More Alternatives to Mandatory Detention
This information has been compiled by South West Action for Refugees from two sources:
“Asylum Seekers in Sweden: an integrated approach to reception, detention, determination, integration and return” by Grant Mitchell. Available from: www.refugeecouncil.org.au
“Protecting refugees: alternatives to a policy of mandatory detention.” by Alexander W Nicholas, Research Officer, Australians for Just Refugee Programs.
June 2002
Background:
DIMIA stated that at 3 May 2002, there were 1,258 people in immigration detention in Australia.
The Budget papers, delivered by Treasurer Peter Costello, revealed that there would be an outlay of an extra $1.24 billion on the Pacific solution over five years including 2001-2002. Considering Australia continues to receive approximately 4500 boat people each year, this would bring total spending on border security (preventing asylum seekers reaching Australian shores) to $2.87 billion to be spent over five years (Clennel 2002).
Systems operating in other countries:
A look at the evolution of immigration detention in the United States, Canada, the United Kingdom and Sweden offers valuable insight into alternative detention policy. Sudden increases in asylum seekers in the 1980s saw detention become an issue in each of these countries, but each has dealt with the phenomenon in quite different ways. The Australian government alone has chosen to entrench a policy of mandatory detention.
USA:
The US authorities have approached the issue of detention in a systematic manner trying alternatives such as the INS Pilot Parole Project. Agreed requirements were that individuals report to the local INS office monthly, appear for all immigration hearings, and appear for deportation if ultimately excluded. Carefully administered, working with community and government agencies, it prevented unnecessary detention of asylum seekers and proved much cheaper than maintaining detention facilities. The INS review found that concerns over asylum seekers absconding proved unfounded. It found high rates of compliance by represented asylum applicants in terms of meeting monthly reporting requirements: 503 reported while 35 failed to report (93 per cent compliance with INS reports) and a 95 per cent compliance rate regarding appearances while on parole with 42 appearances in the immigration court and two non-appearances.
Another progressive program, trialed by the INS in 1997, was the Appearance Assistance Program (AAP). The alternative approach begins with the observation that people’s willingness to attend hearings and comply with terms of community supervision changes over time. Thus the focus is to maximise release and community supervision at the beginning of a person's case, when they have an incentive to appear at their hearing, and maximise detention at the moment that the person loses his or her claim. Under the alternative approach those with legitimate claims will have greater opportunity to prepare and will never spend time in detention. At the same time more of those who lose their claim will be deported. On March 31 2000, the last day of program operations, 91% of the 153 AAP intensive participants had appeared for all of their required hearings compared to 71% (401 participants) for the comparison groups that faced no risk of re-detention. The program proved close supervision to be a practical possibility even in the complex neighbourhoods of New York. This was primarily because of the role that a community sponsor, known as a guarantor, plays. When a detained asylum seeker met the criteria (community ties and a guarantor) the AAP would recommend release from custody, without bond, conditional upon complying with the programs requirements. The INS had discretion to approve or deny the recommendation and violation of supervision requirements could result in recommendations for re-detention. The results of the AAP make a compelling case for community supervision as an alternative to detention. It uses proven selection criteria and supervision techniques to obtain voluntary compliance so long as the risk of absconding does not become too great. It was found to increase the efficiency of the expensive detention system and, more importantly, those seeking our protection would, in many cases, be able to avoid the pain of detention altogether.
Canada:
In 1967 Canada transferred from the discretionary administrative model (that prevails in Australia) to an adjudicative model. This system recognises a right to entry for purposes of determination and allows access to welfare benefits and freedom in the community while awaiting determination. Asylum seekers are detained until verification of their identity and then released with frequent detention reviews.
UK:
Significant reforms to the United Kingdom asylum and immigration policy announced in October 2001 place greater emphasis on the optimum time to detain asylum applicants. The new system will include a three-tier structure for asylum seekers – induction, accommodation and removal centres. Induction centres will accommodate new applicants for two to ten days, enabling screening and health checks. Accommodation centres for asylum seekers will be trialed offering full board, education and health facilities. The centres will have open access but applicants will be required to sleep there and receive their determination decisions in them. Those refusing accommodation centre places will not be eligible for any further support. A new welfare system has been provided to cover food, clothing and government services. In order to identify those in the community they have introduced an ID smart card that includes a photograph and fingerprint details of the asylum seeker.
