There arealternatives

A handbook for preventing
unnecessary immigration
detention (revised edition)

Including the Revised
Community Assessment andPlacement model (CAP)The International Detention Coalition (IDC) is a unique global
network, of over 300 civil society organisations and individuals
in more than 70 countries that advocate for, research andprovide direct services to refugees, asylum-seekers andmigrants affected by immigration detention.
Coalition members are supported by the IDC Secretariat
office, located in Melbourne, Australia, and regional staff
based in Berlin, Germany, London, United Kingdom, Geneva,
Switzerland, Mexico City, Mexico and Kuala Lumpur, Malaysia.

IDC Secretariat
Level 1, 112 Langridge Street
Melbourne Victoria 3066
Australia
Email: info@idcoalition.org
Website: www.idcoalition.org© International Detention Coalition, 2015
ISBN Paperback: 978-0-9871129-8-9ISBN PDF version: 978-0-9871129-9-6
Published by the International Detention Coalition
Melbourne, Australia
Recommended citation: Sampson, R., Chew, V., Mitchell, G.,
and Bowring, L. There Are Alternatives: A Handbook forPreventing Unnecessary Immigration Detention (Revised),(Melbourne: International Detention Coalition, 2015).
Design and layout by Haydn Jones Communication Design
The views expressed in this document are thoseof the authors.
This report is available online at http://www.idcoalition.org

Acknowledgements
The revised edition of this Handbook was written by Dr. Robyn Sampson of the
Swinburne Institute for Social Research at Swinburne University of Technology as well
as Vivienne Chew, Grant Mitchell and Lucy Bowring of the International Detention
Coalition (IDC). Research for this revised edition was undertaken by Adele Cubbitt, Elba
Coria Marquez, Gisele Bonnici, Ben Lewis, Jem Stevens, Vanessa Martinez, Leeanne
Torpey, Libby Zerna, Katherine Wright, Caroline Stephens, Athena Rogers, Jocelyne
Cardona, Ahmed Correa, Beth Edgoose, Danielle Grigsby, Shaista Kiran, Thais Pinheiro,
Catherine Stubberfield, Natasha Warchalok and Rosario Rizzo Lara.
The IDC would like to express gratitude to all the interviewees who made time in theirbusy schedules to contribute to this research.
The IDC gratefully acknowledges the financial support of the Open Society Foundation,
Oak Foundation, Ford Foundation, Planet Wheeler Foundation, CAMMINA, and AVINA,
which made this Revised Edition possible.
The first edition of this Handbook was a collaboration with the former La Trobe Refugee
Research Centre of La Trobe University in Melbourne, Australia. The original research
was undertaken by Robyn Sampson as part of her doctoral studies, which were madepossible by a La Trobe University Post Graduate Award. Her work on the revised edition
was made possible by a grant of the Emerging Research Priorities scheme of Swinburne
University of Technology.
We would like to thank the former and current members of the International Detention
Coalition Advisory Group and other IDC members for their support and comments onan earlier draft of this report.

Table of Contents
Preface

I

Executive summaryII

Key findings

1

1.

Introduction

2

2.

The case for alternatives

7

3.

Community Assessment and Placement: Introducing the Revised CAP model

16

4.

Liberty: Presumption against detention

18

Key issue: Ensuring the right to liberty for child migrants

22

5.

Minimum standards

27

6.

Identification and decision-making

35

7.

Case management47

Key issue: Resolving migration status

54

8.

59

Placement options

Key issue: Hosting transit migrants

63

9.

75

Conclusion

Suggested further reading

77

Glossary

78

Appendix A – Research methods

81

Endnotes85

List of Boxes
Box 1.

A presumption of liberty in law - Argentina

19

Box 2.

Alternatives to detention in law - Poland, Croatia and New Zealand20

Box 3.

Prohibiting the detention of vulnerable individuals - China

21

Box 4.

Age assessments23

Box 5.

Ending immigration detention of children - A snapshot of global trends24

Box 6.

Appointment of a guardian26

Box 7.

Unaccompanied children are not to be detained - Hungary

26

Box 8.

Ensuring asylum seekers can meet their basic needs - Spain29

Box 9.

Formal status and documentation - Various countries30

Box 10.

Regular review - Canada and the European Union

34

Box 11.

Screening and assessment in a mixed migration context - Zambia

37

Box 12.

Screening and assessment - the United States39

Box 13.

Prohibiting the detention of vulnerable individuals - Turkey

41

Box 14.

Identifying individuals who do not need to be detained - Hong Kong45

Box 15.

Case management in the migration context - Two case studies51

Box 16.

Intensive case resolution with complex cases - Australia

52

Box 17.

Making plans for life after return - the Netherlands54

Box 18.

Preparing families for independent departure - Belgium

55

Box 19.

Options for those who cannot be deported - Various countries58

Box 20. Protecting victims of trafficking - Europe58

Box 21.

Reception in the community - Sweden

62

Box 22.

Closing detention centres in favour of alternatives - Greece64

Box 23.

Reporting as a monitoring mechanism - Various countries68

Box 24. Supervision during removal proceedings - the United States69

Box 25.

70

Bail as a consequence for non-compliance - Canada

Box 26. Detention release options - Various countries72

Box 27.

74

Detention conditions that respect dignity and well-being - Sweden

List of Figures
Figure 1: The Revised CAP model - Community Assessment and Placement

16

Figure 2: Understanding the population through individual assessment

36

Figure 3: Assessing vulnerability

40

Figure 4: The case management process

49THERE ARE ALTERNATIVES (REVISED EDITION)

PrefaceWhat’s new in the revised edition?
The International Detention Coalition first published There Are Alternatives in 2011. This revised
edition updates and expands the original work using the findings from a new piece of researchand the insights and expertise accrued in the four years since the first Handbook was launched.
Begun in 2013, the new research focused on 20 additional countries. It sought to identify alternatives in a wider range of countries including those experiencing ‘transit’ migration, those hostinglarge populations of refugees, asylum seekers, stateless persons or irregular migrants, and/or
those with limited resources available to manage such populations. Seventy-one participants
were interviewed from government, non-government organisations and international bodies.
This Revised Edition contains a number of additions including:Æ A Revised Community Assessment and Placement (CAP) Model. While the core elementsof the CAP Model remain the same, the model has been redesigned to provide a clearer
indication of overarching principles and standards, and the key processes of identificationand decision-making, case management and placement.

Æ New and updated country case studies based on further research. New additions expand
our knowledge of alternatives in countries experiencing transit migration, large numbers of
irregular migrants and/or those with limited resources available for migration management.

Æ A revised and strengthened definition of ‘alternatives to detention’ which incorporates thebroad range of persons who may be subject to or at risk of detention by virtue of theirimmigration status.

Our approachThis Handbook is written from the perspective that in developing strong migration governancesystems, States should exercise their authority at international borders in line with their humanrights obligations. In particular, they should seek to govern borders in a way that:Æ Treats all asylum seekers, refugees and migrants humanely and in compliance with international and national law

Æ Benefits local populations and minimises national security concernsÆ Achieves case resolution in a timely manner
Æ Ensures cost effectivenessMigration governance objectives cannot be achieved with a rigid control-and-enforcement
approach. A more comprehensive and holistic approach is needed that is tailored to eachcountry’s specific context. This Revised Handbook is designed to assist in this process and tocontribute to current policy debates. The Handbook presents mechanisms that prevent unnecessary detention and manage and resolve cases in a fair, timely and humane manner from acommunity setting. Policy makers and other stakeholders will be able to draw upon our conceptual framework to assess current practice and explore options. Further, the Handbook can act asa resource for stimulating debate in international and regional forums by establishing concepts
and presenting concrete examples for consideration.

ITHERE ARE ALTERNATIVES (REVISED EDITION)

Executive summary
Introduction
This Handbook was written in response to
the growing interest of governments, civilsociety and other stakeholders in finding
reliable, cost-effective and humane waysof managing asylum seekers, refugees andmigrants outside of detention. Immigration
detention is a growing phenomenon as governments strive to regulate unwanted crossborder migration. Detention capacity continues
to expand despite well-established concernsthat it interferes with human rights, harms
health and wellbeing and causes unnecessary human suffering. Further, detention is an
expensive policy that is difficult to implement
and regularly fails to fulfil its objectives.
Over the past five years, the International
Detention Coalition (IDC) has undertaken a
program of research to identify and describe
alternatives to immigration detention (‘alternatives’). This Handbook collates the findingsof this research to offer governments a way ofmoving forward with this difficult area of policy.
The Handbook works to instrumentalise protections enshrined in international law and tostrengthen systems so that:Æ Detention is shown to be legal, necessary
and proportionate in the individual case;Æ Detention is only used as a last resort inexceptional cases;Æ Community options are as effective as
possible.

The case for alternatives
Defining alternatives to detention
The phrase ‘alternatives to immigration
detention (‘alternatives’)’ is not an establishedlegal term nor a prescriptive concept, but afundamentally different way of approaching thegovernance of migration. Alternatives shift theemphasis away from security and restrictions
to a pragmatic and proactive approach focusedon case resolution. An alternative approach
respects asylum seekers, refugees and migrants
as rights holders who can be empowered tocomply with immigration processes without theneed for restrictions or deprivations of liberty.
With this in mind, the IDC defines
alternatives to detention as:
Any law, policy or practice by which
persons are not detained for reasons
relating to their migration status.

The IDC’s approach to alternatives
It is important to note that the IDC considers
that alternatives:

Æ Do not apply only to vulnerable individuals
such as children or refugees

Æ Do not refer only to accommodation
modelsÆ Do not necessarily require the application of
conditions such as bail/reportingÆ Do not refer to alternative forms ofdetention
Further, when we take an international perspective and compare existing migration policy andpractice across different contexts, we find:Æ Most countries do not use detention as thefirst option in the majority of cases;Æ A number of countries rarely resort todetention, if at all.

II

THERE ARE ALTERNATIVES (REVISED EDITION)

Benefits of alternatives
The research has identified several benefits
in restricting the application of detention
and prioritising community-based management options. The key benefits are that:
Alternatives are more affordable thandetention
Alternatives have been shown to be up
to 80% cheaper than detention. In the
majority of cases, detention is significantly
more expensive than alternatives. Alternatives have much lower operation costs thandetention, increase independent departures(compared to deportations) and avoid litigation and compensation claims resulting fromwrongful detention or harmful impacts.
Alternatives are more humane
Alternatives are better placed to uphold therights of asylum seekers, refugees, statelesspersons, irregular migrants and other migrants.
They can avoid the harms of detention, reduce
exposure to overcrowding and long-term
detention, and enable greater access toprograms that support health and welfare.
Effective management in the community isalso more likely to uphold fundamental civil,
political, economic, social and cultural rights,
thereby contributing to improved individual
wellbeing and self-sufficiency. This ensures

asylum seekers, refugees and migrants are
better able to contribute to society if residency
is secured, or better equipped for facing thechallenges of departure from the country.
Alternatives are highly effective
Alternatives can achieve high compliance rates,
achieving up to 95% appearance rates and up
to 69% independent departure rates for refusedcases. Alternatives, particularly those incorporating case management and legal advice,also assist in achieving efficient and sustainableoutcomes by building confidence in the immigration process and reducing unmeritorious
appeals. This can improve final immigration
outcomes, be that integration for individuals
granted status or departure for refused cases.
Common characteristics of successful
alternatives
The research identified common characteristics of successful alternatives and, whereable, established the reasons why thesefactors contributed to positive compliance, case resolution, cost, and health andwellbeing outcomes. Successful alternatives
rely on a range of strategies to keep individuals engaged in immigration procedures
while living in the community. Although suchprograms sometimes make use of residential

A COMPARISON OF DETENTION AND ALTERNATIVES
Detention
Æ Is costly

Alternatives
Æ Cost less than detention

Æ Is harmful to health and wellbeing

Æ Support health and wellbeingÆ Interferes with human rights

Æ Respect and fulfill human rights

Æ Does not encourage participation in caseÆ Strengthen participation in case resolution

resolution processesÆ Is not an effective deterrent
Æ Can contribute to decisions to undertake
secondary movement

Æ Can expose governments to litigation for
unlawful detention and for the impacts ofdetention on healthprocesses

Æ Improve voluntary and independent
departure rates

Æ Can help stabilize vulnerable individuals
in transit

Æ Avoid wrongful detention and reduce
overcrowding and long-term detention

III

THERE ARE ALTERNATIVES (REVISED EDITION)

facilities, the location of the individual is notof primary concern. Instead, the focus is on:Æ Screening and assessing eachindividual case

Æ Providing case management, legal advice
and other mechanisms that support theindividual to work towards case resolution

Æ Ensuring basic needs can be met
Æ Applying conditions or limited restrictions
only where necessary.
The most effective laws, policies and practices
for preventing unnecessary detention
determine (i) whether detention is truly
necessary in an individual case and (ii) how best
to manage and support the individual in thecommunity to achieve case resolution. Theseand other core characteristics are brought
together in the Revised Community Assessment and Placement model (Revised CAP).

