3.5 DETENTION OF ASYLUM SEEKERS

In addition to the ratification of the 1951 UN Convention and the 1967 Protocol relating to the Status of Refugees, let me emphasize the necessity to develop fair and efficient procedures for refugee status determination. It may be a complicated, expensive and lengthy process to develop procedures for distinguishing between immigrants and asylum seekers, but no asylum policy can be effective without making this distinction.

Article 14 of the Universal Declaration of Human Rights states that "Everyone has the right to seek and to enjoy in other countries asylum from persecution".

Detention of persons who are innocent of any criminal offence and may be fleeing gross violations of their human rights in order to seek asylum is a matter of serious concern, both in principle and in terms of the conditions of the detention regime itself. Freedom from arbitrary detention is a fundamental human right, and the use of detention is, in many instances, contrary to norms and principles of international law.

The practice of detaining asylum seekers raises several civil liberties issues. Legitimate concerns of states in the field of asylum and immigration policy must be acknowledged, but practices which associate asylum seekers with common criminals or result in regimes of harsh treatment are inappropriate to an issue where important human principles are at stake.

It is recognized under international law that asylum seekers form a special category of persons to whom detention should be applied in a particularly cautious manner and who should not be detained simply as punishment for possible illegal entry.

In addition to the UN Convention and Protocol relating to the Status of Refugees various other international legal instruments set out standards for the use of detention e.g. the Universal Declaration of Human Rights (Article 9), the International Covenant on Civil and Political Rights (Article 9 (1), 10(1)), The European Convention on Human Rights (ECHR) (Article 5), the Convention on the Rights of the Child (Article 37), the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

Furthermore, having noted that "large numbers of refugees and asylum seekers in different areas of the world are currently the subject of detention or similar restrictive measures by reason of their illegal entry or presence in search of asylum, pending resolution of their situation". United Nations High Commissioner for Refugees (UNHCR) Executive Committee Conclusion no. 44 goes on to say that "in view of the hardship which it involves, detention should normally be avoided". Underlining its exceptional character the Conclusion states that "If necessary, detention may be resorted to only on grounds prescribed by law:
- to verify identity;
- to determine elements on which the claim to refugee status or asylum is based;
- to deal with cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum;
- or to protect national security or public order".

Thus, the use of detention for other purposes, such as deterrence, is inconsistent with these standards. The late Norwegian scholar on refugee matters, Mr Atle Grahl-Madsen, observed that ....detention may not be resorted to just for the convenience of the authorities. Such a measure must, in order to be legal, really be deemed necessary... It does not suffice that detention is considered convenient for the police or immigration authorities. Under the terms of Article 31(2), (of the 1951 Convention) the authorities have to accept inconvenience".

Much more could be said about fee complex problem of detention of asylum seekers, about separating asylum seekers from persons detained as common criminals, about the guarantees in the ECHR of lawfulness, protection against undue prolongation of detention, about the principle of proportionality, and about the right to appeal. In the following examples of the initiatives and action that I have taken in various member states, I will elaborate a little on some of these aspects.

Suffice it here to conclude that the right to personal liberty is a fundamental right, recognised in all the major human rights instruments, both at global and regional levels. The right to seek asylum is, equally, recognised as a basic human right, and detention of asylum seekers should normally be avoided. Such a measure may exceptionally be resorted to, if it is clearly prescribed by a national law which is in conformity with general norms and principles of international human rights law.

Denmark

In my Report of May 1995,I mentioned an administrative practice instituted in September 1994 whereby male asylum seekers in their twenties coming mainly from Eastern and Central European countries, including some of the CBSS member states (criterion of nationality) were detained under the presumption that their claims were manifestly unfounded. This was combined with the presumption that they would not comply with the asylum procedure and disappear or commit crimes during their stay in Denmark.

I criticised this practice for several reasons. In my opinion it was very doubtful whether such a practice could in fact be initiated under the provisions of the Danish Aliens Act. Furthermore the practice did not seem to be in accordance with Article 5 and 14 of the ECHR and with the UNHCR Ex. Com. Conclusion no. 44. The practice was subsequently declared unlawful by the courts, and in June 1995 the Aliens Act was amended by the Parliament to legitimize detention of this category of asylum seekers.

