Detention of Asylum-Seekers: The Impact on Human Rights

by Kiera Burns, Associate Member, University of Cincinnati Law Review Vol. 93

I. Introduction

“In recognizing the humanity of our fellow beings, we pay ourselves the highest tribute.”[1] The widespread detention of asylum-seekers and refugees inflicts profound and often devastating consequences on individuals and families, disrupting lives and undermining human dignity.[2] Immigration detention is becoming a routine practice, rather than an exception, for those seeking asylum. This practice has considerable implications for vulnerable people, particularly children, and leads to unjust human rights violations.[3] Dismantling this commonplace, yet wrongful, detention practice of governments globally requires a human rights-based collaboration between governments, non-governmental organizations, and other stakeholders to reform detention practices for the better.[4]

This article will discuss the human rights violations often committed with immigration detention, specifically discussing policies in the United States and Australia. Adverse consequences on human rights, especially the right to family life, will also be examined. Part II will provide background on the current practices of refugee detention and the human rights perspective on these practices, specifically focusing on the recent shifts in law. Part III will discuss the need for concern of wrongful detention and what alternative solutions are available, including community-based management programs and reception models. Finally, Part IV will conclude by emphasizing a human rights-based approach and promoting safe options for children and families.

II. Background

Within the immigration context, “detention” refers to the deprivation of liberty or confinement in a closed place where asylum-seekers are prohibited from leaving at will, such as prisons or holding facilities.[5] These circumstances are enforced by judicial, administrative, public, and private authorities.[6] Detention occurs in various international zones, such as airports, islands, refugee camps, homes, and extraterritorial areas, making it a global issue.[7] The types of detention vary, and obstructions to rights, such as freedom of movement, may be shorter in term or lesser in magnitude.[8] Total confinement is the extreme end of detention and is a deprivation of liberty.[9]

The term “asylum-seekers” is defined in the 1951 Convention and 1967 Protocol of the Status of Refugees as those seeking refugee status or complementary, temporary, or subsidiary protection.[10] All procedures and determinations regarding refugee status are considered under human rights standards and have international protections.[11] Additionally, there are stateless people, who are not nationals under any state law, but still receive forms of international protection.[12]

A. The Importance of Human Rights Advocacy

A human rights-based approach, a conceptual framework that puts human rights and corresponding state obligations at the heart of policy, must address international human rights standards and violations of fundamental human rights.[13] This requires all processes to respect the obligations of human rights principles. A human rights-based approach includes universality, indivisibility, equality, non-discrimination, participation, and accountability.[14] The most disadvantaged people must receive special care, and duties and obligations must be met to uphold access to human rights.[15] These rights must be balanced and acknowledged by both governments and individuals.[16]

Several fundamental rights are implicated under detention policies, such as the right to seek asylum, the right to freedom of movement, the right to family life, and the right to liberty and security of persons.[17] Under the 1951 Convention, every person has the right to seek and have asylum from persecution, serious harm, and human rights violations in other countries.[18] Seeking asylum is not illegal, although these positions may be different from the normal migratory procedures.[19] The vulnerable position of asylum-seekers must be considered in determining any restrictions on human rights or processes for entry.[20]

A human rights-based approach to detention includes conditions with a minimum standard of living.[21] This means that conditions must be dignified for a human person. For example, this can include not being held in cells or subject to other criminal standards, access to necessities, and the availability of family units. Additionally, registrars must hold information on identification and keep it confidential to maintain a right to privacy. Lastly, proper staff training, especially in caring for post-traumatic stress, anxiety, and sexual and gender-based violence, must be provided.[22] Staff must also have sufficient protocols for upholding international codes of conduct and language barrier needs.[23]

