase over this period in the implementation of alternatives to immigration detention at the national level internationally, in either legislative, policy or in some cases, ad hoc means. These events follow in a sense 2 parallel processes occurring globally. One is the growth in the use of immigration detention as a first resort internationally over the past 10-15 years by states as a migration management tool, and secondly a shift against this in a number of countries over the past 5 years where detention reform has occurred and there has been a move to target the use of detention as more of a last resort. Immigration detention remains far less regulated, reviewed and monitored than criminal or other forms of detention, and many countries have used a one-size fits all immigration detention model, where undocumented migrants are detained regardless of individual circumstances, age, protection needs or vulnerabilities. The impact of that has been felt significantly across all regions. There has been growing litigation on wrongful, unlawful, arbitrary and negligent detention, heightened risk of human rights abuses, increased criticism to states on the high financial and human cost of immigration detention, including the growing evidence and recognition of the impact of detention on mental health and on children. Two key trends here have been: Increasing litigation, cost, complaints, management concerns Increasing use and awareness of effective community models As a response, a number of countries have undertaken detention reform, including legislative and policy change to limit and put safeguards on the use of immigration detention, to introduce alternatives or to and to avoid or not detain certain vulnerable groups, such as children. Some of the most notable, included the reform announcement in the US and work on the risk assessment tool, we heard about earlier today. As we also heard Australia a has most recently expanded its ATDs, including a greater use of bridging visa releases and the Community Detention programs, including for children. The most significant change regionally has been in the EU. In 2010, only two-thirds of EU Member States provided for alternatives to detention in their national legislation. By the end of 2011 all countries has introduced ATDs into national legislation bar Cyprus and Malta. This development can be explained in two ways – the need to transpose the EU Return Directive into law, which requires ATDs to be used in the first instance and secondly increased discussion and desire to reduce unnecessary immigration detention. Similar to this transnational roundtable, UNHCR ran a similar Western European ATD roundtable in Brussels in December last year as part of that EU dialogue. We have been working closely with the Belgian government the past 4 years in promoting and expanding the dialogue in the EU on ATDs, following their significant reform in 2009 on the introduction of alternatives to immigration detention and the ending of the detention of children. We have also seen more broadly an increased focus on avoiding the detention of children following the Belgian decision, from countries from the UK, Finland, Poland through to Japan, and most notably that the new French President recently made a commitment to end the immigration detention of children and to expand the use of ATDs. There has without doubt been a growing shift towards detention as a last resort. From greater release mechanisms in North America and Australia and New Zealand, to new reporting and case management models in Europe, East Asian provisional release mechanisms, South Asian judicial releases, to the use of shelter models in the Middle East and Central America. Even in the harshest of immigration detention environments, such as Thailand and Malaysia in South East Asia, adhoc release of vulnerable groups such as refugees registered with UNHCR has been occurring, and in places like Tanzania and Kenya in East Africa where detention is often in local prisons, there has been greater access, identification and release of vulnerable groups from detention. Of course I am painting a glossy picture here, but it serves to illustrate the shift in many places from detention as a first resort, to detention as a last resort, in line with international human rights standards. (see Figure 1.4).
- International research over 2 years on all regions Growth in the use of immigration detention Increasing litigation, cost, complaints, management concerns Increasing use and awareness of effective community models Governments increasingly using detention as a migration management tool Detention in one region is affecting another Government motivation: Manage irregular migration; Response to public opinion; Deterrence. Governments often treating all irregular, undocumented migrants the same, detaining and deporting without taking into account individual vulnerabilities, such as age, gender, protection or health considerations The most vulnerable are affected: Refugees, women, elderly, sick, disabled, victims of torture and trafficking and children, particularly unaccompanied minors.