Sweden:
Sweden received almost 16,000 asylum seekers in 2000, which per capita is roughly double the intake of Australia. Considering that up to 80% of asylum seekers arrive in Sweden with fake passports or with no documentation at all, the potential for problems and public concern is substantial.
The Swedish model of detaining asylum seekers was reformed in 1997. All asylum seekers who arrive in Sweden without documentation are detained only until their identification has been investigated and verified (a period lasting from two weeks to two months) and not for the entire duration of the determination process (Stagoll 2001). However the government has also stipulated that detention in Sweden shall only be employed if supervision is deemed inadequate. In practice this means that asylum seekers may be signed into the detention centre and subsequently released into the reception centre after an initial assessment. This is often the case for families, single women and unaccompanied youths. The average stay in a Swedish detention centre is 47 days. Under Swedish law, no child under 18 years shall be held in detention for more than 3 days. In extreme circumstances this can be extended to 6 days.
If an unaccompanied minor arrives in Sweden they are taken directly to a supervised group home run by the Migration Board and Child Social Services.
The majority of asylum seekers then live freely in the wider community. A person who has been immigration cleared and sought asylum is taken initially to the Carlslund Refugee Reception Centre. There they are signed into the centre and given a Caseworker –handläggare - whose job it is to explain the refugee determination process and their rights and entitlements while awaiting a decision. The caseworkers also ensure their asylum application is processed correctly, and that interpreters and legal representation are sought if needed. They also provide counseling to prepare asylum seekers for all possible immigration outcomes.
If the applicant has family or close friends in Sweden they can choose to live with them, which over half of all applicants do. Others live in regional refugee centres.
If it is assessed that an asylum seeker’s application will take more than four months to determine, as most do, then the applicant is entitled to work. All asylum seekers are offered free housing, but must provide for themselves if they have enough money. Emergency medical and dental procedures and prescriptions are provided at around AUD$10. All asylum seeker children receive the same medical coverage as Swedish children.
Regional refugee centres are essentially a number of flats and apartments in small communities close to a central office reception, which includes childcare and recreation facilities. Asylum seekers must visit the reception office at least monthly for their allowance, news on their application and need and risk assessment. All asylum seekers awaiting a decision are encouraged to participate in some form of organized activity such as English or Swedish lessons if they are not working.
Sweden’s two step refugee determination process is thus built on a thorough refugee screening process by the Migration Board and the Alien Appeal Board’s autonomous multi-member tribunal and the incorporation of a humanitarian element in the initial application.
While there are many differences in Australian and Swedish experience and history of refugees and asylum seekers there are still many lessons that can be learned. The problem’s facing Sweden’s detention centres prior to 1997 bear a marked resemblance to those currently facing Australia.
Many of these problems, including riots, mass hunger strikes and worker safety have been addressed due to comprehensive changes by the Swedish government following an inquiry in 1997. The changes included:
- The removal of private contractors and the police from the detention centres
- Dividing detention into 3 categories: initial health, security and health checks; investigation; and for realising return for individuals at high risk of absconding.
- Implementing a caseworker system aimed at need and risk assessment and preparing detainees for all immigration outcomes
- Increasing transparency in management and operation, with centres to be run more like closed institutions than prisons.
- Ensuring all staff are trained to work with asylum seekers and show appropriate cultural and gender sensitivity and respect to all detainees.
- Increasing access for NGOs, clergy, researchers, counsellors and the media.
- Allowing for freedom of information, such as access to internet, NGOs and the option to speak to the media
- Ensuring legal counsel and the right to appeal is available
- Ensuring no children are held in detention for extended periods and removing families as soon as possible.
The system of release into the community after initial checks has brought about a significant reduction of tax payer’s money and public outcry and has not lead to large numbers of asylum seekers absconding. It has also been successful in reducing the appeal time and the need for asylum seekers to access the courts. This has been achieved by:
- The incorporation of a humanitarian and ‘other protection needs’ category at the initial decision-making stage.
- Allowing for an independent multi-member tribunal to review the initial decision on both ‘convention’ and other grounds.
- Ensuring all asylum seekers are represented by legal counsel all both stages of the refugee determination process.
Probably the most important lesson to be learned from the Swedish experience is that a healthy migration policy is not based on deterrence or on restrictive policies or visas but allows for an expeditious refugee determination process and effectively realises settlement or return. It is a system based on treating asylum seekers humanely and with a uniformity of rights and entitlements irrespective of the means of arrival, allowing for the best possible outcome for both those seeking asylum and for the wider community.