Research to date suggests asylum
seekers, refugees and migrants:
Æ Rarely abscond while awaiting
the outcome of a visa application,
status determination or otherimmigration process, if in theirintended destination.

Æ Are better able to comply withrequirements if they can meet theirbasic needs while in the community.

Æ Are more likely to accept andcomply with a negative decisionon their visa application, statusdetermination or other immigration
process if they trust:Æ They have been through a fairand efficient process

Æ They have been informed andsupported through that process

Key elements of successful
alternatives
The IDC’s program of research has identified the main elements of successful
alternatives in terms of cost, complianceand wellbeing outcomes. These include:Æ Using screening and assessment to
tailor management and placement
decisions.
Æ Providing holistic case management
focused on case resolution.
Æ Focusing on early engagement.
Æ Ensuring individuals are wellinformed and trust they have been
through a fair and timely process.
Æ Ensuring fundamental rights arerespected and basic needs are met.
Æ Exploring all options to remain in the
country legally and all avenues forvoluntary or independent departure.
Æ Ensuring any conditions imposed are
not overly onerous.
These lessons are brought together
in the Revised CAP model.

IVÆ They have explored all options toremain in the country legallyÆ Appear less likely to abscond ina country they intend to transit ifthey can meet their basic needs
through legal avenues, are not at
risk of detention or refoulement,
and remain hopeful regarding future
prospects.

Æ Further, while secondary movement
cannot always be prevented,
screening and assessment can
assist in understanding motivating
factors and facilitating registration
with authorities. However, complete
control in all cases is unrealistic.
Solutions for such situations include
proactive preventative mechanismsthat address the root causes ofirregular migration and build astronger international system ofburden sharing.

THERE ARE ALTERNATIVES (REVISED EDITION)

Community Assessment and Placement:
Introducing the Revised CAP model
Using a strengths-based approach, the IDC’s
program of research identified alternatives ina range of countries and incorporated these
into one framework. The Revised Community
Assessment and Placement Model (Revised
CAP model) is a tool for governments, civilsociety and other stakeholders to build
systems that ensure detention is only used
as a last resort and that community options
result in optimal outcomes. The Revised CAP
model combines the overarching principles
of liberty and minimum standards with the
key processes of identification and decisionmaking, placement and case management.

The Revised CAP Model can be used to:Æ Analyse and assess existing laws, policies
and practices in order to identify gaps,
needs, priorities and goals

Æ Obtain ideas about what is possible and,using these, develop, expand or improvealternatives in local contexts

Æ Facilitate dialogue with officials in different
arms of government, between States andacross stakeholders

Æ Guide the decision-making process toensure immigration detention is only used
as a last resort

Æ Train officials, practitioners and stakeholders on how to work towards ending
unnecessary detention and how to develop
and implement alternatives

VTHERE ARE ALTERNATIVES (REVISED EDITION)

Liberty: Presumption against detention
The first overarching principle of alternatives
is the right to liberty including a presumption
against detention. The right to liberty of person
is a fundamental human right, enshrined in all
major international and regional human rights
instruments. It is guaranteed to all persons
irrespective of legal status including refugees,
asylum seekers, undocumented migrants
and stateless persons. The right to liberty of
person imposes a number of specific limitations on States’ ability to detain, includingthat detention is justified by a legitimate Stateobjective, is in accordance with the law, andis not arbitrary. In many countries, a migrant’s
right to liberty is preserved throughout the
migration process. In these countries, immigration officials are prevented from using
confinement when other options suffice.
The right to liberty and a clear presumption against detention are established byadopting laws, policies and practices that:Æ Establish a presumption of liberty
Æ Provide a mandate to apply alternatives in
the first instanceÆ Only permit detention when alternatives
cannot be appliedÆ Prohibit the detention of vulnerable
individuals

Minimum standards include:Æ Respect for fundamental rights

Æ Meeting basic needs
Æ Legal status and documentation
Æ Legal advice and interpretation
Æ Fair and timely case resolution
Æ Regular review of placement decisions
Identification and decision-making
Successful migration governance programs
understand that refugees, asylum seekers,
stateless persons, irregular migrants andother non-citizens without legal status are ahighly diverse population with different needs
and motivations. Differentiating between
these different groups will ensure informed
decisions about management and placement
options. Such decisions can be reviewed andadjusted as needed with regular review.
Through screening and ongoing assessment,
authorities can identify and assess levels ofrisk and vulnerability as well as the strengths
and needs of each person. The research identified several areas of assessment including:Æ Legal obligations
Æ Identity, health and security checks
Æ VulnerabilityÆ Individual case factors
Æ Community context

Minimum standards
The second principle underpinning alternatives is minimum standards. There are a numberof minimum standards which States must
respect and uphold for all individuals, regardless of legal status. These minimum standards
also help to ensure the proper functioning of
migration governance systems and the effectiveness of alternatives. Without minimum
standards in place, alternatives are less likely
to achieve desired rates of compliance, caseresolution and respect for human rights.

VI

Case management, support and resolution
The most successful alternatives use casemanagement across all stages to ensure a coordinated and comprehensive approach to eachcase. Case management centres on understanding and responding to the unique needs
and challenges of the individual and theircontext. Case management builds on an individual’s strengths, identifies vulnerability or protection concerns, and addresses needs as able.
The approach promotes coping and wellbeingby facilitating access to support services
and networks. By ensuring timely access toTHERE ARE ALTERNATIVES (REVISED EDITION)

all relevant information and meeting otherserious needs as able, case management alsobuilds confidence in the immigration process
and promotes informed decision-making byboth the individual and government decisionmaker. Case management can range in intensityfrom limited engagement with self-sufficientmigrants through to intensive support forcomplex cases and/or for return preparation.
Case resolution is not the same as casemanagement, although they often overlap.
Case resolution is focused on finding apermanent or temporary migration outcome.
While this responsibility ultimately sits withimmigration authorities, case management can contribute to timely case resolution by identifying legal, practical and personal
barriers to likely outcomes and working onshared solutions. Case resolution can draw
from a range of solutions including various
visa and departure options. These include,inter alia, regularisation programs, humanitarian or protection visas, other permanent
visas, short-term ‘bridging’ visas, departure
to a third country, return to a different areaof the country of citizenship, and additional
resources to support sustainable return.

Community without conditions
Liberty – or unconditional placement in thecommunity – is the preferred placement option
and is appropriate for the majority of cases.
This includes when there is no legal basis todetain and when such placement will meet aState’s legitimate aim, such as ensuring completion of a legal migration process. Satisfactory
outcomes are often achieved when unconditional placement in the community is supportedwith minimum standards and case management. An individual placed in the community
without conditions may nonetheless be responsible for ensuring their good status and active
participation in the applicable migration
procedure. This might include appearing at
immigration appointments, hearings or interviews, undertaking acts to assist in achievingcase resolution, and respecting standard
visa or residency requirements. The requirement of normal participation in migration
procedures differs from conditions or restrictions on freedom of movement, as the latterare more onerous and impact on a person’s
right to liberty and freedom of movement.

Placement options
There are various placement options available
to the State in managing an individual pendingcase resolution. These include placementin the community without conditions orplacement in the community with such conditions as determined to be necessary andproportionate in the individual case. Immigration detention is included as the measureof last resort to be used in exceptional cases,
provided the standards of necessity, reasonableness and proportionality have been met.

VII

THERE ARE ALTERNATIVES (REVISED EDITION)

Conditions or limited restrictionsin the community
If, following screening and assessment,
serious concerns arise about unconditional
placement in the community, there are a rangeof additional mechanisms that can be introduced to promote ongoing engagement
and compliance with authorities. As conditions invariably involve some restrictions on
an individual’s right to liberty, these must
always be shown to be necessary, reasonable and proportional in the individual case.
Conditions may include the following mechanisms:

Æ MonitoringÆ SupervisionÆ Surety and other consequences for noncompliance
Detention as a last resort
International human rights law and standards
make clear that immigration detention should
be used only as a last resort in exceptional
cases after all other options have been shown
to be inadequate in the individual case. The
use of confinement with people in an administrative procedure is highly controversial due toits negative impact on health, wellbeing andhuman rights. Detention should be avoided
entirely for vulnerable individuals and be inaccordance with international, regional andnational law and standards. This includes therequirement that the standards of necessity,
reasonableness and proportionality havebeen met in the individual case. Notwithstanding these serious concerns, detention is
included here to be used only as a last resort
for exceptional cases after a comprehensive process has determined before an independent judicial authority that all other options
will not address the identified concerns.

VIII

Detailed information on areas of detention
that require vigilance and oversight to avoid
arbitrary and excessively harmful detention
are available elsewhere. 2 The broad areasof concern include detention and immigration procedures; treatment and safeguards;
safety, order and discipline; material conditions; activities; health care; personnel/staffing;and persons in situations of risk/vulnerability.

Conclusion
Dealing with irregular migration is an everyday
area of governance. As the Revised Handbook
shows, with effective laws and policies, clear
systems and good implementation, asylum
seekers, refugees and migrants can be
managed in the community in most instances.
Screening and assessing the cases of individuals subject to, or at risk of, detention enables
authorities to identify needs and introduce
appropriate supports and, as needed, conditions in the community. Through theseapproaches, authorities can manage people inthe community in the majority of cases without
the financial and human cost that detention
incurs. The Revised Handbook shows costeffective, reliable and humane alternatives are employed in a variety of settings
to the benefit of a range of stakeholders
affected by this challenging area of policy.

THERE ARE ALTERNATIVES (REVISED EDITION)

Key findingsInternational human rights laws and standards make clear that immigration detention should be used only as a last resort in exceptional cases
after all other options have been shown to be inadequate in the individual case. This Handbook provides readers with the guidance needed
to successfully avoid unnecessary detention and to ensure community
options are as effective as possible. This edition presents the Revised
Community Assessment and Placement model (Revised CAP model)
alongside new and updated country examples. While the basic elementsof the original CAP model remain the same, the revised model separates
the overarching principles from the bureaucratic processes involved.

There are alternatives

Alternatives are more affordable

There is a range of alternatives to detention
that governments can draw upon to reduce
unnecessary detention and increase thesuccess of community-based management. Many solutions exist. In fact, the IDC
has identified more than 250 examples inover 60 countries. This includes countries
with large numbers of asylum seekers,
refugees and migrants and fewer resources.

Alternatives are up to 80% cheaper
than detention due to lower runningcosts. They also eliminate costly litigation and compensation claims.

Alternatives can be appliedin the majority of cases
Detention is rarely necessary while working
with asylum seekers, refugees and migrants
towards satisfactory case resolution.
Placement options range from open accommodation in the community with minimal
requirements for low-risk groups throughto intensive supervision and case management for populations of highest concern,such as non-citizens facing deportation after completing a prison sentence.

Alternatives are more humane
Alternatives are less harmful than detention.
Community placement supports health andwellbeing and upholds human rights. Alternatives are not only more humane, but also
see asylum seekers, refugees and migrants
better placed to move forward with theirlife once their migration status is resolved,
whether it be integration or departure.

Alternatives are highly effective
Alternatives achieve effective case resolution outcomes. Alternatives have beenshown to achieve up to 95% appearance
rates and up to 69% voluntary and independent return rates for refused cases.