At the intersection of the rights of children and immigration objectives, the United Nations High Commissioner for Refugees (UNHCR) maintains the position that any detention of children constitutes a human rights violation under the Convention on the Rights of the Child.[24] The Convention argues that the priority must be the child’s best interest when considering life-altering measures, and an ethic of care must govern situations with minors.[25] Because of children’s vulnerabilities, countries must ensure appropriate care arrangements and assessments to prevent human rights violations.[26] Children should only have family-based alternative arrangements to detention, and being unaccompanied does not justify detention.[27] Children are still developing psychologically, cognitively, and physically, therefore, detention even for short periods, can have a negative impact.[28] High rates of depression, post-traumatic stress disorder, anxiety, and sexual and gender-based violence affect many of these children.[29] Lastly, there is no evidence that the detention of children has any positive impact on changing or fixing problems in immigration.[30]

At the international level, the protection of human rights is laid out in the Universal Declaration of Human Rights, as Article 9 states that “no one should be subjected to arbitrary arrest, detention, or exile.”[31] Other protections are enshrined in the International Covenant on Civil and Political Rights, the UN Convention for the Protection of All Persons from Enforced Disappearance, the UN Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, and the Vienna Convention on Consular Relations.[32]

The UN Committee on the Rights of the Child strongly opposes the detention of children and establishes it as a human rights violation.[33] The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment correlates the deprivation of liberty and inhumane and degrading treatment of children with the detention of children based on their parent’s migratory status.[34] While the United Nations holds that children should rarely be detained, before the COVID-19 pandemic, about 330,000 children across seventy-seven countries were detained per year.[35]

Many international organizations further advocate for the protection of human rights. Amnesty International has declared the need for systematic change for those who are prisoners of conscience (imprisoned because of discriminatory reasons for who they are or what they believe), unjust trials, arbitrary detention (without cause), incommunicado (a lack of access to family and lawyers), secret detention, inadequate conditions, and torture.[36] Amnesty International calls for the prohibition of secret detentions, torture, and prisoners of conscience and for independent judges and monitoring bodies to ensure an effective legal process.[37]

Further, the Working Group on Arbitrary Detention (“Working Group”) is investigating deprivations of liberty or violations of international standards. Actions by the Working Group include urgent appeals, the undertaking of individual complaints, publishing opinions, and conducting visits and research.[38] In 2023 alone, 77 opinions were adopted regarding 173 detentions throughout 39 countries, and states were encouraged to have positive participation in collecting data, allowing visits, and reviewing legislation.[39]

B. Indefinite Detention in Australia

Before November 2023, indefinite detention of immigrants was legal in Australia.[40] A landmark decision overturned indefinite detention practices, correcting this human rights violation.[41] Australia’s Migration Act mandated the detention of migrants without a visa.[42] The Migration Act also prescribed that migrants could only leave detention after receiving a visa or leaving Australia.[43] For many, these conditions were unlikely because of volatile situations in their country or lack of “good character,” such as having a criminal background, which prohibited many from being granted a visa. This meant indefinite detention for some migrants, leading to court challenges over the legality of the Migration Act.[44]

Australia’s Migration Act was still good law until the case of a stateless Rohingya Muslim, who was afraid of persecution in Myanmar and filed for protection in Australia.[45] However, he had been convicted of a sexual offense against a child and was placed in indefinite detention after being released from prison.[46] The High Court had to address whether indefinite detention was permissible when returning to the migrant’s home country was not an option, and whether indefinite detention was harmonious with the Constitution of Australia.[47] The High Court found that the answer to the second question was no, stating that indefinite detention was incompatible with Australia’s Constitution, as detention for non-criminal reasons must be exceptional.[48] The Court held that while the Migration Act may grant executive power to detain a person while pursuing a better arrangement, it did not extend to situations where removal cannot take place.[49]

A new amendment established a visa procedure for those affected by the November 2023 High Court ruling.[50] As a result, dozens of migrants were released. Mandatory conditions, like monitoring devices and curfews, were imposed, specifically for those with a criminal history.[51] While this development shows progress in correcting human rights violations in detention situations, it is still vital to track possible infringements on human rights and understand the implications of those who cannot be removed.[52]

