Most countries have laws providing for the authorities to hold in custody people who are accused of illegal entry into the country or of violating the terms on which they have been permitted to remain. This type of custody is referred to as detention. In this guide we explain the grounds on which it may ben exercised and the steps that you may be able to take to challenge it.
Detention of asylum-seekers should normally be avoided. It should be a measure of last resort. In principle, children should never be detained.
Seeking asylum is not an unlawful act and the detention of asylum-seekers and refugees who have entered a country without authorisation solely due to their unauthorised entry is not in line with international law.
International law provides substantive safeguards against unlawful and arbitrary detention UNHCR’s Detention Guidelines state that detention is an exceptional measure and can only be justified for a legitimate purpose. Furthermore, detention is only acceptable if it is necessary in each individual case, reasonable in all circumstances and proportionate to a legitimate purpose, and where less coercive or intrusive measures (alternatives to detention) are considered ineffective in the individual case. Any detention must be challengeable in a court of law.
The practice of detaining asylum seekers has become in some countries a routine, and is on the rise in others. Oftentimes, asylum seekers are detained in prisons and detention centres, in substandard conditions and treated as if they have committed a criminal offence.
The detention of asylum seekers represent a growing human rights challenge, despite detention only being permitted as a matter of international law where it is necessary, reasonable, and proportionate to be achieved, and then only after less coercive alternatives have been found not to be suitable in each individual case.
Example from the United Kingdom:
The UK relies on and utilities asylum detention more often than in other countries in the European Union. For example, in 2014 over 30,000 individuals entered immigration detention, almost 14,00 of whom were asylum seekers. The UK is also one of a number of countries without a maximum time limit on immigration detention.
However, there exists many good immigration practices such as independent monitoring mechanisms, visitor groups and impartial bodies providing free and independent legal advice. Mandatory administrative reviews are also available to all people subject to immigration detention and significant progress has been made towards ending detention of children
Under the UN Standard Minimum Rules for the Treatment of Prisoners, a detainee is entitled to clothing, bedding, food, personal hygiene, medical services, exercise, sport, and even book and religious workshops if necessary. More recently, the Parliamentary Assembly of the Council of Europe recognised various detainee needs which must be provided –
Vulnerable persons as defined by international, regional and national law, may be exempt from detention. Be aware that this is an individual assessment, so each case will turn on its own facts. Here, evidence is required to prove that you fall into this category. There will be lawyers or non-governmental organisations that you can contact to receive help with this process.
Also note that whilst international law provides a broad protection for vulnerable people, this may not translate to national practice and you may still be detained or deported from the country. Here, you may want to seek legal representation to pleas breaches of your human rights, such as unlawful and arbitrary detention. Again, you should contact local lawyers or non-governmental organisations working in this field to support you in this process.
Zambia has introduced a new ‘first contact’ program designed to help identify vulnerable migrants and asylum seekers. Further initiatives include initial interviews to identify what category the migrant falls under, and faith-based organisations within local communities can visit detention centres to provide advice to detainees.
All immigration detention centres have a duty to safeguard the welfare of children and unaccompanied minors.
Families with children should not be detained in immigration removal centres, and can only be detained for up to a week in secure pre-departure accommodation.
Unaccompanied children must be referred to a local authority and other arrangements must be made for their accommodation and care – they cannot be detained. Unaccompanied children can only be detained under very special circumstances, such as temporarily while accommodation is being arranged.
International law recognises that women in immigration detention will have particular vulnerabilities.
Women in detention are entitled to facilities required to meet their specific hygiene needs and those of their children.
Women who are pregnant or are currently nursing should only be detained in exceptional circumstances. If these apply, then special medical and other support should be provided. There is also a ban on punishment by solitary confinement or disciplinary segregation.
Persons with disabilities should be treated in line with human rights and without discrimination.
If you suffer from a mental disability, you should in principle not be detained and instead have access to alternatives to detention in the community.
If you have a physical disability, then your circumstances need to be reasonably accommodated. This includes access aids that you may need in your day-to-day life.
In some cases, the continued immigration detention for asylum-seekers with mental and physical disabilities may amount to torture and cruel, inhuman or degrading treatment or punishment. In that case, you are entitled to legal representation to challenge your detention.
If you are a victim of trafficking, you should not be held in immigration detention or other forms of custody.
You should not be detained, charged and prosecuted for the unlawful activities which are a direct consequence of your situation as a trafficked person. Instead, international law, which is incorporated in many countries’ national law, recommends measures permitting trafficked persons to remain within the State temporarily or permanently.
You are entitled to access to legal representation to challenge your detention, as well as social support and counselling if you are a victim of trafficking.
Please see section on deportation for a full defintition of torture.
In principle, victims of torture should not be detained in immigration removal centres.
On arrival to the immigration detention centre, you should be screened by qualified health professionals in private. You are also entitled to an interpreter if necessary. Physical and medical vulnerabilities should be identified, assessed and addressed during this examination
If you have been a victim of torture, notify the medical centre. There should be a protocol for handling instances where detainees disclose information about previous mistreatment, torture or trauma.
Stateless person are especially vulnerable to prolonged immigration detention.
Under international law, indefinite detention is unlawful, and therefore the inability to remove or deport you needs to be considered when deciding to detain you. You can challenge your detention on this basis and should seek legal representation.
Lesbian, Gay, Bisexual, Transgender and Intersex plus (LGBTI+) persons have a heightened risk of being subjected to physical, psychological and/or sexual violence or abuse in detention, both by staff and other detainees
If you are at risk of being subjected to harm, you should not be placed in solitary confinement or administrative segregation to ensure your safety. If your safety cannot be ensured in detention, then you should be released without conditions or referred to alternatives to detention
You are also entitled to access to appropriate medical care and counselling if appropriate.
