Written evidence submitted by the UNHCR – The UN Refugee Agency (IDD0018)

Introduction

UNHCR, the UN Refugee Agency, is a non-political, humanitarian organisation entrusted by the United Nations General Assembly with the responsibility for providing international protection to refugees, asylum seekers and stateless persons and together with governments, to seek permanent solutions to their plight.[1]

As part of its mandate, UNHCR has a direct interest in the situation of asylum-seekers, refugees and stateless persons in detention. Addressing practices not in conformity with international human rights in the detention of asylum-seekers and refugees is a priority for UNHCR, as reflected in its 5-year Global Strategy Beyond Detention.[2] The UK is a focus country participating in the Global Strategy under which UNHCR has worked constructively with the UK authorities.

We welcome the opportunity to contribute to the Home Affairs Select Committee’s Inquiry on Immigration Detention (Detention Inquiry).

UNHCR’s position on the detention of asylum-seekers, refugees and stateless persons

UNHCR’s position is that the detention of asylum-seekers, refugees and stateless persons should normally be avoided and only used as a measure of last resort. Detention can be justified only as far as it is determined to be necessary and proportionate for the pursuit of a legitimate purpose in each individual case. Appropriate screening and detention review mechanisms need to be in place. The detention of asylum-seekers, refugees and stateless persons should be regulated by law, carefully circumscribed, and subject to prompt and periodic review.

UNHCR Guidance relating to the Detention of Vulnerable Persons

UNHCR is well aware of the negative lasting effects that detention can have on individuals. It undermines human dignity and can cause unnecessary suffering, with serious consequences for the health and wellbeing of detainees. Detention can increase anxiety, fear and frustrations and can exacerbate past traumatic experiences. While every person who is deprived of their liberty is considered at risk, some detainees are particularly vulnerable and specific measures have to be undertaken by authorities to address their individual needs.

Detention of children is particularly serious due to the devastating effect it may have on their physical, emotional and psychological development, even if they are not separated from their families. Children should, in principle, never be detained as it is never in the best interest of a child to do so, regardless of their legal/migratory status or that of their parents.[3] The UNHCR’s response to the APPG on Modern Slavery and Human Trafficking inquiry[4] highlighted the risk of violence and abuse faced by unaccompanied and separated children in detention.

To help address these concerns UNHCR has prepared guidance to States on the above-mentioned standards relating to decisions to detain, as well as on the conditions of detention to be met, in cases where detention is necessary and unavoidable. UNHCR’s Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, 2012[5] (UNHCR Detention Guidelines) may be of particular interest to the Detention Inquiry. The UNHCR Detention Guidelines provide guidance to States on ensuring that conditions of detention are humane and dignified.[6] Further, they provide specific guidance on the special circumstances and needs of particular asylum-seekers, which must be taken into consideration.[7] Categories of vulnerable individuals addressed in the guidance include victims of trauma and torture, children, women, victims or potential victims of trafficking, asylum-seekers with disabilities, lesbian, gay, bisexual, transgender or intersex asylum-seekers. UNHCR, in collaboration with the Association for the Prevention of Torture and the International Detention Coalition, has also issued the Monitoring Immigration Detention: Practical Manual.[8] The Manual provides further guidance on the international detention standards relating to persons in situations of vulnerability or risk, including the categories outlined above, and should serve as a reference for the Detention Inquiry.[9] UNHCR also has an extensive repository[10] of materials on detention which are recommended for your consideration.

Further, as outlined in our written evidence to the Parliamentary Joint Committee for the Inquiry Into the use of Immigration Detention, UNHCR recommends explicit exemptions to detention for children, nursing mothers and pregnant women, survivors of torture or sexual violence, and traumatised individuals, in view of their special needs.[11]

The initial process of detention, including the decision to detain and screening for vulnerability

Together with the International Detention Coalition, UNHCR has developed a Vulnerability Screening Tool[12] (VST) which is intended to help guide and inform decision-makers on the relevance of vulnerability factors to detention decisions, in the context of asylum and migration procedures.

Refugees, asylum-seekers, trafficked persons, stateless persons, irregular migrants and other non-nationals without legal status often experience situations of vulnerability – they are often exposed to heightened risks of harm and require special care, support and protection. The VST is a tool developed for use by national authorities to identify situations of vulnerability so as to inform decisions around the most appropriate placement and support options in individual cases.

The VST aims to encourage early intervention in situations of vulnerability. This should ensure the effective care of individuals in need, and strategic partnerships with civil society organisations.

The current screening tools used by the government do identify vulnerabilities. However, they do not facilitate the identification of appropriate support services for vulnerable individuals or require the Home Office to signpost or refer individuals to professional services.

Whilst the VST is a generic screening tool based on a set of understandings and principles, the intention is that it can be adapted to suit local requirements to maximise its relevance to the national context. UNHCR recommends that the Home Office consider adapting and applying the procedures and principles found in the VST for use in the UK. This would result in a shift away from focusing more exclusively on whether or not an individual should be detained to identifying vulnerabilities and ensuring that they are suitable addressed. By extension, keeping in mind the negative impact of detention on individuals, it is expected that this would reduce the rate at which vulnerable individuals are detained.