However, for Australian citizens facing detention abroad, the Australian government is still lacking coordination as there is not a single judicial role taking on wrongful detention cases. Many countries have found more success in having a single senior role devoted to cases involving detained nationals.[53] Detention abroad requires extensive policy, as opposed to regular consular detention cases, as it is an extreme infringement on human rights.[54]

Notably, Australia lacks a legal limit on how long minors can be held in detention.[55] Although children are no longer being held in mainland detention facilities, offshore facilities still hold asylum-seeking children.[56] This policy again circumvents human rights standards and poses significant concerns.[57]

C. Detention Policies in the United States

The United States also has concerning policies when it comes to indefinite and wrongful detention. Recent immigration policies have exacerbated the human rights crisis with the deterrence of migrants under former President Donald Trump. However, the Biden administration has also struggled to enact humanitarian asylum proposals amid the growing number of migrants in the U.S.[58] When it comes to children specifically, in 2022 there were more than 152,000 unaccompanied minors at the U.S.-Mexico border.[59] The U.S. has routinely detained children, including infants and toddlers.[60]

The Flores Settlement of 1997 is a legal agreement that established national minimum standards for detained immigrant children.[61] This settlement came from the Flores v. Reno case, where an unaccompanied minor experienced harsh detention treatment in violation of human rights standards.[62] Recently, Open Air Detention Sites have been found to be unsanitary and in violation of the Flores Settlement.[63] The litigation in Flores v. Garland sought to enforce the Flores Settlement and reduce detention periods for children within these open-air facilities.[64] The Court held on April 3, 2024, that children must receive full protection under the Flores Settlement and cannot be detained in these sites beyond what is reasonable to arrange transportation to more suitable facilities.[65]

The US government has also taken questionable action within international consular law, including the right to notification under the Vienna Convention for foreign nationals.[66]  Numerous legal challenges have been brought surrounding the 2008 Medellin v. Texas case, in which a Mexican national received the death penalty but was wrongfully denied an opportunity to receive post-conviction relief to appeal his convictions.[67] In the appeal, the defendant argued that his international consular rights were infringed upon when he was not informed of his right to contact the consulate.[68] The U.S. can enact domestic legislation to enforce international obligations regarding this issue, but there have been no efforts to do so.[69]

Even in situations regarding U.S. nationals who are detained abroad, the U.S. has been slow to advocate for ending arbitrary detention and addressing the need for resources for those wrongfully detained.[70] If the U.S. declares a citizen to be wrongfully detained, there is a higher likelihood for positive legal action to be taken.[71] For example, Vladimir Kara-Murza is a U.S. national who has been detained since 2022 and meets ten out of eleven criteria for wrongful detention, yet the U.S. has failed to determine her case.[72] The number of Americans being held hostage abroad is increasing, and issues are becoming steadily more politicized. For example, in 2022 when WNBA player, Brittany Griner, was held in a Russian labor camp for ten months for bringing cartridges of cannabis into Russia.[73] Policy solutions need to address this rapidly growing problem.[74]

III. Discussion

Wrongful detention has grown globally, and human rights organizations have called for governmental action to address this problem, advocating for increased transparency and engagement.[75] Alternatives to detention and compliance with detention standards are needed to end arbitrary detention, and ensure justice for those whose rights have been violated.[76]

A. Guidelines and Suggestions for Detention

The UNHCR has established guidelines, including the right to seek asylum and that this right be respected. Other guidelines include that detention must only be used as an exceptional measure, when necessary, reasonable, and proportionate to a legitimate purpose.[77] Furthermore, detention must be legal and must not be discriminatory. Maximum limits must be established and be subject to procedural checks.[78] There is no reason for indefinite arbitration, and there must be safeguards to limit extensions of detention.[79]

Additionally, recommendations to sort out the root of migrant problems is greatly needed.[80] There is a need for interference, such as remedial measures, from governments in countries that discriminate against people or leave them without basic human rights, as these actions pose a risk to global security.[81] While serving asylum-seekers and immigrants it is important to remember that these are real people who may be facing human rights violations in their home countries.[82] Governments need to reform policies, like in Australia, to offer better assistance to those who are stateless or unlikely to be removed to a different country. This can be achieved through procedures for when visas may again be offered regardless of past criminal history. Rehabilitative opportunities after time served, with the ability to reapply for a visa, could also be a plausible option.[83]