- Findings In looking at these trends through our research with La Trobe University, we identified a number of interesting findings: 3 main types of ATDs Release provisions Community models Conditional release So what do these non-custodial measures look like in practice? 1 Release provisions – the way governments, authorities or courts release or don ’ t detain someone: Procedural safeguards (court order, time limits) – we found South Asia to have the strongest use of court ordered release on judicial review, Pakista, Nepal and Bangladesh in particular. Timelimits, Sweden for example has limits on the use of detention and must release someone after that period. 2 weeks, 2 months, 2 months, extended. Administrative and Discretionary release provisions – Japan provisonal release, Australia for example ministerial Registration and documentation- Examples- Malaysia, Pakistan- release with documentation and registration, other countries like South Korea can issue provisional visas Vulnerable group release- Vulnerable groups: No automatic detention of women and children , Release of cases with imminent durable solution,i.e resettlement.. Humanitarian release of vulnerable groups (children, pregnant women, victims, ill etc), trafficked persons Philipines- asylum seekers and children are not detained, or if identified in detention are released. Own recognizance- Hong Kong- own recofngiznace, Give HK example- people released to case workers, who assess, recognizance paper, they must report but have freedom of movement, and live in Shelter. Guarantors – In Senegal and Thailand. Regularization – such as time in the country, appeals to the minister, or marriage Adhoc - sometimes government just dump people when they don ’ t know what to do with them. Which can be detrimental to people on medication or vulnerable groups with no referral to community supports. It can also hinder the ongoing contact with authories
- 2. Community models: Open reception centre Ethnic community Shelters Family/community group/faith based organisation/NGO Case management programs Most of Europe has developed a strong culture of open centres, which may be a cluster of flats, or a purpose built centre, which often are called reception centres, and which allow for a range of services to be provided on site where people may come and go freely, but often must meet their caseworker regularly. Sometimes this is communal living, dormitory style and mess hall kitchens for example. In other places it is independent living similar to self-contained flats with kitchen. The standards of these vary significantly throughout Europe, but a range of minimum standards for reception of asylum seekers exists which governments should use. In Belgium for example asylum seekers by law have a right to reception support, which includes housing, health and welfare assistance. This photo is of a family room in the alternative model in Belgium. If you look at countries like Australia, US, UK and also South Africa, they have tended to not use the cluster housing models of Europe, but often individuals are dispersed in a range of community settings. Some may be in community or religious group housing, some may be in NGO run shelters and others in private rental properties. Other will live with friends and family. Housing models are often linked to the level of welfare or entitlements provided by the state. In Sweden for example where the state provides housing and welfare assistance individuals do not have the right to work. In Australia asylum seekers may have the right to work for some of their application in order to self-sustain themselves. Which may means working and paying rent. There is also a welfare program called the Asylum Seeker Assistance Scheme for those unable to work or with a range of vulnerabilities. Spain has has both, an initial welfare assistance and then work rights after 6 months. Some countries have specialist housing models for vulnerable groups, particularly for trafficked persons, people with physical or mental illness, disabilities, single mothers, and particularly unaccompanied minors. Sweden is well known for their ’ group home ’ models for vulnerable groups, where UAMs or single mothers would live together in a shelter and have access to case workers for support. When I was in South Africa recently I visited shelters used as alternatives to detention, these were church halls turned into dormitory living. We saw something similar in Hong Kong recently, which we will hear about shortly. Open reception centres, most of Europe, not Australia, UK or USA – most ideal model, for e.g Spain. In Australia private rental, depends on if you have work rights, or if you are vulnerable you may get government assistance. In , SA, Hong Kong, Lebanon, and Thailland an NGO shelter, in Mexico church shelters. Explain Lebanon model- church NGO inside the centre, doing assessment and case work and vulnerable groups released directly into their shelters. USA they have shelters for UAMs, and in Malaysia for trafficked persons, so otherwise you are on your own, usually staying with family or their ethnic community They may or may not include conditions. These conditions include: These release models may or may not have requirements on them.
- I won ’t go into these in detail as they are in the handbook, but essentially we found 14 different mechanisms being used around the world: We ’ve grouped into 5 main types of conditional release: • Individual undertakings – requirements on an individual to comply and cooperate • Monitoring – More passive mechanisms such as reporting, registration or nominated address • Supervision – More active mechanisms such as interaction and evaluation of individual cases, could include a guarantor for the individual. • Negative consequences for non-compliance – such as bail, bond and surety arrangements – • Intensive case resolution – Involves coordination and case management and return programs
- 1. Minimum reception standards: Right to an income Right to health care Right to education Right to legal advice Right to spiritual/social support 2. Responsibility: Individual- Work rights and insurance Government support Government/community support Community support types of models on the ground Looks different and run differently around the world. Ownership of a case management model looks different: Government – full responsibility Partnership – balance between NGO and government: can mean accountability and transperancy NGO – piolt projects, generating evidence in support of model, but also funding and sustainability issues Whilst ideally it is carried out by qualified social workers or such, the model can be adapted for used by others. I have just returned from Darfur where we were using a case management model in work with children and families affected by conflict – IDPs, refugees, reintegration of child soldiers, UAMS etc. We did not have qualified social workers available to do this work, however developed a basic practical training for key workers and community members and then provided support in their work, building capacity and ensuring sustainability. Case Study on Australia Detention in Australia, previously all undocumented migrants and asylum seekers, including children Strategy- Campaign on impact of detention on children and other groups NGO identifying most vulnerable and complex cases and offered community-accommodation Government agreed to a pilot for a small group of detainees using a risk assessment model. 3 years later rolled into a national program. Aim – Assistance through the immigration pathway so individuals are better prepared and supported if they receive a visa or are required to depart the country. Outcomes- More humane; improved health and welfare; positive govt/NGO collaboration; low absconding; high levels of compliance on returns; and cheaper. Australia- Learnings: Leading NGOs came together annually to agree strategic priorities and actions. There was not always consensus, but shared concerns and priorities. Building relationships within the sector was crucial.