Benefits for governments of vulnerability screening and assessment:

• Costs and risks of harm associated with detention are high, while reception and alternatives to detention provide cheaper options than detention, respectful of human dignity.[13] Considering placement options before resorting to detention helps mitigate unnecessary costs related to detention: wrongful detention, reputational risk, litigation and compensation costs are reduced.

• Individualised screening undertaken by properly trained staff helps to prevent, reduce and better manage risks of harm to that individual if detained. Repeat screening, especially for individuals in detention, is critical.

• Risks of harm are reduced when individuals have access to service providers, such as NGOs or independent agencies, with expertise to identify risks as well as to facilitate access to services (accommodation, medical and psychological assistance, education, legal assistance) for vulnerable individuals.

• When vulnerability is identified and addressed early through appropriate screening measures, individuals are better able to comply with asylum and migration system requirements. Efforts to ensure that the process is fair and timely can increase an individual’s cooperation. When people are assured of their safety, access to basic needs and assistance (accommodation, medical and psychological assistance, education, legal assistance), they are more likely to comply with the process.

• Vulnerability screening early in the asylum or migration process, as well as for protracted caseloads, helps to prioritise and achieve faster case resolution. Identifying and addressing vulnerability supports long-term integration, as well as voluntary return.

• Placement in the community with appropriate support helps ensure the individual’s availability as well as capacity to cooperate with asylum and migration procedures. Individuals are likely to remain engaged with community ties that address their vulnerability and build their resilience.

The treatment of vulnerable persons subject to immigration detention, particularly the effectiveness of the Rule 35 process and the Adults at Risk policy

In the last year, there have been positive developments towards addressing the recommendations of UNHCR, the Shaw Review and others, including the introduction of statutory safeguards to restrict the detention of pregnant women and provide for further judicial oversight of detention. Importantly, Schedule 10 of the 2016 Immigration Act was also recently enacted on 15 January 2018, though any effects of this are yet to be assessed.

It is critical that adequate procedures are in place to identify vulnerable individuals to ensure that they are not detained. The UK’s Adults at Risk policy was designed for this purpose and in response to the Shaw Review. However, there are concerns that rather than strengthening procedures to identify vulnerable individuals, the policy makes it more likely they will remain in detention as, among other things, it increases the burden of evidence on vulnerable people needed to secure their release. UNHCR has not seen evidence to suggest that the Adults at Risk policy has resulted in a reduction in the number of individuals detained. UNHCR would recommend that the Detention Inquiry seeks to gather current information on the impact of the Adults at Risk policy and whether or not it has contributed to reducing the number of vulnerable individuals detained.

Indefinite detention in the UK

The fundamental rights to liberty and security of person, as well as freedom of movement, apply to asylum-seekers, refugees and stateless people alike. And yet the UK detains strikingly high numbers of asylum-seekers and is one of only a handful of countries without a time limit on immigration detention.

This lack of a time limit on immigration detention leaves asylum-seekers at risk of being detained indefinitely and arbitrarily, with an even greater risk for people who are stateless or unremovable. In UNHCR’s view, the lack of a time limit for detention has a significant impact on the welfare of detainees, in terms of their mental and physical health. This has been shown through the testimonies given by former detainees, and confirmed by health professionals, when providing evidence before the Parliamentary Inquiry into the Use of Immigration Detention in the United Kingdom.[14]Owing to concerns of prolonged immigration detention, numerous entities have called on the UK to introduce a time limit, including the Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, which called for the introduction of a 28-day time limit,[15] and the Chief Inspector of Prisons.[16] More recently, in April 2017, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment called on the UK authorities to reconsider its policy of indefinite immigration detention.[17] UNHCR strongly supports these calls and recommends that a maximum period of immigration detention be set in law.

Alternatives to detention and international comparators

UNHCR is strongly supportive of the Select Committee’s broader review of the use of immigration detention by the UK authorities, and encourages it to consider the UK’s use of alternatives to detention.

UNHCR underlines the importance of the government expanding the use of alternatives to immigration detention. Alternatives to detention are proven to be effective in ensuring individuals cooperate with asylum and immigration processes and have achieved high rates of voluntary return for those not in need of international protection. They show that a more humane immigration detention system is compatible with national security concerns. At the same time alternatives to detention save considerable financial costs while avoiding the long-term and oftentimes devastating human cost of detention.

In the UK, Schedule 10 of the Immigration Act 2016 came into force on 15 January 2018. The only alternative to immigration detention is as set out in Schedule 10: Bail. Amongst other important changes, this ensures automatic judicial oversight of detention. In practice, the Immigration and Asylum Chamber of the First-tier Tribunal will automatically list bail hearings every four months for those persons who remain in immigration detention. There is as yet no published statistics or available information on this process.