1

THERE ARE ALTERNATIVES (REVISED EDITION)

1. Introduction
1.1 Governing migration
The governance of migration is evolving in
response to changes in the patterns andmake-up of migrant populations. The numberof migrants crossing national borders has
increased over recent decades. 3 It is well documented that migration is associated with arange of social and economic benefits fordestination countries as well as for those who
migrate. 4 Governments have recognised thesebenefits by developing avenues to enable legal
migration for a variety of purposes including
employment, education, family reunion andtourism. Regular migration flows throughthese legal avenues far outweigh irregularmovement. 5 However, significant migration
does occur outside of legal channels. In 2010,
the International Organisation for Migration(IOM) estimated 10-15% of the world’s 214
million migrants were undocumented, themajority of whom had become irregularafter first travelling via legal avenues. 6
The regulation of migration is a core functionof modern governments, resulting in arange of systems to govern the movementof foreigners on a nation’s territory. Despite
the success of many of these systems inmanaging large movements of people well,some people have come to believe migration
is out-of-control. Such perceptions are often
linked to concerns about national security
and crime, job availability, and the erosionof cultural identity and traditions.7 In thesesituations, irregular migration can becomea point of contention and political debate,making the regulation of migration a challenging and sensitive area of policy.
Although managing migration is a constantly
changing and complex task, it is an everyday
phenomenon and a normal part of operating
a government. All countries are facing the2dilemma of monitoring legal migration
programs and managing irregular migrants
while also ensuring protection is available
for asylum seekers, refugees, statelesspersons and vulnerable individuals.

1.2 The use of detention in
migration governance
The use of immigration detention has been
growing over the last twenty years as
governments strive to control borders. 8 In
some countries, concerns about national
security and terrorist attacks have justified
the expansion of detention. 9 Whatever
the cause, many countries have intensified efforts to reduce the number of asylum
seekers, refugees and irregular migrants on
their territory.10 Detention has become a coreelement of this trend. Previously, detention
was restricted to short periods during deportation. Now, it is used by several countries
on-arrival or for the duration of claims
processing. Increasingly, destination countries
are investing in the capacity of neighbouringtransit countries to intercept and detain
foreigners on the move.11 This ‘externalization’of border control is evident in the European
Union, which has been investing significantlyin the capacity of its neighbours including
Ukraine, Libya and Turkey to detect, detain anddeter asylum seekers, refugees and migrants
who are planning irregular onward travel toEurope.12 Similar dynamics can be seen in thepolitical and financial investments made by
the United Sates in the detention capacities
of Guatemala and Mexico, and by Australia
in Indonesia, Nauru and Papua New Guinea.13
As a result of such trends, it is estimated that
hundreds of thousands of people are detained
around the world, although the number ofdetainees at any one time is unknown.14

THERE ARE ALTERNATIVES (REVISED EDITION)

1.3 Concerns regarding
immigration detention
Immigration detention is used by governments as both a migration governance tool
and as a political tool.15 As a tool for managing
irregular migration, it is used to limit theentry of irregular migrants to the territory; foridentity, health and security checks and otherscreening processes; to hold individuals withno valid visa while their status is assessed;
and to ensure compliance with negative visa
application outcomes, namely deportation.
Detention is also sometimes used by governments in an attempt to address broader socialand political issues, such as deterring futureasylum seekers and irregular migrants, toprovide a sense of control over borders for
citizens, and to respond to political pressure.16
In this sense, detention is a symbolic act
used to convey a message to a range of
people who are not being detained themselves. While these are important and complex
issues impacting governments, there areserious concerns about the use of detention
for these purposes. The use of detention
for these reasons is unsupportable given:Æ Detention is not an effective deterrent
Æ Detention does not support caseresolution, including departure or
integration

Æ Detention has been shown to harm healthand wellbeing

Æ Detention interferes with human rights
Æ Detention is expensive
1.3.1 Detention is not an effective deterrent
There is no empirical evidence to suggestthat the threat of being detained deters
irregular migration.17 Rather, existing evidence,and government and judicial statements18
suggest a policy of detention is neither
effective nor reasonable in deterring refugees
and irregular migrants. Despite increasingly tough detention policies being intro-

duced over the past 20 years, the numberof irregular arrivals has not reduced.19

There is no empiricalevidence to suggestthat the threat of being
detained deters irregularmigration
Several studies have been undertaken to
establish which factors most impact the choiceof destination of asylum seekers and irregularmigrants. 20 According to this research, theprincipal aim of asylum seekers and refugees
is to reach a place of safety. 21 Most asylum
seekers have very limited understanding of
the migration policies of destination countries
before arrival and are often reliant on people
smugglers to choose their destination. 22 Those
who are aware of the prospect of detention
before arrival believe it is an unavoidable partof the journey, that they will still be treatedhumanely despite being detained, and that it
is a legitimate right of States if undertaken for
identity and health checks. 23 Rather than being
influenced primarily by immigration policies
such as detention, most refugees choose destinations where they will be reunited with family
or friends; where they believe they will be in asafe, tolerant and democratic society; where
there are historical links between their country
and the destination country; where they canalready speak the language of the destination country; or where they believe they will beable to find secure work quickly due to generallevels of prosperity. 24 One study also foundthat the majority of refugees who had experienced detention did not pass on a message
of deterrence to people overseas as the relief
of escaping persecution and reaching a placeof safety overrode the trauma and sense of
rejection they had experienced as a result ofdetention. 25 This evidence shows detention
has little impact on destination choices.

3

THERE ARE ALTERNATIVES (REVISED EDITION)

1.3.2 Detention does not support
case resolution
Immigration detention can be ineffective andcounterproductive at ensuring compliance withimmigration processes. Immigration detention
can negatively impact case resolution because
the risk of detention and deportation will often
deter people from engaging with authorities in the first place. Further, the mental andphysical harms caused by detention impact
an individual’s ability to comply with immigration processes. Immigration detention isusually experienced as an extreme injustice, asdetainees feel they are treated like criminals
despite believing they are innocent of any
crime. 26 This feeling of injustice can saturate
their experience of the assessment process
and lead them to believe that their casehas not been fairly heard. This can make it
difficult to work towards return for those
who have been found not to have protectionneeds. Deportation can be extremely difficult
to achieve if the person does not want tocomply, even with detained populations. 27

health and energy levels. 29 This can reduce
their ability to organize administrative issues, such as sourcing documents
to prove their identity, or to access legal
advice regarding future prospects.

Impact of detention on departure
In relation to departure, detention also fails toguarantee departure outcomes for persons
with no right to remain in the country. Many
factors influence a person’s willingness toreturn to their country of origin, most ofwhich fall outside the influence of domestic
policies. 30 Detention does not easily overcome
these broader issues to result in return
decisions. 31 In terms of deportation, there
is a gap between the number of migrants
detained for deportation purposes, and thenumber of those who are actually deported. 32
This is because deportation is a complex
process involving multiple countries, agencies,and companies. People who are statelessare most likely to stagnate in detention forlong periods with little to no control over theblockades preventing their deportation. 33

Impact of detention on case resolution
Detainees are often held in detention during
an administrative process associated with theirmigration status. This may include (initial)assessment of their protection claims, assessment of reasons to remain in the country,
and preparation for departure from thecountry. Detention does not, in and of itself,
contribute to the resolution of these administrative issues. As one study on the Netherlands shows, detention does not change
the intentions of detainees to either stay orleave the country; however, if a detainee wasalready predisposed to depart the country,
detention will sharpen this intention. 28
Moreover, detention can reduce the abilityof detainees to contribute to case resolution processes by reducing their accessto the outside world and eroding mental

4

Research in the United Kingdom has
shown indefinite detention does not usuallylead to deportation; instead, if deportation has not been achieved within
one year, it is unlikely to occur. 34 Further,migrants who are facing punitive restrictions such as detention are more likely tofeel they have nothing to lose and seek
unlawful avenues to stay in the country. 35

Impact of detention on integration
With respect to integration, a significant
proportion of detained migrants are released
with temporary or permanent residency,
taking their experience of detention withthem as they re-enter society. Immigration
detention affects integration upon releasein a range of ways. Detention has significant impacts on mental health and senseTHERE ARE ALTERNATIVES (REVISED EDITION)

of self that subsequently affect integration. 36 These are discussed further below.
These affect a person’s ability to live satisfying and productive lives and to develop
trusting relationships. Work, study, family andfriendships are all affected. Concentration andmemory are also affected by long periods in
detention, subsequently impacting language
acquisition and work or study outcomes. 37

1.3.3 Detention has been shown toharm health and wellbeing
Another major concern is that the potential
impact of detention on the health of thosedetained is so severe that its use as a message
of deterrence and control cannot be justified.
This is similarly the case with the use ofdetention as a blanket response to groupsof migrants in particular circumstances.
Research has demonstrated that being indetention is associated with poor mental
health including high levels of depression,anxiety and Post-Traumatic Stress Disorder(PTSD) 38 and poor quality of life. 39 One study
found clinically significant symptoms ofdepression were present in 86% of detainees,
anxiety in 77%, and PTSD in 50%, withapproximately one quarter reporting suicidal
thoughts. 40 Further, mental health deteriorates
the longer someone is detained. 41 The impact
on children is particularly disturbing, especially as the consequences for their cognitiveand emotional development may be lifelong. 42 For adults, it has been found that the
debilitating impacts of detention extend wellbeyond the period of confinement, especiallyfor those detained for prolonged periods. 43
Options that do not rely on confinement are all
the more important in light of this evidence.
Impacts such as these not only affectthe life experiences of former detainees;
they also create a greater burden on thereceiving society. For example, mental
health impairment increases reliance on
health care and, potentially, social welfare
systems. The lifetime health costs of longterm detention have been estimated at anadditional AUD $25,000 per person. 44

1.3.4 Detention interferes with human rights
The use of detention for the purposes ofdeterrence or political gain is inconsistent
with international human rights law. Humanrights law establishes the right to liberty andprotection from arbitrary detention. 45 Further,detainees are at greater risk of human rights
abuses due to their placement in an institution of confinement. As detention interferes with an individual’s human rights, it
must be applied only in those circumstances
outlined in law; in proportion to the objectives underlying the reason for the detention;
when necessary in that particular case; andapplied without discrimination. 46 Less restrictive measures must be shown to be inadequate
before detention can be applied. As such,detention must be shown to be necessary ineach individual case rather than being applied
en masse. The Handbook works to instrumentalise the protections enshrined in international law by identifying the ways in whichgovernments can ensure detention is only
ever applied as an exceptional measure.

1.3.5 Detention is expensive
Immigration detention is an incredibly
expensive policy to maintain, due to thecapital costs incurred with building detention
infrastructure and the costs of personnel
required to operate an institution. This issignificantly more expensive than community-based management programs. The
cost savings are detailed in the Section 2.4.2
on Cost Benefits later in the Handbook.

5

THERE ARE ALTERNATIVES (REVISED EDITION)

Detention is a highly problematic policy forgovernments. It fails to fulfil the aim of deterrence, is counterproductive to case resolution, causes serious harm and suffering for
those detained, often fails to fulfil rights andis an overly expensive option in light of thealternatives. The issues of political authorityand public sentiment that sometimes arise
in relation to irregular migration are best
addressed without recourse to detention.
Strong leadership and confidence in the effectiveness of migration policy and its implementation can counteract some of these concerns.

following regions: the Americas; Asia-Pacific;
Europe; the Middle East and North Africa;and South and East Africa. The selection
strategy was designed to include a variety ofStates experiencing transit migration; large
numbers of refugees, asylum seekers, statelesspersons or irregular migrants; and/or thosewith limited resources available to manage
such populations. Data collection involved aliterature review for each country and region;
in-depth interviews with 71 participants from18 countries, either in person or by Skype; andinternational fieldwork, conducted by Adele
Cubbitt, in Turkey, Indonesia, and Mexico.

1.4 Our program of researchon alternatives

An additional piece of research on detention
and alternatives in Mexico was undertakenby the IDC Americas office in 2012. That
study involved field research and interviews with 32 participants from government and from local, regional and international non-government organisations.

This Revised Handbook draws from the
IDC’s program of research on alternatives and from the expert knowledge of IDC
secretariat staff and members developed
during their engagement with governments over the past five years. An overview
of these sources of information is provided
here. A detailed description of the researchmethods is provided in Appendix I.
The First Edition of the Handbook,published in 2011, came out of a study
conducted in 2009/2010. Data collection
for that study included a detailed literature review; an Internet-based survey; andinternational fieldwork in nine countries,
conducted by Dr Robyn Sampson. The
field work consisted of in-depth interviews
with 57 participants and eight site visits.
A second study begun in 2013 to extend theresearch and to test the findings of the firststudy against a wider range of settings. The
second study aimed to identify and describe
alternatives in 20 additional countries. Fourcountries were selected from each of the6

Finally, the IDC secretariat staff andmember groups have developed a significant body of expert knowledge on alternatives. IDC staff and members have run and/or attended a series of major international,
regional and national roundtables and consultations on alternatives that have elicited
valuable information and insights that haveinformed the revision of this Handbook.