- With this research completed, the next step for the IDC is developing an international, regional and national advocacy strategy with our members, to target government and the public. Following the global roundtable, we will be developing similar regional and national roundtables, together with our members, UNHCR and OHCHR, and meeting and training government and civil society on the findings, and we are very keen to work with groups on this issue in their countries. We hope the discussion today will help identify priorities and opportunities for collaborative work on advocacy, capacity building and public messaging. To get involved or find out more you can visit our website.
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Plus funded! Give HK example- people released to case workers, who assess, recognizance paper, they must report but have freedom of movement, and live in Shelter. In practice governments usually put various requirements on living in the community, usually release to: • Nominated address or accommodation • Bail, bond, surety or guarantor • Reporting requirements • Return preparation/counselling program • Case management
- Plus funded! Give HK example- people released to case workers, who assess, recognizance paper, they must report but have freedom of movement, and live in Shelter. In practice governments usually put various requirements on living in the community, usually release to: • Nominated address or accommodation • Bail, bond, surety or guarantor • Reporting requirements • Return preparation/counselling program • Case management
- 2 key findings In summarizing all of findings, there we 2 key areas we found significant The range of mechanisms which prevent unnecessary detention – so how states are preventing detention where possible. And secondly, the strategies being used for effective and humane case management and case resolution in the community
- We also found a range of preventative mechanisms in place, particularly processes governments are using to determine whether no detention, conditional release or detention as a last resort, are appropriate and necessary in the individual case. Which we call steps 2 and 3, assessing the individual and the community context. A key finding of the research was that although not traditionally viewed as an alternative to detention, the use of screening and assessment by governments of new arrivals and individuals at risk of or subject to detention, is a key mechanism to both avoid unnecessary, arbitrary or wrongful detention, and also to identify and assess levels of risk and vulnerability. We observed that while some states treat all irregular migrants as being of a similar risk to the community or assume a risk of absconding and non-compliance, a number of states are successfully using screening and assessment processes that enable them to understand the population and to make informed decisions on whether to detain or not, and under what circumstances and the most appropriate way to manage and support the individual as they seek to resolve their migration status. Examples- Hong Kong and the United States have risk assessments Also, in Panama children by law cannot be detained Philipines don ’t detain asylum seekers or children. If a child or family arrives at the border undocumented they are handed immediately to the family services, and no longer under the jurisdiction of the immigration for detention purposes. Note: These are steps we identified in a range of countries used to avoid immigration detention, and may not be applicable in all contexts, for example some countries have automatic community open reception of asylum seekers. Every country context is different but These are for countries which detain undocumented individuals. States obligations, but role of lawyers in identifying, screening, legal aid and drawing attention to states the legalities, or illegalities of a person ’s detention- as often the state has knows nothing about the individual except that they don’t have a visa- so they could be a refugee, or trafficked person, and the state treats them as standard removal case. Or they could have vulnerabilities or complexitied impeding their removal, ie national children. And the state does know, or doesn’t care unless lawyers intervene. Eg South Africa, draw attention to the law, but Lebanon works more informally screening, cases, social worker/lawyer and nurse in the detention centre, and recommending release into their shelters. Detention not needed, doesn ’t work, damages… key message, there are alternatives Don ’t assume everyone is a risk, or treat them all as illegals etc. Step 3 only a last resort, usually screening, IHS, step 2 enough. Impact on these groups- mental health, and we heard yesterday of the psychosis and mental health impact of prison experience, which is replicated in the immigration detention system- with one marked difference. In most countries a prisoner is charged, given a hearing, given a sentence, and know they may or may not be released back in their homecountry. In most immigration