The wording of the new paragraph reads as follows:
"An alien, whose application for a residence permit pursuant to Article 7 (on the application for asylum) is expected to be, or is already being processed in accordance with the procedure set out in Article 53 (on the procedure for manifestly unfounded applications), may, on the basis of a concrete, individual assessment, be detained if it is necessary to ensure that the alien is present during the asylum determination procedure, unless the measures set out in Article 34 (depositing of passport, reporting duty etc.) are considered adequate."

In connection with the above-cited amendment, the Ministry of the Interior looked into the compatibility of the Danish legislation with international law (especially Article 5 and 14 of the ECHR) and concluded that there was no incompatibility.

Despite the fact that the requirement of lawfulness in ECHR Article 5, whereby deprivation of liberty only can take place in accordance with a procedure prescribed by law, is now fulfilled, the practice is, in my opinion, still problematic.

Article 5 (l)(f) authorises detention "of a person against whom action is being taken with a view to deportation or extradition." (My underlining).

The amended paragraph of the Aliens Act constitutes an innovation in the sense that detention is now possible during the determination procedure. It has been established several times by the European Court of Human Rights that Article 5 sets out an exhaustive list of situations where detention is authorized, and that this list must be interpreted restrictively. According to generally accepted principles of interpretation it seems doubtful whether the scope of Article 5 (1)(f) can be extended to include detention of asylum seekers who are in the process of having their status determined.

Even if the new provision and the ensuing practice in itself is in conformity with Article 5, the detention may not be applied in a discriminatory way cf. Article 14. The question is whether the basic criterion that only a certain group of asylum seekers (discrimination on the grounds of i.a. nationality) are subjected to detention can be objectively and reasonably justified. The motives for this distinction have to be reasonable, the aims legitimate and the consequences justifiable or legitimate in order not to violate Article 14.

Furthermore the proportionality requirement entails that the least infringing measure must be applied when restricting the rights of the individual.

In practice, very general criteria seem to apply for the detention of this group of asylum seekers. No complaints have so far been made to the Commission or Court about the Danish legislation and practice, but a practice according to which a specific group of asylum seekers are detained upon general criteria may constitute differential treatment in contravention of Article 14.

It yet remains to be seen how the amended rule will be put into practice and especially whether a concrete individual assessment is made in each case where the authorities find it necessary to detain.

The Danish Minister for the Interior intends to assess the continued necessity of this extended access to detain asylum seekers during the determination procedure sometime this summer, and I will continue to follow the matter closely.

Finland

On 1 May 1995 I wrote a letter to the Minister for Foreign Affairs of Finland drawing the attention to some cases concerning asylum seekers who were kept in custody together with convicted persons and suspects. The question was raised whether it would be possible to change the practice of keeping asylum seekers, who, in the opinion of the authorities, had to be deprived temporarily of their liberty, in custody together with convicted criminals or persons under pre-trial investigation.

In the reply to this letter dated 15 January 1996 the Ministry of Foreign Affairs of Finland, supplying detailed and thorough information on the legal regulation of the situation with regard to asylum seekers in Finland, informed me that the practice of keeping some asylum seekers in detention together with criminal offenders and suspects does take place in limited cases. The figures quoted indicated - according to the Government of Finland - that the number of such temporarily detained asylum seekers (89 out of 839 in 1994 and 87 out of 849 in 1995) was too small to justify economically the establishment of a special detention centre for them.

With due respect to the arguments advanced by the Finnish Government in support of the currently existing practice, I still hope that the Government of Finland will continue to keep this matter under close scrutiny with a view to establishing facilities in order to gradually eliminate altogether the practice of detaining asylum seekers together with convicted persons and suspects.

Latvia

In September 1995 I approached the Minister for Foreign Affairs and expressed my deep concern regarding the developments in the situation of the asylum seekers (a group of approximately 140 persons) detained in the Olaine prison outside Riga. I referred to reports according to which the Latvian police had reacted with excessive use of force to a hunger strike Initiated by the asylum seekers earlier that month. I also expressed my surprise that Caritas (international relief organisation of the Catholic Church) for fee past two weeks had been forbidden to continue its weekly deliveries of food and other important supplies and that the UNHCR representative had been prevented from visiting the asylum seekers.