THERE ARE ALTERNATIVES (REVISED EDITION)

2. The casefor alternatives
2.1 Alternatives to detention defined
The term ‘alternatives to immigration
detention’ (‘alternatives’) does not havean established legal definition, nor is it aprescriptive concept. As a relatively recent
term, it is not defined in the same way
by all stakeholders. 47 Some stakeholders,like the IDC, maintain an expansive definition that incorporates a range of options
available to a State to avoid detention. Other
stakeholders limit the definition of alternatives to conditions, such as reporting,or to specific accommodation models.
The IDC’s program of research reinforces
the benefits of an expansive definition ofalternatives. The IDC defines alternatives toimmigration detention (‘alternatives’) as:
Any law, policy or practice by which
persons are not detained for reasons
relating to their migration status.
This definition strengthens and clarifies thedefinition put forward in the first edition of
the Handbook. The language is simplified anda wider range of people at risk of immigration detention is encompassed. In line with thisdefinition, this Handbook focuses on engagement, rather than enforcement, as the best
approach for developing effective and humane
systems for governing migration. It respects
asylum seekers, refugees and migrants asrights holders who can be empowered towork towards case resolution without theneed for unnecessary restrictions or deprivations of liberty or freedom of movement.
A more restrictive approach to alternatives
is often concerned with control rather thanengagement and collaboratively working

toward case resolution. More specifically, narrower definitions may overlook thestrengths of the existing range of everyday
policies or practices used to support andmanage people in the community. For
example, a majority of countries in SouthAmerica and the European Union do notnormally detain asylum seekers on arrival.
Instead, they protect and support them inopen reception centres in the community
while their claims for protection are processed.
These open reception centres are not generally
viewed by those States as an alternative todetention, as they do not generally detain
asylum seekers. However, if applied in othercountries or applied in that country with adifferent group of migrants then it would
be considered an alternative to detention.
Similarly, several countries only use detention
as an exceptional measure in a small numberof cases and/or for short periods. Their system
ensures most people remain in the community
with freedom of movement. Rather than identifying those people in detention who are
eligible for an alternative, these countries
only use detention as the last resort. Theirearlier options are not seen as ‘alternatives todetention,’ as detention has not been contemplated. However, they could be an alternativefor other States that do detain those people.
Failing to include such policies and practices
in this Handbook would unnecessarily limit
insights into the most effective models for
reducing the use of detention and restrictions on liberty in the first place. A broadconceptual and practical approach to alternatives allows for wide-ranging discussions
and increases understanding of those policies
that reduce the need for detention and otherrestrictions. By adopting this approach, we
hope to stimulate discussions about whether
people currently in detention really need tobe there, and whether existing systems for
managing people outside of detention can

7

THERE ARE ALTERNATIVES (REVISED EDITION)

be translated into a program of response
for those groups currently detained.
In this Handbook we use the term ‘migrant’ torefer to the broad range of non-citizens who
may be at risk of detention worldwide. Thiscan include, inter alia, stateless persons, trafficking victims, labour migrants, visa overstayers and irregular migrants. We use thisterm because detention is applied to a wide
range of individuals without migration statusacross the world. The breadth of the term
‘migrant’ further highlights the importance ofscreening and assessment to understand thevulnerabilities and risks in each individual case.

2.2 The IDC’s approach to alternatives
It is important to note that the IDC
considers that alternatives:

Æ Do not apply only to vulnerable individuals
such as children or refugees

Æ Do not refer only to accommodation
modelsÆ Do not require the application of
conditions, such as bail/reportingÆ Do not refer to alternative forms ofdetention
Such views can contribute to concerns that
implementing alternatives is an overwhelming
task that requires substantial investment in
new resources; that alternatives encourageor require restrictions on liberty; and that
discussing alternatives normalises detention.
Alternatives do not need to be anything morethan what already happens to people in thecommunity: any community measure is or canbe considered an alternative. Where effective
community measures are operating, the key
is to ensure all migrants – including refugees,
asylum seekers, stateless persons and irregularmigrants – are integrated into such programs.
It is also important to draw a clear distinction
between alternatives, and alternative forms

8of detention. Some forms of management
substantially curtail or completely deny liberty
and freedom of movement. This includes some
types of electronic monitoring, strict curfews
and other movement controls. Whether thisis an intended or unintended outcome, these
are regarded in this Handbook as a form ofdetention and as such are included in Section
8.3 Detention as a last resort, with review.

2.3 What do we already know
about alternatives?
Despite the growing use of detention globally,
recent years have also witnessed a growing
momentum around exploring and implementing alternatives. 48 Research has graduallydeveloped to respond to government interest
in more detailed information about alternatives and the relative effectiveness of different
strategies. However, the large proportionof existing studies have focused on alternatives for asylum seekers, 49 thereby excluding
major groups of migrants currently detained.
Some consideration has been given to interpreting international human rights frameworks that provide a mandate for alternatives. 50 However, systematic assessment of
national programs is minimal, 51 with evaluations by government generally restricted toassessments of pilot programs. 52 While nongovernment organisations have stepped in to
bridge this gap when able, 53 the lack of accessto government statistics has resulted in smaller
studies. The lack of initiative or disclosure bygovernments in evaluating their migration
governance programs has restricted productive dialogue, as the effectiveness of alternatives in different contexts and in terms ofdifferent objectives is not always known.
Notwithstanding the growing use of detention
in relation to migration matters, an overview
of existing policy and practice at the international level highlights that there are extensive
systems in operation designed to work withasylum seekers, refugees and migrants in a

THERE ARE ALTERNATIVES (REVISED EDITION)

community setting while a migration issue
is being resolved. By maintaining a broad
approach to alternatives we find that:are several benefits in restricting the application of detention and prioritising communitybased management options. Alternatives:

Æ Most countries do not use detention as theÆ Improve compliance with immigration andfirst option in the majority of cases.

Æ A number of countries rarely resort todetention, if at all.

Æ Countries are increasingly developing andimplementing alternatives.
Most countries do not rely primarily on
detention to manage asylum seekers, refugees
and migrants while resolving their migration
matter. For instance, a large proportion ofirregular migrants in many countries are
tourists or short-term visitors who overstay
their visa. 54 These people are rarely detained
but rather provided with avenues to resolve
their situation via independent departureor application for another visa or migration
status. Further, in countries with large
numbers of mixed migrants and migrants
intending to transit, the vast majority wereat risk of detention, rather than actually
being detained. This was most evident incountries where there were high numbers of
irregular migrants, and where it was recognised that the cost of detention and thenumber of migrants who might be detained
are just too great. Despite a growing relianceon detention, most countries still do not use
detention as the first option in the majorityof cases. In fact, a number of countries
rarely resort to immigration detention, if
at all. 55 This is important to acknowledge
and draw on as a source of expertise thatmight be applied with other migrants.

2.4 Benefits of alternatives
The IDC’s program of research has focusedon policies and programs that reduce the useof detention, while keeping in mind costs,
compliance rates, effective and timely caseresolution, as well as a concern to upholdhealth, wellbeing and human rights. Therecase resolution processes

Æ Cost less than detention
Æ Reduce wrongful detention and litigation
Æ Reduce overcrowding and long-term
detention

Æ Increase voluntary or independent
departure rates

Æ Respect, protect and fulfill human rights
Æ Can help stabilise vulnerable individuals intransitÆ Improve integration outcomes forapproved cases

Æ Improve individual health and wellbeing
Æ Improve local infrastructure and othermigrant support systems
Although there is no consistent data available
on each of these outcomes, informationcollected during the program of research
and from existing studies has been included
throughout the Handbook as able. In particular,
the research focused on compliance and caseresolution, cost, and health and wellbeing.
These are discussed in more detail below.

2.4.1 Compliance and case resolution
Research shows that most people usually do
the right thing and follow the rules most of thetime. 56 This tendency to comply with a legitimate authority with minimal intervention holds
true for non-citizens in relation to migration
laws. 57 Indeed, one comparative study of
asylum seekers in Canada and Switzerland
found four motivational factors contributeto compliance: 1) the refugee predicamentand fear of removal; 2) law-abidingness andcommitment to obey the law; 3) trust in the
refugee determination process and perceptions of fairness in the host country; and 4)
a desire to avoid irregular residence, with

9

THERE ARE ALTERNATIVES (REVISED EDITION)

attendant hardship and vulnerability. 58 Alternatives that build trust in the fairness of theimmigration process can promote compliance as well as more efficient and sustainable immigration decisions. In turn, this canimprove final outcomes whether this is integration for those granted status or independent departure for refused cases.
The data on rates of compliance support thesegeneral claims. The available data are mostsubstantive for those still awaiting a final visa
or status decision in their preferred destination:

Æ One study collating evidence from 13
programs found compliance rates among
asylum seekers awaiting a final outcome
ranged between 80-99.9%. 59

Æ In the United States, migrants in the ISAP
community supervision program appearedat scheduled court hearings 99% of thetime and at removal hearings 95% of thetime. 60

Æ In Canada, a supervision program witha mixed group of high-risk detainees
maintained a 96.35% retention rate in the
2009-2010 financial year61 and a 94.31%
retention rate in the 2013-2014 financial
year. 62

Æ In Australia, a case management pilot
with vulnerable migrants recorded a 94%
compliance rate over a three year period. 63
Meanwhile, migrants issued with bridging
visas maintained a compliance rate of
approximately 90% in 2009-2010. 64

Æ In the United Kingdom, people released
from immigration detention on temporary
admission, temporary release or bail had
a compliance rate of 90.8% in 2013, and91.9% between January and September
2014. 65
For those not in their preferred destination,
it appears community placement can also
be effective in many cases if the individual
can meet their basic needs, remain hopeful10

about future possibilities and is not at riskof detention or deportation. For example:

Æ Hong Kong maintains a 97% compliance
rate with asylum seekers and torture
claimants, despite the disincentive thatthose with successful claims are notallowed permanent residency status (seeBox 14 Hong Kong).

Æ In Indonesia, shelters for unaccompanied refugee and asylum seeking children
have seen very low absconding rates of
14% in 2013, and 6% in 2014. 66 Children aresupported in these shelters while awaiting
confirmation of refugee status fromUNHCR Indonesia and a durable solution.

Æ In Thailand, an NGO-run program provides
financial assistance and a caseworker
for unaccompanied refugee and asylum
seeking children in the community. Where
needed, children are referred to health,psychosocial and legal services. Althoughrelatively recently established, the program
has seen very low absconding rates of
3%, with only 6 out of 186 children having
absconded between September 2014
to May 2015. Of these, most absconded
immediately after registration, before acaseworker had been assigned and prior to
any assistance being provided to them.
In addition, solid compliance and departure
rates can be achieved with groups who
are required to depart the country.

Æ In the United States, migrants in removal
proceedings who are in a supervision
program comply with removal orders 84%
of the time, compared with only 13% for
those without support or supervision. 67
This supervision program is built on
the back of a pilot project in the late
1990s which almost doubled the rate ofcompliance with final orders: 69% of participants in intensive supervision compliedwith a final order compared with 38% of
the comparison group released on bond orparole (Box 24).

THERE ARE ALTERNATIVES (REVISED EDITION)

Æ In Australia, a case management pilot
with vulnerable migrants achieved a
93% compliance rate. In addition, 60% of
those not granted a visa to remain in the
country departed independently despite
long periods in the country and significant
barriers to their return (Box 16).

Æ In Sweden, a caseworker system withasylum seekers has been highly successfully in achieving effective case resolution.
The vast majority of persons required toleave the country depart without the needfor detention and deportation procedures.
In 2012, 68% of third country nationals
ordered to leave the country departed
voluntarily or through an Assisted
Voluntary Return program. 68 In 2011, theequivalent figure was 63% (Box 21).