detention centres, refugees, asylum seekers and migrants are often detained without any opportunity to go to a judge for reprieve, don ’t have a time sentence, don’t know what will happen to them, when, will they be sent back to danger, and the mental health implications are serious. The one size fits all approach had massive implications in Australia- 4,000 children detained from 2000-2005, and also, we are seeing nationals being caught up in these policies and practices, in Australia 250 Australians have been wrongfully detained; in a number cases they were wrongfully removed- in the US there are possible thousands of cases – and what we see are people detained no doubt with a discriminatory racial profling practices, which are affecting the most vulnerable residents, often people with mental health and intellectual disability, unable to articulate who they are. This has lead to significant litigation in a number of countries, in Australia 2 extreme cases, which unfortunately the government settled before going to court, but the US is particutlarly nervous about massive litigation. I was in Malaysia working this last week, working with a group of lawyers who discovered a local Tamil women who never, and the possibility of litigation which is difficult in Malaysia, but being explored. Probably the most interesting cases of litigation on immigration detention has been in HK. Litigation has found detention unlawful in many instances with compensation. Release on own recognizance. Time in detention has reduced, used to be 1-2 years. People released now within 10 days in general unless identity issues. Minors are released immediately if letter is written on their own recognizance, and they get government funded in-kind support- not money The fact that there was no policy became a basis for the litigation of wrongful detention. The is a lack of knowldege and international research on litigation successfully used in immigration detention cases, so I think it is an area we could explore further, but we are doing research on broader good practice and alternatives, which I will talk about now This lead to changes in Australian legislation in 2005 to not detain children, and began a massive shift in policy that continues today- namely that detention is increasingly used as a last resort, E.g. Veerawit model.. Touching on each- refugee freedom fund- just dumping people doesn ’t work, backfires
- Relevant in assessing risk of absconding: Stage in the migration process Intended destination Community ties Belief in the process Character
- Relevant in assessing risk of absconding: Stage in the migration process Intended destination Community ties Belief in the process Character
- Country examples- US and Swedish risk assessments, identity release in canada, germany, finland, health checks sweden Or Just give Swedish example for all these
- without legal or policy basis
- In step 3, we found a range of mechanisms which effectively support and manage individuals in the community, in particular documentation, legal and social services, and case management models being used. Malaysia and Indonesia have not signed the refugee convention, but in the past 2 years have started to recognise the UNHCR documents and generally not detained those with UNHCR registration. Legal advice and case management, or individual ways of working with people normally detained are crucial elements, which Lucy will talk about briefly, e.g Hong Kong, where people are given screened, referred to an NGO for welfare, housing and to a legal provider. They don ’ t give people money, but give them food and housing. More than 90% of people cooperate and comply with requirements put on them.
- Case management Probably the most innovative and interesting findin in our research was the increasing use and effectiveness of case management as a Case management is a strategy for supporting and managing individuals whilst their status is being resolved, with a focus on informed decision-making, timely and fair status resolution, exploring all options and improved coping mechanisms and well-being on the part of individuals. Focus on welfare, psychosocial needs and all immigration outcomes Preparing, supporting and empowering individuals throughout their immigration process Improves cooperation and compliance with immigration requirements It is a practical framework to ensure coordinated response to vulnerable people in detention and the community. Case management improves compliance with immigration requirements Our research found that individuals are better able to comply and cooperate in the community if they: Are able to meet their basic needs Have been through a fair and informed process Are supported to achieve sustainable long-term solutions while awaiting a decision on their case Case management seemed to be the crucial factor in ensuring these are met. Mention Sweden, Australia, NZ, Europe, Belgium, us now looking at developing this model- rather than guards and officers, case managers that recognise the complexities of psychosocial issues.