In the UK, a person who is not detained will be in the UK with conditions to live at a specified address and report to the Home Office as required. Beyond provision of accommodation and subsistence, support in the form of community-based motivational counselling is not currently available. If the person does not have friends or family, the only social contact they may have is when they meet with the Home Office, their solicitor or health care professionals. In some cases which are difficult to resolve, for example when a specific report is required that can take months to obtain, individuals may find themselves being detained for lengthy periods or residing in the community largely unsupported with limited understanding of their position or relevant next steps. This can also create situations where people become vulnerable. We believe that the aims of either better integration or voluntary return can be met by helping an individual through the process with appropriate levels of communication, care and support.

In UNHCR’s view, while this framework is positive in that it provides a means through which individuals can avoid/be released from detention, it is limited in the sense of the case management and support it provides to individuals benefiting from the ATD. In the experience of UNHCR and States community based case management and support is critical to both addressing the needs of what can be a highly vulnerable population and cultivating compliance, including with respect to voluntary return for those individuals found not to be in need of international protection.

In UNHCR’s experience, the following elements are always present in successfully implemented alternatives:

• treating asylum-seekers and migrants with dignity, humanity and respect throughout the relevant asylum or migration procedure;
• providing clear, concise and consistent information about rights and duties under the alternative to detention and the consequences of non-compliance;
• providing asylum-seekers with legal advice, including on their asylum applications and options available to them should their asylum claim be rejected. Such advice is most effective when made available at the outset of and continuing throughout relevant procedures;
• providing access to adequate material support, accommodation and other reception conditions; and
• offering individualized “coaching” or case management services.

Regarding the latter, UNHCR highlights the importance of one-to-one casework support, which can be considered a cornerstone of ATDs in complex cases. Case managers are seen to have a critical role in establishing trust and providing humane treatment, both of which help facilitate voluntary compliance with immigration and asylum proceedings.[18]

International comparators

There is a range of good State practice of successful ATDs that may be of relevance to the UK. UNHCR has compiled a number of relevant practical examples (including over 30 good practices) in its ‘Options Papers’ on Alternatives to Detention and Care Arrangements for Children.[19]

In Sweden, asylum-seekers are appointed two caseworkers after registration. A first case worker is responsible for the asylum process: they conducts interviews with the applicant in order to investigate the claim and to prepare the decision that will be taken by the Swedish Migration Agency. A second case worker supports the applicant in solving everyday life questions (daily allowance, special allowance, school, housing etc.), referring them to medical care, counselling or other services where required. This second case worker also provides “motivational counselling” in order to prepare the asylum-seeker for all possible migration outcomes, and assesses the risk of absconding after a negative asylum decision. In the return process, they also organise formalised contacts to discuss return. This caseworker system is considered a factor that has positively affected the voluntariness of departure from Sweden. As a result many people who are ordered to leave Sweden do so without enforcement action being necessary.

Supervision, a more restrictive form of ATD, enables the imposition of reporting obligations by Swedish authorities. These oblige an individual to report to the nearest police authority or to the Swedish Migration Board on a regular basis and in some cases require them to surrender their identity document. At the same time, case management and support continue to be provided to the individual. Detention might be imposed when conditions of supervision are not complied with. Supervision has reportedly led to high compliance rates and costs savings, resulting from the fewer administrative burdens and other costs it requires. The Swedish government has confirmed that their entire detention estate currently consists of 350 beds and this must be viewed in the context of them receiving in excess of 160,000 asylum claims in 2016.

In Canada, and under contract with the Canadian Border Services Agency, the Toronto Bail Program, a non-profit entity, operates to support immigration detainees, which includes asylum-seekers and persons awaiting removal, to be released from detention via bail.

The Toronto Bail Program acts as the surety for those who have no family or other eligible guarantors. Under the Toronto Bail Program, no payment is made; rather asylum-seekers are released on the basis of the guarantee given. People deemed suitable agree voluntarily to cooperate with Toronto Bail Program and all immigration procedures including an undertaking to depart Canada in the event of a final negative decision on their asylum or immigration application. They sign a contract and reporting requirements ae reduced as trust is established. Failure to comply with obligations may result in the Toronto Bail Program informing the authorities, in which case the person would be re-detained. The program is reported to cost the equivalent of £5 to £7 per person per day compared with approximately £105 for detention. Furthermore, the program reported a maintenance rate of 94.31% in 2014.

UNHCR therefore notes the feasibility and value of systems that allow for persons to live within a community, albeit with reporting requirements placed on them. The importance of providing adequate support to individuals released onto ATDs, particularly those considered vulnerable, so as to cultivate compliance is underlined. The necessity of a flexible system is also emphasized, where reporting requirements are adapted to a person’s specific needs and reduce in frequency over time.

UNHCR recognises that the Home Office is currently working on strengthening the use of ATDs in the UK and is examining international best practice on alternatives. UNHCR is highly supportive of this process and will continue to work with the Home Office to improve the UK’s ATD framework. UNHCR encourages the Select Committee to continue to consider the role of alternatives to detention in the UK and encourage their development and implementation as a means of reducing the use of detention and ensuring adequate support for vulnerable individuals going through the immigration system.

April 2018