Avoiding unnecessary cases of detention
and reducing the length of time someone
is detained are key strategies for reducing
the costs associated with detention.
Community management programs
described in this report were much lessexpensive than detention to operate ona day-to-day basis. Table 1 provides asnapshot comparison of the cost of alternatives compared to detention in several
countries. Further, an independent study
found that the United States could save over
$1.44 billion of its $2 billion detention budget
by detaining only noncitizens with serious
crimes and otherwise using alternatives.71
Table 1 Comparing the cost of detention
and alternatives

Æ In Belgium, an evaluation of family units
revealed that since the inception of the
project, the vast majority of families (70%
to 80%) stayed engaged in immigration
processes, with high rates of voluntary
return and relatively low rates ofabsconding (Box 18).
These figures demonstrate the ability ofcommunity management programs tosustain significant levels of compliance witha range of populations. It should also be
stressed that compliance is with immigration processes and not with the alternative
per se. Not all alternatives require ongoingengagement or are linked to immigration
processing. Indeed, migrants are more likely
to cease complying with alternatives forpractical and personal reasons, such as thecost of travel to fulfil reporting requirements
or lack of information about the process. 69

2.4.2 Cost benefits
Significant cost benefits are also achievedby prioritising alternatives.70 If cases can be
managed in community settings without
a reduction in immigration processing
times, cost savings will be inevitable.

Country

Cost of
Detention

Cost of
Alternative(per person
per day)(per person
per day)

AU$8.8073

Australia

AU$65572

Austria¤12075¤17 to ¤2476

Belgium¤180- ¤19077¤90 to ¤12078

Canada

CA$17979

CA$10-1280

Hong Kongn/a

HK$108 81

Indonesian/a

US$8 82

US$158 83

US$10.55 84

UnitedStatesto AU$3874

More efficient systems can also reduce theoverall cost of operations. Assisted voluntary
departures cost less than escorted deportations: in the European Union independent
departure to another country within the EU
costs ¤ 300-600 compared with up to ¤1,500
for escorted deportations. 85 Forced removal
has been estimated to cost ten times more

11

THERE ARE ALTERNATIVES (REVISED EDITION)

than independent departure in the United
Kingdom at £1,100 compared with £11,000. 86
Similarly, the Australian government reported
that the ‘non-common’ costs of an assisted
independent return from the community
are approximately one third of those of a
‘locate, detain and remove’ case: approximately $1,500 compared with $5,000. 87 Finally,
preventing or reducing cases of wrongfulor arbitrary detention avoids costly litigation. The United Kingdom paid out over £2million over the three years to 112 individuals for wrongful detention. 88 Meanwhile,
the Australian government paid out over
AU$16 million in compensation to former
detainees over a ten year period. 89 Finally,
Australian research has found that the lifetime
additional health costs of the trauma of
detention to be AU$25,000 per person. 90

2.4.3 Protecting health and wellbeing
Protecting health and wellbeing is the third
factor used to assess the success of alternatives. As detailed in Section 1.3.3, detention
erodes health and wellbeing and this effectintensifies over time. It is well established thatthe health and wellbeing of people who aredetained, or have previously been detained,
is significantly poorer than comparative
groups who have never been in detention. 91
Damaging experiences particular to detention
include confinement, an overwhelming senseof injustice, broken relationships and isolationfrom society. 92 The impact of detention
on the cognitive and emotional development of children is even more significant due
to the long-term impacts on their lives.
Community assessment and placement
promotes better health and wellbeing
outcomes when compared with immigration detention. All people awaiting an immigration outcome experience stress andanxiety, 93 and placement in the community
placement does not take away this uncertainty.
However, as one study shows, placement12in the community assists “in improving thewellbeing of [migrants] when comparedwith … detention and does not exacerbate
existing trauma.”94 Further, former detainees
reported that community placement was lessharmful due to several factors including amore ‘natural’ environment; not having to live
in close quarters with people who are angry
or distressed; freedom to have privacy andtime to oneself; and freedom to make choices
about daily life, including what to eat andwhen, who to visit and how time is spent. 95
As one mother stated, “in detention our son
was bored, he didn’t play with the other kids,
he cried, he just said, ‘I want to get out’. But
here he is doing much better. It has made abig difference being in the community.”96
Appropriate management in thecommunity is more likely to uphold humanrights and support wellbeing, ensuring
people can contribute fully to society
if residency is secured or better able toface difficult futures such as return. 97

2.5 Common characteristics of
successful alternatives
The IDC’s program of research has foundthat the most significant and effective strategies for preventing unnecessary detention arethose that determine (i) whether detention istruly necessary in the individual case, and (ii)
how that individual would best be supported
to achieve case resolution while located in acommunity setting. A range of strategies keep
individuals engaged in immigration procedures while living in the community. Thisapproach to alternatives means the locationof the individual is not of primary concern.
Instead, the focus is on breaking down the
population with screening and assessmentand ensuring the community setting contains
the necessary support mechanisms and structures that will best enable the individual towork with authorities towards case resolution.

THERE ARE ALTERNATIVES (REVISED EDITION)

2.5.1 Elements of successful alternatives
The IDC’s program of research has identified the main elements of successful alternatives in terms of cost, compliance andwellbeing outcomes. These include:Æ Using screening and assessment to tailor
management and placement decisions

Æ Providing holistic case management
focused on case resolution

their education visa; and migrants who havecommitted a crime and are facing deportation. In addition, recognised refugees crossing
borders without papers and undocumented
asylum seekers awaiting a refugee determination face risks of detention or refoulement despite the international obligations
owing to them. Identifying and distinguishingthese different populations ensures authorities respond appropriately and effectively.

Æ Focusing on early engagement
Æ Ensuring individuals are well-informed andtrust they have been through a fair andtimely process

Æ Ensuring fundamental rights are respected
and basic needs are met

Æ Exploring all options to remain in the
country legally and all avenues forvoluntary or independent departureÆ Ensuring any conditions imposed are notoverly onerous
These lessons are brought together
in the Revised CAP model.

2.5.2 Understanding the population throughscreening and ongoing assessment
Successful alternatives approach migrants as ahighly diverse population with different needs
and motivations. 98 This is well established in
the concept of ‘mixed migration’ that informs
strategies to manage migrants at the point ofentry. 99 Those currently at risk of detention
worldwide include, inter alia, refugees; asylum
seekers; persons who cannot be returned totheir country of origin due to a recent natural
disaster, violent conflict or lack of cooperation of their own government; individuals
who have been working ‘illegally’ as a resultof being trafficked into prostitution; tourists
who have overstayed a short-term visitor’svisa; stateless persons who are not eligible
for a substantive visa but who are unable toreturn to their country of birth; international
students who have breached a condition of

The following key findings are particularly
relevant to understanding the differencesamong migrant populations:Æ Individuals rarely abscond while awaiting
the outcome of a visa application, statusdetermination or other immigration process,if in their destination country. 100 As shown in
Section 2.4.1, a majority of migrants want toremain engaged with authorities in order tosecure the best outcome for their migration
case. This reinforces the conclusions ofprevious research that “…asylum seekers whoreach their ‘destination’ country are unlikely toabscond because they have a vested interestin remaining in the territory and in complying
with the asylum procedure.”101 Such a
conclusion is also implicit in the extraordinarylengths people go to in order to reach theirdestination and in the difficulties destination
governments face in achieving deportationand sustainable repatriation.102

Æ Individuals are better able to remain
in compliance if they can meet their basic
needs while in the community. 103 Individuals
living in stable accommodation appear to be
in a better position to remain in contact withauthorities and handle the complexities ofimmigration procedures than those who had
become impoverished or homeless.104 Policies
that restrict access to housing, basic welfare
or health care have not been associated withincreased rates of independent departure or
deterrence outcomes.105 Instead, these policies
have been associated with poorer health, with

13

THERE ARE ALTERNATIVES (REVISED EDITION)

serious consequences for authorities working
towards case resolution including return.106
However, case management programs thatwork with clients to meet their basic needs
have been associated with higher rates ofvoluntary or independent departure or othercase resolution.

Æ Individuals are more likely to accept andcomply with a negative decision on their visa
application, status determination or otherimmigration process if they believe they havebeen through a fair and efficient process;they have been informed and supported
through that process; and they have explored
all options to remain in the country legally. 107
Community management programs are foundto sustain significant levels of compliancewith a range of populations. For example,
a return preparation program in Belgium(Box 18) ensures clients review all options
to remain in the country legally to achievestrong compliance and departure outcomes.
Conversely, a family return pilot project thatwas unable to achieve its aims due to an
overwhelming feeling of injustice and lackof confidence in the immigration process:“families within the project [felt] that they werepoorly, if not unfairly, treated within the asylum
procedure and [were] not therefore willing toengage in discussion about return, but [were]rather looking for other ways to remain.”108
Æ While the issue of transit continues tobe of concern to many governments, there isevidence that individuals appear less likely toabscond in a country of ‘transit’ if they canmeet their basic needs through legal avenues,
are not at risk of detention or refoulement,
and remain hopeful regarding future
prospects. 109 The findings of one large surveyof 34 countries supported “the common sense
conclusion that improving reception conditions
and integration prospects in [transit] states
will directly raise the rate of compliance with14

asylum procedures.”110 Research with migrants
who intended to transit Libya concluded
that “the absence of a humane and orderly
framework for handling migration flows in
Libya is no doubt a contributing factor to theever increasing numbers of migrants, asylum
seekers and refugees willing to risk their lives
in the Mediterranean to reach the safety ofEurope.”111 As noted in Box 14 Hong Kong
achieves a 97% compliance rate with asylum
seekers or torture claimants in the community,
despite the fact those with successful claims
are not offered permanent residency.112 Whilesecondary movement cannot always be
prevented, screening and assessment can
assist in understanding motivating factors
and facilitating registration with authorities.
However, complete control in all cases isunrealistic. The pull of onwards travel is
especially compelling for people seeking family
reunification or who have other pressures toundertake secondary movement. For thesereasons, countries must invest in preventative
mechanisms that address the root causes ofirregular migration and build a stronger international system of burden sharing.
These findings highlight the importanceof understanding the diversity within the
population of refugees, asylum seekers,
stateless persons and irregular migrants
as well as understanding those contexts
that promote good outcomes for a rangeof stakeholders. These findings have beenused to develop the Community Assessment and Placement model to prevent unnecessary detention and support case resolution from a community context. Further
evidence for these findings are incorporated
through the report in the relevant sections.

THERE ARE ALTERNATIVES (REVISED EDITION)

2.5.3 Holistic case management
focused on case resolution
Successful alternatives engage with andsupport individuals through the immigration process, often with case managers. Early
engagement by case managers can reduce
unnecessary detention by identifying risks,vulnerabilities and needs that may impact aperson’s capacity to remain engaged withauthorities. It also supports informed immigration decisions by ensuring all relevant information is available to authorities. It further
assists in understanding and navigating theimmigration process and the case resolution options available to them, promoting
trust in the system. Case managers can also
promote coping and wellbeing by making
referrals to interpreters, legal advisors, healthprofessionals and other services as required.
This in turn helps to promote their compli-

ance with their immigration obligations and/or any conditions or restrictions while in thecommunity. They can also assist the individual to achieve timely and fair case resolution and to prepare them for immigration
decisions, including integration or departurefrom the country. See also Section 7.1.

Research to date suggests asylum seekers, refugees and migrantsÆ Rarely abscond while awaiting theoutcome of a visa application, statusdetermination or other immigration
process, if in their intended destination.

Æ Are better able to comply with requirements if they can meet their basic needs
while in the community.

Æ Are more likely to accept and comply
with a negative decision on their visa
application, status determination or otherimmigration process if they trust:Æ They have been through a fair andefficient process

Æ They have been informed andsupported through that process

Æ They have explored all options toremain in the country legallyÆ Appear less likely to abscond in acountry they intend to transit if they canmeet their basic needs through legal
avenues, are not at risk of detention
or refoulement and remain hopefulregarding future prospects.

Æ Further, while secondary movement
cannot always be prevented, screening
and assessment can assist in understanding motivating factors and facilitating registration with authorities.
However, complete control in allcases is unrealistic. Solutions for suchsituations include proactive preventative
mechanisms that address the root causesof irregular migration and build a stronger
international system of burden sharing.