A Global Strategy Framework by the UN Refugee Agency aims to implement initiatives that work towards specific asylum-related goals. These goals include strong advocacy interventions and mediations, awareness ad campaigning, increasing staff resources, stronger partnerships, and information and data reporting and sharing.[84] This requires international cooperation through pressure and forward-thinking legal arguments, as well as protection efforts that safeguard beneficial detention reform and alternatives through domestic organizations for refugees, human rights, and immigrants.[85]

Certain qualifications must be made clear within detention guidelines. This includes the non-detention of children, implementation of alternatives to detention, and ensuring that the conditions of detention centers meet international standards while being regularly monitored.[86] Detention is never in the best interest of children and families, and suggestions from UNHCR include case management support, community placement options, and a focus on integration prospects.[87] Strategies must continue to advocate for the proper freedom of movement for children opposing detention, supporting governments in creating family-based care arrangements, and monitoring effective alternatives to detention.[88]

B. Alternatives to Detention

Alternatives to detention are important because detention is meant to be an international measure of last resort. Alternatives are less expensive, receive higher cooperation rates, avoid unnecessary psychological and physical harm, and increase trust within host communities and government agencies.[89] There are concerns about detainees being used as political pawns or being detained without just reason because of political motivations and negotiations between states. Alternatives serve to avoid these issues and allow for effective legal procedures.[90]

Examples of successful alternatives to detention include reception programs in Spain, which provide food, legal assistance, housing, and cultural integration opportunities, such as language classes.[91] These programs are funded by the Spanish Ministry of Inclusion, Social Security, and Migration.[92] Other programs in Poland, Cyprus, and Bulgaria support the idea that alternative detention practices increase engagement in immigration processes, with eighty-six percent of participants remaining voluntarily involved in their legal immigration procedures.[93] Case managers and holistic support programs can make legal processes more effective and help participants humanely.[94]

In lieu of detention, alternatives are preferred to ensure compliance with a human rights-based approach. These alternatives include legislation, policies, and practices that allow asylum-seekers to reside in a community with guidelines or restrictions that are also in line with human rights standards.[95] Restrictions include surrender of documents, bond, bail, designated supervision, reporting qualifications, electronic monitoring, or required residence.[96] It is important to note that alternatives to detention are only relevant when there are grounds to impose a detention measure in the first place. Not all alternatives are equal, as some, such as electronic monitoring, create a social stigma.[97] Regardless of alternatives offered, humans must be treated with respect and dignity, be informed, and be given access to legal advice and support.[98] Each case must be properly documented to avoid mix-ups, re-detention, restraints on rights, and bars on accessing employment or education.[99]

At a granular level, this may require more incentives and pressures to become involved in and abide by international human rights agreements. International treaties must ensure compliance through transparent mandatory reporting and be less tolerant of states making reservations or opting out of treaties that affect basic human rights.[100] Stricter compliance would help prevent the circumvention of upholding human rights, such as Australia being a party to the Convention on the Rights of the Child, yet still detaining children in offshore facilities.[101]

C. Equal Access to Justice

One of the most important ways to support immigrants and refugees is to help them become aware of their rights and encourage access to legal resources. The European Union Reception Conditions Directive 2013/33/EU commands independent and free legal aid, assisting with appeals or reviewing detention of asylum-seekers.[102] Detained immigrants are eleven times more likely to pursue justice relief with legal counsel and are twice as likely to receive relief with counsel than without.[103] Ensuring equal access to justice for immigrants makes court proceedings more efficient, which is especially important during a time when immigration cases are highly backlogged. Sometimes, it takes as long as five years for an asylum seeker to have their first hearing.[104]

Equal access to justice requires an increase in physical access to courts and lawyers, either through mobile courts or online nonprofit opportunities. Other options include removing barriers to law, such as prohibiting discriminatory practices and listening to criticisms of judicial systems. Lastly, increasing awareness through posters and forms, while keeping in mind literacy and language barriers, can help inform people of their rights and opportunities to appeal.[105]

IV. Conclusion

The detention of asylum-seekers must be analyzed under a human rights-based approach. There must be clear standards that prohibit wrongful detention and the detention of children. Additionally, access to justice and alternatives to detention must be encouraged and monitored internationally. Each person deserves dignity and respect, especially those in vulnerable situations. Encouraging access to legal resources is integral in avoiding deprivations of liberty and maintaining human rights for every person.  