I am aware of the complex problems that Latvia is faced with in relation to the anxiety about illegal immigration, and I have discussed this issue and the need to formulate the necessary refugee legislation on several occasions.

In my opinion the agitated situation which prevailed in Olaine is related to the absence of appropriate legislation and lack of sufficient reception facilities and determination procedures. I indicated that other similar situations could not be avoided if the process of establishing these prerequisites for a more humane refugee policy was not given high priority by the Government.

I recommended that all possible efforts must be made in the meantime to secure that basic human rights are observed with regard to the asylum seekers detained in Olaine and urged the Minister to do his utmost to bring about a change of attitude from the responsible authorities so that the problems could be settled in a peaceful manner and in compliance with basic human rights.

Since the situation seemed to deteriorate further, and since there was no indication of an imminent solution to the untenable position of the asylum seekers, I wrote to the Ministers for Foreign Affairs in some of the member states suggesting that they consider making a joint effort in this case and devise a model for sharing the responsibility for accepting the group. The Latvian Minister for Foreign Affairs was naturally informed of this initiative.

In principle I agree that the best long term solution remains the reception of asylum seekers in Latvia at a level that corresponds to minimum standards of treatment, and to an extent which is reasonable in relation to the country's resources. In this connection the international community has a responsibility to support serious attempts to establish a humane refugee policy in every possible way. Consequently caution should normally be exercised in choosing resettlement as a solution. Resettlement to e.g. the Nordic countries would solve the immediate problem, but should be resorted to only in exceptional circumstances.

In my view, the situation in Olaine was, at the time, exceptional and unacceptable. The asylum seekers had been detained there since April 1995 - according to my information, under harsh and inhuman conditions. Prior to this the majority of them, belonging to the group whose boat was wrecked in late December 1994, had been kept in detention under harsh conditions in various places, including two weeks in the "train of despair" which shuttled between Latvia, Russia and Lithuania.

The member states, to which I had addressed myself regarding a joint effort, shared my concern in this matter, but found it more appropriate to support the creation of a legal and administrative basis for the ratification and implementation of the 1951 Convention and to solve the situation in close cooperation with the UNHCR.

Subsequently the physical conditions for the asylum seekers in dame have improved in the sense that they have been moved to a renovated building with central heating and other facilities. Furthermore the UNHCR representative has again been allowed access. This is of course positive, but the situation is still not tenable. The group of asylum seekers have entered into their second year of detention, and there is still no indication of any imminent solution to this unacceptable situation.

I have written to the Latvian authorities in order to be informed as to the legal basis for their continued detention. The replies received so far have not convinced me of the legality of the continued administrative detention.
During my last visit to Riga 9-12 April 1996,I reiterated my serious concern on several occasions. Apparently a working group has now been created with the purpose of Winding a speedy and durable solution. This is a positive development and I continue to follow the matter closely.

Sweden

During my official visit to Sweden in May 1995 I was informed that in some cases asylum seekers are deprived of their liberty during the processing of their application and kept together with persons suspected of or convicted of crimes. Persons who are neither suspected nor convicted of a crime should not be accommodated with persons detained as common criminals in ordinary prisons. I subsequently recommended to the Minister for Foreign Affairs to amend this situation and referred to UNHCR Ex.Com. Conclusion no. 44.

There may be exceptions where an asylum seeker e.g. presents a danger or a threat to his or her surroundings and where detention is deemed necessary, but in this case the person should be accommodated in special centres.

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) in its report on the visit to Sweden in August 1994 recommended that steps be taken as a matter of urgency to ensure that persons detained under the aliens legislation are not held in prison premises.

In the response of the Swedish Government to this report it is indicated that the Refugee Policy Commission in a report has supported proposals made to amend the situation in the sense that asylum seekers should no longer be held in police detention facilities, remand prisons or prisons. As far as I understand, this report is currently being officially circulated for comment, and statutory amendments as a result of these proposals cannot enter into force earlier than July 1996.

I strongly support the proposals made by the Commission and hope that the necessary amendments will enter into force as soon as possible.