15

THERE ARE ALTERNATIVES (REVISED EDITION)

3. Community Assessment
and Placement: Introducing
the Revised CAP model

Figure 1: The Revised CAP model - Community Assessment and Placement

16THERE ARE ALTERNATIVES (REVISED EDITION)

The Revised Community and Assessment Model (Revised
CAP model) identifies the principles and processes that prevent
unnecessary detention and support community-based options.
The Revised CAP model, seen in Figure 1, is a practical tool forgovernments and other stakeholders to develop effective andhumane systems for governing irregular migration. It is a nonprescriptive framework that assists governments in reviewing
and analysing their current migration governance frameworkand in exploring alternatives that work in their context. In the
Revised CAP model, the principles of liberty and of minimum
standards underpin the three processes of decision-making,placement and case management. The model, while built upon
the IDC’s program of research, also reinforces the normativeinternational standards relating to the detention of asylum
seekers, refugees, stateless persons and irregular migrants.
113

The Revised CAP Model can be used to:Æ Analyse and assess existing laws, policies
and practices in order to identify gaps,
needs, priorities and goals

Æ Obtain ideas about what is possible and,using these, develop, expand or improvealternatives in local contexts

The following sections describe each of thecomponents of the model in detail and present
descriptive case studies of these principle
and processes in action. These case studies
and break out boxes offer practical examplesof implementation in different contexts.

Æ Facilitate dialogue with officials in different
arms of government, between States andacross stakeholders

Æ Guide the decision making process toensure immigration detention is only used
as a last resort

Æ Train officials, practitioners and stakeholders on how to work towards ending
unnecessary detention and how to develop
and implement alternatives

17

THERE ARE ALTERNATIVES (REVISED EDITION)

4. Liberty: Presumption
against detention

The right to liberty and a presumption against
detention are the first of two principles that
underpin the Revised CAP Model. The right toliberty is a fundamental human right, enshrinedin all major international and regional humanrights instruments.114 It is guaranteed to all
persons, including refugees, asylum seekers,
migrants and stateless persons, irrespective of
their legal status. This right to liberty of person
imposes a number of specific limitations on
States’ ability to detain, including the requirement that detention is justified by a legitimate State objective, is in accordance with thelaw, and is not arbitrary. Any system seeking
to avoid unnecessary and arbitrary detention
must be based on a presumption of liberty.

18

The research identified the following strategies to protect the right to liberty. These
strategies are strongest when establishedin law; however, they can also be statedin policy or established in practice. These
include laws, policies and practices that:Æ Establish a presumption of liberty
Æ Provide a mandate to apply alternatives in
the first instanceÆ Only permit detention when alternatives
cannot be appliedÆ Prohibit the detention of vulnerable
individuals

THERE ARE ALTERNATIVES (REVISED EDITION)

4.1 Establish a presumption of liberty
A presumption of liberty, or a presumption
against detention, is an effective means of
ensuring detention is only used as a measureof last resort in exceptional circumstances.
A presumption of liberty upholds each individual’s right to freedom of movement
and helps to prevent immigration officials
from resorting to confinement when otheroptions are at their disposal.115 A presumption of liberty is strongest when establishedin law or detailed in policy. All laws, policies
and other materials establishing a presumption against detention should be made widely
available in writing to ensure consistent
implementation. Further, in order to be mosteffective, governments should undertake
training and guidance on implementation
with enforcement officers and the judiciary.

BOX 1

Countries that operate with a strong presumption of liberty for all persons include Argentina,
Brazil, Costa Rica and Venezuela. In thesecountries, national laws strongly espouse
the principle of non-discrimination and do
not distinguish between nationals and nonnationals for the purposes of access to andenjoyment of fundamental rights. Suchlaws provide detention be used only as an
exceptional measure of last resort and/or where necessary, and provide for alternatives to be used in the first instance.

4.2 Mandate to apply alternatives
in the first instanceA presumption of liberty is strengthened whenalternatives are clearly specified and established in law or policy. Legally prescribed alter-

A PRESUMPTION OF LIBERTY IN LAW

The Argentine Immigration
Law (Law 25.871), enacted
in January 2004, recognisesthat migration is a humanright, and extends constitutional and human rights
protections to all persons in
the country irrespective of
their legal status. Article 6
of Law 25.871 also guarantees all persons the rightto non-discrimination, andaccess to education, medical
and social services. Immigration detention is limitedin law and practice to rare
instances, and is generally only permissible aftera final order of deportation
has been issued.116 Article
61 of Law 25.871 states that

before deportation, a person
must be given the opportunity to explore all options
to regularise their status,
within a set deadline. Migration decisions are made byimmigration authorities but
are reviewable by a court,with no detention during thisperiod. Legal aid is available
throughout the deportation
process.
Deportation and detention are both decisions thatmust be ordered by a court,with detention used only asa final resort after all otherremedies are exhausted.
Under Regulation 616/2010
accompanying Law 25.871,

ARGENTINA
detention orders can only
be issued as a precautionary measure before a final
immigration decision where
there is a risk of non-compliance with a deportation
order. Article 70 of Regulation 616/2010 provides that
detention orders can only
be issued for a maximum of
45 days to effect deportation where a removal orderhas been finalised; within
this period, after the first 15
days of detention, immigration authorities must provide
a detailed report every ten
days to the courts justifying the extended detention
period.

19

THERE ARE ALTERNATIVES (REVISED EDITION)

natives provide officials with clear options forpeople to remain in the community while theirimmigration status is being resolved. Several
countries maintain laws and policies thatmandate, or require, alternatives to be considered or applied before a decision to detain is
made (such as in Argentina (Box 1), Austria
and Costa Rica). Others encourage authorities to consider alternatives before using
detention (such as in Canada, Hong Kong,
Indonesia, Ireland and Japan). The effectiveness of such laws in preventing unnecessary
detention relies on good implementation.
A clear example of this mandate can be foundin the European Union (EU). Through transposing of the Returns Directive 117 and therecast Reception Conditions Directive 118 intheir national legislation, Member States are
required to ensure that detention is used as a

BOX 2

4.3 Only permit detention whenalternatives cannot be applied
Laws or policies that establish a presumption of liberty may do so by allowing theuse of immigration detention as an exceptional measure, only when alternatives
cannot be applied in the individual case.
Such laws can ensure decision-makers andimmigration officials review less restrictive measures for each case and establish
clear reasons why such measures cannot beapplied in the individual case. This ensures

ALTERNATIVES TO DETENTION IN LAW

Poland has passed legislation providing for a mandate
to consider alternatives
to immigration detention.
The New Act on Foreigners entered into force on 1
May 2014. It is modelled on
Directive 2008/115/EC of theEuropean Parliament and of
the Council of 16 December
2008 on common standards
and procedures in Member
States for returning illegallystaying third-country nationals (the Returns Directive).
Article 398 of the New Act
on Foreigners provides for
the Polish Border Guard
authority to apply any one ormore of the following:20

measure of last resort, only to be applied after
non-custodial alternatives to detention havebeen examined. As a result of these Directives,
almost all EU Member States now provide foralternatives in national legislation (see Box 2
Poland, Croatia and New Zealand as examples).

POLAND, CROATIA AND NEW ZEALANDÆ Reporting at specified
intervals to the Polish
Border Guard;

Æ Lodging a security
deposit, no lower than
twice the amount of
the minimum wage
stipulated by minimum
wage law;Æ Surrendering of travel
documents; andÆ Directed residence at alocation specified by theauthorities.
Croatia nominates several
alternatives to detention
in its national legislation,
which was introduced in2012. These include the duty
to surrender documents, todeposit sureties, to reside at
a designated address and toundertake regular reporting.119 Further, a book of rules
provides additional guidance
to officials regarding implementation.120
Section 315 of New Zealand’s Immigration Act 2009
outlines specific conditions
that may be applied to aperson who would otherwise
be subject to detention,
including reporting, guarantors and undertaking actions
towards case resolution.

THERE ARE ALTERNATIVES (REVISED EDITION)

officials must demonstrate the particularreasons why detention is deemed necessary
for those individuals facing detention.

A presumption of liberty
is strongest when established in law, although it
can still be established inpolicy or in the practiceof immigration officials
to not detain unlessnecessaryEvidence of such consideration may berequired to be submitted when a detention
decision is being made or reviewed incourt. Where it is not articulated in law, apresumption of liberty can still be established in policy or in the practice of immigration officials to not detain unless necessary,as seen in Box 1 Argentina and Box 21
Sweden. In several jurisdictions, courts haveBOX 3ordered authorities to revisit their procedures to ensure they can demonstrate
the reasons for detention and why a morelenient measure has not been applied.121

4.4 Prohibit the detention ofvulnerable individuals
Additionally, many countries protect the rightto liberty for certain vulnerable individuals.
These States either prohibit the detentionof vulnerable individuals in law or direct
officers to apply alternatives to those individuals. While countries vary in their identification of vulnerability, this can include
unaccompanied children, children travelling with family, pregnant women, the elderly,
persons with mental or physical illnesses,
refugees and asylum seekers, and/or statelesspersons. Examples of such laws and policies
include Box 3 China, Box 7 Hungary, Box
11 Zambia, Box 12 the United States, Box
13 Turkey, Box 14 Hong Kong and Box 18
Belgium. Further information on identifying
vulnerability is provided in Section 6.3.

PROHIBITING THE DETENTION OF VULNERABLE INDIVIDUALSThe People’s Republic ofChina’s (China) Exit andEntry Law, which came into
effect on 1 July 2013, aims tolimit the use of immigration
detention for vulnerable individuals. The Exit and Entry
Law excludes certain vulnerable migrants from detention
including minors under 16
years of age, persons withdisabilities, persons withserious illnesses, pregnant
women, and those over 70

years of age. The Exit andEntry Law also contains
provisions allowing refugees
and asylum seekers to stay
in China after obtaining an
identification card from public security authorities.
Additionally, the July 2012
revisions to the Procedural
Provisions for the Handlingof Administrative Cases by
Public Security Organs also
excludes other individuals
from detention including:

CHINA

those who voluntarily ask
for inspection by entry-exit
department, pay fines, andbuy tickets to voluntarily
return to their home country;
those who entered throughirregular means and stayed,received no help from family members or embassies;
survivors of trafficking;and foreigners married toChinese nationals, especiallythose with children born in
China.

21

THERE ARE ALTERNATIVES (REVISED EDITION)

Ensuring the right toliberty for child migrants
Refugee, asylum seeking and irregular migrantchildren are, first and foremost, children.
States are required to consider their bestinterests as the primary consideration in alldecisions impacting upon them and to uphold
their rights without discrimination. Indeed,
the UN Committee on the Rights of the Child(‘CRC Committee’) has concluded:

The detention of a childbecause of their or theirparent’s migration status constitutes a child rights violation
and always contravenes theprinciple of the best interestsof the child. In this light, Statesshould expeditiously andcompletely cease the detentionof children on the basis of
their immigration status.122

resort, and the right to not be punished for theacts of his or her parents. Alternatives should
be applied to the whole family, with detention
only in very exceptional circumstances. 124
Evidence shows that detention can have a
profound and negative impact on the healthand development of young people. Children in
detention are at risk of depression and anxiety
and frequently exhibit symptoms of PostTraumatic Stress Disorder. 1 Detained children
have higher rates of suicide, suicide attempts
and self-harm, mental disorder and developmental problems. Even very short periods ofdetention can undermine a child’s psychological and physical wellbeing and compromise
their cognitive development. A recent study
has reinforced these concerns, concluding:“Detention is highly distressing and often
traumatic [for children]. On the basis of ourfindings, children, regardless of immigration
status, should be protected from detention
and should also be spared forced separationfrom their parents.”128

Further, the detention of a migrant child tomaintain family unity may violate the principleof the best interests of the child, the child’s
right to be detained only as a measure of last

The IDC supports the Global Campaign to End Immigration Detentionof Children. More details can be found at http://endchilddetention.org

22THERE ARE ALTERNATIVES (REVISED EDITION)

The Child Sensitive Community and Assessment Placement Model (CCAP)
The IDC’s program of research has identified several mechanisms that States can use to ensurethat the rights of irregular migrant children are protected while awaiting case resolution. These arelaid out in the IDC’s Child-Sensitive Community Assessment and Placement Model (CCAP).1 CCAP
provides governments and other stakeholders with further details on how to actualise CAP specifically in the context of children. The core components of CCAP are as follows:

Prevention

Placement and Case Management

This systemic aspect protects children fromdetention by establishing in law or policythat children should not be detained.

Involves an exploration of the migration
options available to the child and their family,
a full best interest determination, and anassessment of the protection needs of thechild and/or their family.