- I won ’ t go into these in detail as they are in the handbook, but essentially: We ’ ve grouped into 5 main types of conditional release: • Individual undertakings – requirements on an individual to comply and cooperate • Monitoring – More passive mechanisms such as reporting, registration or nominated address • Supervision – More active mechanisms such as interaction and evaluation of individual cases • Intensive case resolution – Involves coordination and case management and return programs • Negative consequences for non-compliance – such as bail, bond and surety arrangements. – Korea and Japan Note; Overused, and these are really what people think of as alternatives, ie bond/bail etc. Not bracelts. The IDC research only talks about freedom of movement, we look at restrictive models in step 5- however there are greys, with semi-open centres in Spain, and a model in Australia, called APD, explain- This led to full release and community placement – so if we as NGOs are sophistacted in our strategy, and incremental, restrictive release models can more to something else- I will talk about this a bit later in the advocac se
- Return preparation programs Examples include: Return preparation counseling Legal advice on options to remain or return lawfully Health and welfare assistance Case management assistance Travel and repatriation assistance (AVR) • Identify barriers to departure • Stabilize health and assist individuals cope and have trust in the process • Assist individuals explore long-term sustainable solutions, such as: 1.Exploring legal options to remain 2. Reassessment of new case information 3. Exploring third country options and relocation to other areas in country of origin 4. Exploring repatriation support needs
- Benefits of alternatives to immigration detention - Reduces the financial and human cost of immigration detention and maximizes management and case resolution in the community. And the benefits of these included lower costs, increased compliance and improved wellbeing of individuals, reducing the financial and human cost of immigration detention and maximizes management and case resolution in the community. There were a range of benefits. • Maintain high rates of compliance • Cost less than detention • Reduce wrongful detention and litigation • Reduce overcrowding and long-term detention • Protect and fulfill human rights • Increase independent departure rates for refused cases • Improve integration outcomes for approved cases • Improve health and welfare Alternatives cost less than detention 80% average saving, averaging $100 a day • Alternatives maintain high rates of compliance and appearance 90% average compliance rates • Alternatives increase independent departure and voluntary return rates for refused cases 65% average – up to 82% reported IN Africa we found 10 different mechanisms used to get people out of detention. 11 if you include bribes
- A cost saving of 93% was noted in Canada and 69% in Australia on alternatives to detention compared to detention costs. In addition independent returns in the EU and Australia save approximately 70% compared to escorted removals. A recent study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate. Examples in Canada, Australia and the US of both refused asylum seekers and irregular migrants had return rates of between 60% and 69%, while Sweden reported an 82% rate of return from the community among refused asylum seekers. Similarities in Canada, Australia and Vera Note 65% vol return is very good for the population identified---- complex and long-term resident cases. Also governments do not achieve 100% removal rates from detention, its not true- there are always cases who cannot be removed, or wrongfully detained and released…. UK and Australia between 1-2 thirds are removed.
- For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate. A cost saving of 93% was noted in Canada and 69% in Australia on alternatives to detention compared to detention costs. In addition independent returns in the EU and Australia save approximately 70% compared to escorted removals. A recent study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate. Examples in Canada, Australia and the US of both refused asylum seekers and irregular migrants had return rates of between 60% and 69%, while Sweden reported an 82% rate of return from the community among refused asylum seekers. Similarities in Canada, Australia and Vera Note 65% vol return is very good for the population identified---- complex and long-term resident cases. Also governments do not achieve 100% removal rates from detention, its not true- there are always cases who cannot be removed, or wrongfully detained and released…. UK and Australia between 1-2 thirds are removed.
- A cost saving of 93% was noted in Canada and 69% in Australia on alternatives to detention compared to detention costs. In addition independent returns in the EU and Australia save approximately 70% compared to escorted removals. A recent study collating evidence from 13 programs found compliance rates ranged between 80% and 99.9%. For instance, Hong Kong achieves a 97% compliance rate with asylum seekers or torture claimants in the community, and in Belgium, a pilot working with families facing removal had an 82% compliance rate. Examples in Canada, Australia and the US of both refused asylum seekers and irregular migrants had return rates of between 60% and 69%, while Sweden reported an 82% rate of return from the community among refused asylum seekers. Similarities in Canada, Australia and Vera Note 65% vol return is very good for the population identified---- complex and long-term resident cases. Also governments do not achieve 100% removal rates from detention, its not true- there are always cases who cannot be removed, or wrongfully detained and released…. UK and Australia between 1-2 thirds are removed.
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Examples of what some tactics our members have used successful around the work. We will focus on developing a pilot that NGOs can help develop, and aim to get the government to eventually fund as a standard program
- Give HK example- people released to case workers, who assess, recognizance paper, they must report but have freedom of movement, and live in Shelter. In practice governments usually put various requirements on living in the community, usually release to: • Nominated address or accommodation • Bail, bond, surety or guarantor • Reporting requirements • Return preparation/counselling program • Case management