If you are currently being detained, either in an immigration detention centre or a prison, you are entitled to a certain minimum living standard. Many prisons and immigration centres are overcrowded with poor sanitary facilities. Many people in detention are also subjected to prolonged periods of solitary confinement.
International law, such as Article 10 of the ICCPR, states that all persons within these centres should be treated with humanity and dignity. It further recognises that detention facilities are the most common places where serious violations of the absolute prohibition of torture and/or cruel and inhuman and degrading treatment occurs.You are entitled to legal representation to challenge your conditions of detention.
An important principle is that immigration detention centres should not bear similarities to prison like conditions. They should not be led by security forces, but instead officers who have been trained in human rights, cultural sensitivity, age and gender considerations, and respect vulnerable situations.
Within these detention centres, international law enshrines at least minimum human conditions of detention should be maintained, regardless of the economic difficulties of the state, status of the migrants and their needs, and these conditions should be the same even within privately run detention centres.
You are entitled to be treated with humanity and respect in detention. If you are experiencing overcrowding and poor quality of necessities and services, including food, clothing and medical care, your right to a minimum standards of living conditions may have reached the threshold for cruel, inhuman and degrading treatment, of which there is an absolute prohibition.
Furthermore, states have an obligation to occupy you during the day by providing various types of activities. Thus, being detained in your cell for 22 hours a day without meaningful activities to occupy your time does not comply with the minimum standards.
Solitary confinement is a form of imprisonment which aims to isolate people in closed cells for 22-24 hours a day, virtually free of human contact, for periods of time ranging from days to decades. Often, the conditions in these environments are not only isolating, but degrading and inhumane which can negatively impact inmates emotionally, physically, and mentally for the rest of their lives.
Solitary confinement may be authorised in certain circumstances, such as preventing evidence for being distorted and to ensure the detainees safety, and within certain strict limits.
The use of solitary confinement for prolonged periods has been heavily criticised by organisations such as the United Nations.
Solitary confinement may amount to torture, inhuman, or degrading treatment. The courts will look at the conditions, the duration of the measure, the objective pursued and the effect on the person concerned. Placing vulnerable persons in solitary confinement should only be done in exceptional circumstances.
Incommunicado detention refers to a situation where nobody, apart from the authorities have contact with the detainee, and is strictly forbidden.
African Commission on Human Rights, Liesbeth Zegveld and Messie Ephrem v. Eritrea, 2003
“Incommunicado detention is a gross human rights violation that can lead to other violations such as torture or ill-treatment or interrogation without due process safeguards. Of itself, prolonged incommunicado detention and/or solitary confinement could be held to be a form of cruel, inhuman or degrading punishment and treatment. The African Commission is of the view that all detentions must be subject to basic human rights standards. There should be no secret detentions and States must disclose the fact that someone is being detained as well as the place of detention (…)”
Before considering going to court, you should consider taking more accessible routes, such as raising complaints about your detention through relevant complaints procedures or contacting independent organisations that handles complaints.
In all places of detention there should be internal requests and complaints procedures that are easily accessible, as well as external procedures for making confidential requests and complaints. You should be informed of these procedures and understand how to use them. Your complaint or request should be impartially investigated and dealt with without undue delay.
If you are have been treated badly in detention, you should be able to report the issue to a police officer or through an independent complaints system.
Example from England and Wales: Prisoners can escalate their complaints to the Prisons and Probation Ombudsman (PPO), which is an independent organisation that deals with complaints. The PPO will then carry out an investigation into their treatment and may make recommendations.
If you are detained in an immigration detention centre, you are entitled to have access to a suitably qualified lawyer to advise and assist you in relation to both the detention itself as well as to relevant protection and/or immigration procedures. You should have been informed of you right to legal advice and assistance.
You must be given adequate time and facilities for legal consultation and communication. This must take place without delay or censorship and in full confidentiality.
You are also entitled to bring your lawyer to any interview with Government official or their agent and you should be given prior notice of all interviews, review, appeal hearings and decisions relating to detention, protection, immigration and removal processes and procedures.
NGOs working in this area may be able to support you in challenging your detention or conditions of detention through taking legal action via the courts. They may do this through referring your case to lawyers who can then take either action through civil or public law. In rare cases, NGOs may have ‘standing’ to bring a claim on your behalf.
Going to court is expensive, complex and takes a long time. Therefore, where appropriate, other methods such as complaints and ombudsman procedures should be sought first (as set out above).
Before deciding on what action to take, you will need to consider what procedure will provide you with the best result.
Generally, proceedings in administrative courts seek to challenge a decision by public officials or a public procedure or law.
Administrative proceedings often contain strict requirements on standing, time limits and you may need to apply for permission to bring a claim. These proceedings are therefore complex, and you will benefit from seeking legal representation.
Financial compensation is rarely available in the administrative courts. Instead, administrative courts will usually grant:
If you have been unlawfully detained or your conditions of detention breach your rights, you may wish to bring a claim for compensation in a civil court.
As with administrative procedure, you will have to comply with strict deadlines and consider complex legal issues. You should therefore seek legal representation.
In the case of detention, a civil court can:
Bringing proceedings in an administrative or civil court in detention can be very difficult due to the lack of resources and information available to you. Here, your best cause of action is to contact NGOs working in this area to ask for assistance or information. Alternatively, you may wish to contact other relevant institutions, such as the Ombudsman or prison inspectorates. They may not be able to provide direct support, but can give information on who to contact
Difficulty obtaining the relevant evidence;
It might be difficult to obtain the necessary evidence when challenging your detention in court. This is particularly relevant where are claiming that you are a victim of trafficking, torture or have a medical condition. You should seek legal advice on what evidence you will need to bring a challenge.