Screening, Assessment and Referral
Within hours of coming into contact witha child, authorities must undertake a bestinterest assessment and place them in an
appropriate community setting that takes
into account age, gender and cultural
background. This component includes
screening the individual to determine theirage (with a full age determination only
when there are serious doubts as per Box4), assigning a guardian to unaccompanied or separated children (see Box 5), allocating a caseworker to children who aretravelling with their families, undertaking
an intake assessment and placing the childand their family into a community setting.

BOX 4

Reviewing and Safeguarding
This step ensures that the rights of children
and their best interests are safeguarded
through regular independent review of any
decisions taken including placement, conditions applied and legal status.

Case Resolution
The realisation of a sustainable migration
solution for the child and their family.
More details on CCAP can be foundin the IDC Publication Captured Childhood.
http://idcoalition.org/ccap

AGE ASSESSMENTS

Where the age of an individual is in dispute, an age
assessment may be required.
The UN Committee on the
Rights of the Child has recommended that age assessments should have regard
for the psychological maturity of the individual, as wellas their physical appearance.
Assessments should be conducted in an objective, safe,
child- and gender-sensitive
manner. Age assessment
can integrate documentary

evidence, interviews andprofessional observation
with medical assessments.130
In Sweden and Belgium,
these three methods are
combined. Age assessment
procedures can be contentious, with interviews andobservational technique visual, cognitive, behaviouraland psychological - often
being subjective and dependent upon the expertiseof the assessor, particularly
on culturally-appropriate

markers of age.131 Medical
tests including Magnetic
Resonance Tomography,
bone and dental radiology
and examinations of sexual
maturity have also been criticised for their inaccuracy.132
If age determination assessments do not remove doubts
as to the age of the person,then they should be given
the benefit of the doubt andconsidered a minor.133

23

THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 5

ENDING IMMIGRATION DETENTION OF CHILDREN

PanamaIntroduces a law to prohibit
the immigration detention ofchildren.

Indonesia
Belgium

Introduces law permitting
the release of children andother vulnerable individuals
from immigration detention.

Implements alternatives todetention for children andfamilies.

2005

2008

2010

South Africa

FinlandCourt rules children may
only be detained as amatter of last resort.

Commits to end the detentionof unaccompanied andseparated children.

Japan
Releases all children from
immigration detention andestablishes a policy to nolonger detain children.

United Kingdom
Announces it will end thedetention of children

24

2011

THERE ARE ALTERNATIVES (REVISED EDITION)A SNAPSHOT OF GLOBAL TRENDS

China

Malta

Passes a new law
restricting thedetention of children
under 16 years of age.

Commits to ending childimmigration detention

TurkeyLimits the detention ofminors to exceptional
circumstances

Passes new legislationprohibiting the detentionof unaccompanied
minors seeking
international protection.

2012

2014

France2015

The Netherlands

TaiwanAnnounces that families
with children who seek
asylum will no longer bedetained at the border,
except in exceptionalsituations.

Prohibits the detentionof children under theage of 12 years old.

IsraelIntroduces a new law excluding children
from “residence orders” (a requirement toreside at designated detention centres)and directing authorities to placeunaccompanied minors and other specified
children into community settings.

25

THERE ARE ALTERNATIVES (REVISED EDITION)BOX 6

APPOINTMENT OF A GUARDIAN

Unaccompanied children, andthose separated from theirprimary caregiver, are particularly vulnerable to abuseand exploitation and are entitled to special protection.134 A
crucial protection measure is
the appointment of an independent, legal guardian. The
guardian’s key role is to help
ensure the child is not at any
legal disadvantage in the immigration process, and that
their support and care needs
are being met. In Comment
No. 6, the CRC Committee reinforced the need forStates to appoint a guardian or adviser as soon as an

BOX 7

There are different types ofguardianship models.136 Good
practice examples maintain aclear distinction between therole of the guardian and thatof the immigration authorities. In Belgium, guardiansare professional non-government individuals and volunteers, while in Sweden these
are citizens of good standing.
In both countries, guardianship is appointed by anindependent body, this being
the Guardianship Service andChief Guardian respectively.
In the Philippines, the Department of Social Welfare andDevelopment are delegatedas the responsible guardians
to provide shelter, social workand health care services.

UNACCOMPANIED CHILDREN ARE NOT TO BE DETAINEDHUNGARY

employed by the Departmentof Child Protection Services,
who is legally responsible forthe overall care, management
and legal representation of
the child.

tions.139 Section 45(1) of the
Hungarian Child Protection
Act requires that children incare facilities must be provided with food, clothing, healthcare, education and housing
suitable for the developmentof their physical, mental andemotional needs.

Section 56 of Hungary’s Act
II of 2007 on the Admission
and Rights of Residence ofThird-Country Nationals
establishes that unaccompanied children cannot be
detained for migration reasons.137 Unaccompanied children who come into contact
with authorities, however,must provide evidence of
their identity (with personal
identification or valid travel
document) and demonstratea legal ground for stay in
Hungary. Those who cannot
provide this may be held
for a maximum period of 24hours while the authorities
conduct identification andage assessment verification.
Those found to be children
are appointed a guardian26

unaccompanied or separated
child is identified, and tomaintain such guardianshiparrangements until the childhas either reached the ageof majority or has permanently left the territory. The
guardian should be consulted
and informed regarding all
actions concerning the child,and should have authority to
be present in all planning anddecision-making processes
involving the child.135

Since May 2011, unaccompanied children seeking asylum
or international protection
fall under the scope of thecountry’s general child protection regime and thus enjoy
the same rights as Hungarianchildren. They are regarded
primarily as children, and only
secondarily as migrants.138
They are placed in a specificchild protection facility in
Fót supervised by Hungarianauthorities, with services provided by a variety of national
and international organisa-

Non-asylum seeking children
are accommodated in achild protection facility in
Hódmezövásárhely run by
the Catholic Church under acontract with the Social andChild Protection Directorate.
The capacity at this facility
is, however, limited and some
non-asylum seeking children
are placed at other childprotection facilities whenrequired.140

THERE ARE ALTERNATIVES (REVISED EDITION)

5. Minimum standards

The second principle in the Revised CAP
model is minimum standards. These
minimum standards underpin all decisionmaking and placement processes in the
Revised CAP model. There are a numberof minimum standards which States must
respect and uphold for all individuals,
regardless of legal status. These minimum
standards help to ensure the proper functioning of migration governance systems
and the effectiveness of alternatives.
Without these minimum standards in place,alternatives are also less likely to achieve
desired rates of compliance, case resolution and respect for human rights. Individuals are better able to remain in compli-

ance with authorities if they can meet theirbasic needs while in the community. They
are also more likely to accept a negative visa
or status decision if they believe they havebeen through a fair immigration process;they have been informed and supported
through the process; and have explored all
options to remain in the country legally.
Minimum standards include:Æ Respect of fundamental rights
Æ Basic needs
Æ Formal status and documentation
Æ Legal advice and interpretation
Æ Fair and timely case resolution
Æ Regular review of placement decisions

27

THERE ARE ALTERNATIVES (REVISED EDITION)

5.1 Respect of fundamental rights
It is crucial that States ensure all persons, irrespective of their status, are able to exercise
their fundamental human rights and freedoms.
These rights establish minimum standards oftreatment to ensure each person is treatedwith dignity; as such, these rights should be
respected and promoted for every person
within the State’s jurisdiction.141 These fundamental rights include economic, social andcultural rights such as access to health, livelihood and education. As outlined above in
Section 4, fundamental rights include theright to liberty and freedom of movement
and the right to protection from discrimination on any grounds including national
origin or migration status. These latter rights
are particularly important in relation toState governance of non-citizens. Further,ensuring fundamental rights are respected
can support migrants to stay engaged withauthorities, minimise secondary movement
and improve the safety and security ofboth migrant and local populations. Fundamental rights may be provided and/or
supported through laws, policies or practice.

Ensuring fundamental
rights are respected cansupport migrants to stayengaged with authorities, minimise secondary
movement and improve
the safety and securityof both migrant and local
populations
Argentina, Brazil, Costa Rica and Venezuela
strongly espouse the principle of non-discrimination and do not distinguish between

28

nationals and non-nationals for the purposesof access to and enjoyment of fundamental
rights. As seen in Box 1, Argentina has established in law that constitutional and humanrights protections extend to all persons in
the country, irrespective of their legal status.
Further, migration is protected as a humanright. The law also guarantees all persons
the right to non-discrimination, and accessto education, medical and social services.

5.2 Basic needs
The ability to meet basic needs is the second
minimum standard that underpins alternatives. It is important that all individuals, regardless of migration status, areable to meet their basic needs. The ability
to meet basic needs is fundamental tohuman life and is protected and reinforced
in various human rights instruments.142
In addition to this mandate, there is evidence
that asylum seekers, refugees and irregularmigrants are better able to comply withrequirements if they are able to meet theirbasic needs while in the community.143 Those
migrants living in stable accommodation
appear to be in a better position to remain incontact with authorities than those who havebecome impoverished or homeless.144 Policies
that restrict access to housing, basic welfare
or health care amongst irregular migrants
have not been associated with increased
rates of independent departure or deterrence
outcomes.145 Instead, these policies have been
associated with poorer health, with serious
consequences for authorities working towards
case resolution including return.146 However,case management programs that work withclients to meet their basic needs have been
associated with higher rates of independent
departure or other case resolution.147 It must
be noted that confinement in immigration
detention is not an appropriate way to provide

THERE ARE ALTERNATIVES (REVISED EDITION)

for basic needs, nor does it ensure their fundamental rights are respected, nor does it ensure
their fundamental rights are respected.
In some cases, individuals are able to provide
for their own needs through legal work. A
number of countries provide asylum seekers
with the right to work while their status isbeing determined, as seen in Box 8 Spain,
Box 9 Chile and Box 21 Sweden. In the EU, theReception Directives requires Member States
to provide asylum seekers with “an adequate
standard of living … which guarantees theirsubsistence and protects their physical andBOX 8mental health.”148 Member States are also
required to give applicants access to thelabour market no later than nine months fromthe date of lodging a protection application.149

Migrants are better able tocomply with requirements
if they are able to accessand meet their basic needs
while in the community

ENSURING ASYLUM SEEKERS CAN MEET THEIR BASIC NEEDSIn Spain, asylum seekers whoenter the refugee determination process can behoused in an open reception
centre if they cannot afford
private accommodation.150
These centres are operated
by the government or by
non-government organisations. The total reception
capacity in Spain is about
850 places, with priority
given to vulnerable individuals. Asylum seekers cannot
choose which area within
Spain they will be located.
The centres are responsible
for the reception, promotion
and integration of asylum
seekers and refugees.151
Residents are free to comeand go from the centres as
they like. As an example, one
centre provides bedrooms
shared by 3-4 single adults,
while families have their own
room with a small bathroom
attached. There are cateredmeals in a dining hall, public
lounge areas, library, sharedcomputer and Internet access and a shared laundry.
Residents receive ¤50 per
month cash allowance for
their own use including public transport. Twice a year
residents are given money
for clothes.
Residents are assigned asocial worker who provides
information and advice on
their situation, works to develop an individual pathway
and assists them in accessing education, health careand other social systemsof Spain. All residents are
expected to attend Spanish
language classes, culturalorientation, and employment preparation programs.
Recreational activities suchas sports, visits to the local library, exhibitions andmovies are supported by anactivities officer. Psychologi-

SPAIN

cal services and specialised
services including legal
aid are available for eligible residents. The centres
also undertake advocacy
activities in the local Spanish
community.152 Residents areissued a card that identifies
them as asylum seekers andfacilitates their access to
medical care.
Asylum seekers can behoused in reception centres
for six months. If they arestill awaiting a decision on
their refugee application atthat time, they are supported to find independent
housing and employment.
At this point, they are given
the right to work. Vulnerable
individuals and families may
apply to extend their stayin the centre for an extra
six months if needed. The
program has been praised
by UNHCR for its high standards.153

29

THERE ARE ALTERNATIVES (REVISED EDITION)

However, those excluded from the labour
market may need financial aid or direct
provision of goods. Non-government organisations often play an important role in providing
for basic needs, with or without government funding. In doing so, they create theconditions to enable release from detention.
Support to meet basic needs can be seen inBox 7 Hungary, Box 8 Spain, Box 9 Chile, Box
10 Canada, Box 11 Zambia, Box 14 Hong Kong,Box 16 Australia, Box 17 the Netherlands,
Box 18 Belgium, Box 19 Hungary, Germany
and the United States, Box 20 Europe, Box
21 Sweden and Box 24 the United States.
Simply providing legal entitlements to healthcare, employment or education is often not