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[1] 9 Powerful Quotes by Thurgood Marshall, BIOGRAPHY, https://www.biography.com/legal-figures/thurgood-marshall-quotes [https://perma.cc/FG7Q-SMPA] (Jan. 28, 2021, 5:35 AM).

[2] Detention, United Nations High Commissioner for Refugees, https://www.unhcr.org/us/detention [https://perma.cc/BT4F-6DYY] (last visited Nov. 26, 2024).

[3] Id.

[4] Id.

[5] Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention at 9, United Nations High Commissioner for Refugees (2012), https://www.refworld.org/policy/legalguidance/unhcr/2012/en/87776 [https://perma.cc/5439-WJFG] [hereinafter Guidelines].

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 10.

[11] Id.

[12] Id.

[13] Human Rights-Based Approach, UN Sustainable Development Group, https://unsdg.un.org/2030-agenda/universal-values/human-rights-based-approach [https://perma.cc/9SF4-TFEX] (last visited Oct. 18, 2024).

[14] Id.

[15] Id.

[16] Id.

[17] Guidelines, supra note 5.

[18] Id. at 12.

[19] Id.

[20] Id. at 33.

[21] Id.

[22] Id. at 31.

[23] Id.

[24] Id. at 34.

[25] Id.

[26] UNHCR’s position regarding the detention of refugee and migrant children in the migration context, United Nations High Commissioner for Refugees (Jan. 2017), https://www.unhcr.org/sites/default/files/legacy-pdf/58a458eb4.pdf [https://perma.cc/JD8X-F7Z2].

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] G.A. Res. 217A (III), Universal Declaration of Human Rights (Dec. 10, 2948).

[32] International Covenant on Civil and Political Rights, art. 23, Dec. 16, 1966, 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978).; International Convention for the Protection of All Persons from Enforced Disappearance, Dec. 20, 2006, G.A. Res. A/61/177 (2006); G.A. RES/43/173, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Dec. 9, 1988); Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77.

[33] Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.

[34] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984

1465 U.N.T.S. 85.

[35] Amelia Cheatham & Diana Roy, U.S. Detention of Child Migrants, Council on Foreign Relations, https://www.cfr.org/backgrounder/us-detention-child-migrants [https://perma.cc/24US-LN64] (Mar. 27, 2023).

[36] Detention and Imprisonment, Amnesty International, https://www.amnesty.org/en/what-we-do/detention/ [https://perma.cc/S6Q8-9NAY] (last visited Oct. 18, 2024).

[37] Id.

[38] Fact Sheet No. 26 (Rev. 1): Working Group on Arbitrary Detention, United Nations Human Rights Office of the High Commissioner (Feb. 14, 2024), https://www.ohchr.org/en/publications/fact-sheets/fact-sheet-no-26-rev-1-working-group-arbitrary-detention.

[39] Id.

[40] Júlia Zomignani Barboza, Indefinite detention is finally declared unlawful in Australia: what next?, Refugee Law Initiative Blog (Jan. 16, 2024), https://rli.blogs.sas.ac.uk/2024/01/16/indefinite-detention-is-finally-declared-unlawful-in-australia-what-next/#:~:text=In%20November%202023%2C%20the%20High,violation%20in%20Australia%2C%20deserves%20attention. [https://perma.cc/3LG9-CGGV].

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] Id.

[53]Australia: Support Citizens Wrongfully Held Abroad, Human Rights Watch (Sept. 4, 2024), https://www.hrw.org/news/2024/09/05/australia-support-citizens-wrongfully-held-abroad [https://perma.cc/UEJ4-BG2P].

[54] Id.

[55] Cheatham, supra note 35.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id.

[61] Flores v. Garland, Center for Human Rights and Constitutional Law, https://www.centerforhumanrights.org/flores-v-garland [https://perma.cc/WM9W-Z394] (Sep. 2, 2024).

[62] Reno v. Flores, 507 U.S. 292, 319 (1993) (O’Connor, J., concurring).

[63] Id.

[64] Id.

[65] Id.

[66] Margaret E. McGuinness, Medellin v. Texas: Supreme Court Holds ICJ Decisions under the Consular Convention Not Binding Federal Law, Rejects Presidential Enforcement of ICJ Judgments over State Proceedings, American Society of International Law (Apr. 17, 2008), https://www.asil.org/insights/volume/12/issue/6/medellin-v-texas-supreme-court-holds-icj-decisions-under-consular [https://perma.cc/FN8C-G3WT].

[67] Id.

[68] Id.

[69] Id.

[70] RFK Human Rights Calls for Stronger Response to Arbitrary Detention on US Hostage and Wrongful Detainee Day, Robert F. Kennedy Human Rights (Mar. 8, 2024), https://rfkhumanrights.org/our-voices/rfk-human-rights-calls-for-stronger-response-to-arbitrary-detention-on-us-hostage-and-wrongful-detainee-day/ [https://perma.cc/D4GZ-HFGX].

[71] Id.

[72] Id.

[73] T.J. Quinn, Brittney Griner’s book details harsh life in Russian prison, ESPN (May 7, 2024),https://www.espn.com/wnba/story/_/id/40071460/brittney-griner-wnba-phoenix-mercury-russia-detained-released-memoir [https://perma.cc/HF2X-GRVF].

[74] CSIS Launches Bipartisan Commission on Hostage Taking and Wrongful Detention, Center for Strategic & International Studies (Jun. 1, 2023), https://www.csis.org/news/csis-launches-bipartisan-commission-hostage-taking-and-wrongful-detention [https://perma.cc/FW9H-WSF2%5D.

[75] RFK Human Rights Calls for Stronger Response to Arbitrary Detention on US Hostage and Wrongful Detainee Day, supra note 70.

[76] Id.

[77] Guidelines, supra note 5.

[78] Id.

[79] Id.

[80] Id.

[81] Id.

[82] Id.

[83] Barboza, supra note 40.

[84] Detention, supra note 2.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Options Paper 2: Options for governments on open reception and alternatives to detention, United Nations High Commissioner for Refugees (2020), https://www.refworld.org/policy/strategy/unhcr/2020/en/104606 [https://perma.cc/N3CT-AKMB] [hereinafter Options Paper 2].

[90] RFK Human Rights Calls for Stronger Response to Arbitrary Detention on US Hostage and Wrongful Detainee Day, supra note 70.

[91] Dismantling Detention, Human Rights Watch (Nov. 3, 2021), https://www.hrw.org/report/2021/11/03/dismantling-detention/international-alternatives-detaining-immigrants [https://perma.cc/XNT4-GHH5].

[92] Id.

[93] Id.

[94] Id.

[95] Guidelines, supra note 5.

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Daniel W. Hill Jr., Avoiding Obligation: Reservations to Human Rights Treaties, 60 The J. of Conflict Resolution 1129, 1150 (Sept. 2016).

[101] Cheatham, supra note 35.

[102] Options Paper 2, supra note 89.

[103] Access to Counsel, National Immigrant Justice Center, https://immigrantjustice.org/issues/access-counsel [https://perma.cc/N394-U93S] (last visited Oct. 19, 2024).

[104] Id.

[105]Necessary Condition: Access to Justice, United States Institute of Peace, https://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/rule-law/access-justice [https://perma.cc/L8KZ-6YU9] (last visited Oct. 19, 2024).

 

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Cover Photo by John Englart on Flickr.