BOX 9

FORMAL STATUS AND DOCUMENTATIONIn Chile asylum seekers areissued with a renewable
temporary stay permit,
valid for eight months, which
provides the holder with anentitlement to work. A comprehensive social assistancescheme ensures asylum
seekers and their families
are able to meet their basic
needs, with access to food,housing, furniture andtransportation. An asylum
seeker is entitled to full support for three months; thisthen decreases to 75% after
three months, 50% after six
months, and ends after 12months. However, this may
be extended in special circumstances.155
Afghan refugees in Iran areissued with “Amayesh cards”
that provide them with legal

30

enough to ensure that people can accessthese in practice. For example, frontline healthproviders may not be aware of their obligations to provide treatment to migrant groups
and the cost of accessing health services
can be prohibitive. Further, it may be difficult
to obtain a work permit and/or employment. Work is particularly hard to secure withtemporary status with short-term employment rights or when limited to working in
set industries. An absence of documentation and/or previous school records canresult in education providers denying access.
In some countries, children are only able toaccess informal learning centres rather thangovernment schools, preventing them fromreceiving an officially recognised qualification.

status in the country. These
cards serve as valid identity
cards and permit the holder
to access health care andeducation. Amayesh cards
are currently issued for ayear and must be renewed
annually, at a cost of approximately USD $3 per card.
In Romania, tolerated status,
and an accompanying ‘tolerated document’ are issued
by the Romanian General
Inspectorate to persons who
cannot leave the Romanian
territory but who would
not otherwise have a legal
basis to remain.156 Tolerated
status is granted for an initialperiod of six months, renewable for further six-month
periods until the reasonsfor toleration cease to exist.
At that time, the individual

VARIOUS COUNTRIES
is required to depart thecountry. Individuals holding a tolerated document
have the right to work, arerequired to report regularly to a territorial unit of
the General Inspectorate,
and must notify authorities of any changes to theirplace of residence. They arealso required to reside in aparticular geographical area
and obtain approval to travel
outside of this area.157
In Turkey, stateless persons
who have been identified
are to be issued a Stateless
Person Identification Document. This grants the right tolegal residence and access tohealth, education and legal
services.

THERE ARE ALTERNATIVES (REVISED EDITION)

5.3 Formal status and documentation
Formal status – and documentation of thatstatus – are the third minimum standard tounderpin successful alternatives. Individuals who are waiting for a decision on theirmigration status are particularly vulnerable to detention if they do not have formalinterim status allowing them to remain in the
country pending case resolution. Documentation should be issued that provides evidenceof the individual’s identity and permission to
be in the country. Such documentation papers
are important because they ensure individuals
who have already been screened by authorities are not picked up by another branchof government and re-processed unnecessarily. Such documentation can also be usedby social support organisations to identify
those individuals who are eligible for theirservices. It can also act as a de facto reporting
mechanism if it has to be reissued after a set
period of time or in particular circumstances.
If an appropriate visa or status has not beendeveloped, such documentation may statethat a deportation order will not be effecteduntil a particular date or outcome is achieved(see Box 14 Hong Kong). States can build on
or modify existing processes for issuing visas
to develop such interim statuses.154 Although
this documentation is most often issued by thegoverning State, asylum seekers and refugees
in some countries rely on the identification
documents issued by UNHCR to defend theirpresence in the territory and guard themselves from being detained unnecessarily.

Documentation underpins
successful alternatives todetention and can serve
multiple purposes forvarious stakeholders

Box 9 sets out different examples of interim
legal status and documentation that can beconferred upon individuals awaiting a final
immigration outcome or who have beenfound with no legal basis to remain but are
unable to depart the country due to administrative or other reasons. In most examples,the granting of legal status and issuanceof documentation is accompanied by work
rights and access to social assistance. See
also Box 8 Spain, Box 13 Turkey, Box 14 Hong
Kong, Box 21 Sweden, and Box 26 Australia,
Mexico, Philippines and South Korea.

5.4 Legal advice and interpretation
Legal advice and interpretation are further
minimum standards that ensure individuals areproperly advised about their migration and/or detention situation and the legal processes
surrounding their case. These ensure the rightto due process is protected. Individuals arein a better position to comply with authorities if they understand their legal position, thejudicial and bureaucratic procedures in which
they are engaged, and the potential futuresthat await them.158 Lawyers and appropriately trained migration agents are best able
to provide accurate and reliable advice toan individual on these matters. As one study
concluded, “The single most important institutional feature that fostered trust was access toearly, reliable legal advice and assistance.”159

Individuals are in a better
position to comply withauthorities if they understand their legal position,
the judicial and bureaucratic procedures in which
they are engaged, and thepotential futures that await
them.

31

THERE ARE ALTERNATIVES (REVISED EDITION)

Caseworkers who are knowledgeable about
the migration system can reinforce the information provided by legal counsel and authorities to create a consistent message and provide
practical support to complete immigration
processes. In addition, the use of legal counsel
is seen to benefit the immigration system bycreating a fairer system 160 and increasing efficiency and consequently reducing costs overall
by ensuring decision-makers are not required
to delay proceedings or spend time clarifying
claims made by applicants without representation.161 Legal aid programs for migrants are seenin numerous countries including Japan, Jordan,
Thailand, Egypt, the United States and Yemen.
The majority of these were administered by
non-government organisations to provide legal
assistance and counselling to asylum seekers intheir refugee status determination programs,
to asylum seekers and irregular migrants in
employment matters, or to assist persons
who are detained or at risk of detention.
Interpretation and translation are also extremely
important to ensure vital information is effectively communicated.162 In addition to translated
written materials, qualified interpreters improve
communication with lawyers, caseworkers
and immigration officials. When interpreters
cannot be on site, telephone-based interpretation services may be the next best option.163

5.5 Fair and timely case resolution
Another important minimum standard is thefair and timely resolution of migration status.
Fair and timely case resolution is a fundamental requirement for an effective and soundmigration management system. As demonstrated earlier in this Handbook, individuals
are more likely to accept and comply witha negative decision on their visa application, status determination or other immigration process if they believe their application
has been assessed in a fair and just manner.
If an individual believes the system is unfair,they will be much less likely to accept negative

32

outcomes (such as a visa refusal), to comply
with conditions and to remain engaged withauthorities. Where processes are protracted,
poorly managed and lack transparency, individuals will be at risk of becoming lost in
the system and stuck in situations of uncertainty. This encourages secondary movement
or going ‘underground’ as a strategy tocontinue progressing with their lives.
Elements that impact on the fairness of the caseresolution system include difficulty obtaining
information on immigration processes, inconsistent or contradictory information ordecisions, weak mechanisms for appealing
negative decisions, and a lack of transparencyof the decision-making process (such as reasonsfor negative decisions). A prolonged and inefficient case resolution process can also impact
a person’s belief in the system and willingness
to accept final outcomes, whether it be independent or voluntary departure or deportation.
Further, as noted in Section 8.3 Detention as alast resort, with review, immigration detention
is usually experienced as a severe injustice due
to being incarcerated despite believing themselves innocent of any crime.164 This feeling of
injustice can saturate their experience of theimmigration procedure and lead them to believethat their case has not been heard fairly. Thiscan make it difficult to work towards return for
those found to have no legal right to remainin the country. Deportation can be extremely
difficult to achieve if the person does not wantto comply, even with detained populations.165

5.6 Regular review ofplacement decisions
The final minimum standard is regular reviewof placement decisions in order to reassess thenecessity and proportionality of any conditions or restrictions imposed and to take into
account any changes in an individual’s circumstances. Alternatives that restrict liberty are
subject to human rights standards, including
periodic review by an independent body.166

THERE ARE ALTERNATIVES (REVISED EDITION)

As applicable, individuals subject to alternatives need to have timely access to effective
complaints mechanisms as well as remedies.167
Regular reviews also give authorities a chance
to reassess a person’s willingness to remain
engaged with authorities on the progress of
their migration case and to comply with any
conditions imposed. As seen in Box 10 Canada,
reducing conditions to reward and reinforce
compliance is an effective tool in maintaining
engagement. Regular reviews also enableauthorities to identify changes in circumstancesthat affect placement decisions, such as newvulnerability or risk factors, and identify any
new or enduring barriers to case resolution.168
Further, the right to judicial review of any
decision to detain is key for preventing arbitrary
detention.169 It is particularly important thatsystems of detention include regular, independent review of the detention decision andof potential avenues for release. The ability tochallenge one’s detention in an impartial court
is a fundamental mechanism to safeguard individual freedom against arbitrary detention.

pendent review, whether by the courts or an
independent administrative body.171 Review
by a court or independent administrative
body ensures independent and systemic
oversight. Such transparency ensures thatthe reasons for taking the decision to detain
have been well established by the decision-maker and that the person concerned
has had a genuine opportunity to present
relevant evidence and raise concerns.
Avenues for release from detention may
include bail or bond schemes (described in
Bail, bond, surety or guarantee) or release at
the end of a maximum period of detention.
Release may also result from issues of vulnerability and duty of care, such as when someone
develops serious mental health issues thatare compacted due to their ongoing confinement or, in the case of stateless persons, to limit
periods of detention when waiting for a resolution of their situation.172 Developing pathways
into community options ensures detention is
not the result of a lack of options for release.
See Box 25 Canada and Box 26 Australia,
Mexico, the Philippines and South Korea.

Regular reviews enableauthorities to identify
changes in circumstancesthat affect placement
decisions, such as newvulnerability or risk factors,
and identify any new or
enduring barriers to caseresolution.
One of the strongest mechanisms to achieve
this is to establish in law that any decision todetain requires judicial approval, as seen in
Argentina (Box 1) and Germany.170 Decisions
regarding confinement should be regulated
through automatic, prompt and regular inde-

33

THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 10REGULAR REVIEWThe Toronto Bail Program in
Canada provides an exampleof the importance of regularreview of conditions. The
program has been operating since 1996 as a specialist
agency funded by the government.173 The organisation
identifies eligible detainees
through a screening and assessment process and thensupports their application
for release on bail. Clients
include migrants who arefacing departure after completing a prison sentence,
refused refugee claimants,
and asylum seekers detained
due to issues of credibility or
flight risk. The program relies
on strong case management,

34

CANADA AND THE EUROPEAN UNION
support, information andadvice, reporting and supervision. Those who enter the
program are initially placed
in intensive supervision, withregular reporting. These
conditions are reviewed andreduced after a period ofcompliance, building trust
between case managers andparticipants. Case managers also identify and address
issues such as substanceabuse, drug addiction ormental health needs, asthese personal issues often
impact compliance. The
program costs CA$10-12 perperson per day comparedwith CA$179 for detention.174
In the 2009-2010 financial

year, it maintained a 96.35%
retention rate;175 in the 20132014 year, it was 94.31%.176
Member States of the European Union are required
to undertake timely judicial
review of detention decisions, by way of Article 15 (2)of the Return Directive andArticle 9 (3) of the revised
Reception Conditions Directive.177 In addition, Article 15(3) of the Return Directive
and Article 9 (5) of the Reception Conditions Directive
establish that detention has
to be reviewed at reasonableintervals of time either byapplication from the thirdcountry national or ex officio.

THERE ARE ALTERNATIVES (REVISED EDITION)

6. Identification and decision-making

Screening and assessment are crucial for
ensuring effective migration governance.
Individual screening and assessment are theonly ways to ensure detention meets thetests of necessity and proportionality and is
not arbitrary. Indeed, immigration authorities are increasingly using screening andassessment to ‘screen out’ those who should
not be detained and to make informed
placement and management decisions.
Through individual screening and assessment, governments can identify and evaluaterisk, needs, vulnerabilities and strengths tomake an informed case-by-case decision on
how to place, manage and support an individual while their immigration status is being
resolved. Screening and assessment canoccur at all stages in the migration process,including prior to making a placement
decision and at periodic intervals during
such placement. Ongoing periodic reassessment is crucial to review and adjust
placement decisions and to ensure any conditions on their placement are still necessary.

Screening and Assessment
are different yet complementary processes thatallow authorities to adjust
placement decisions andto ensure any conditions
on their placement are stillnecessary35

THERE ARE ALTERNATIVES (REVISED EDITION)

Screening is the process to obtain basic
information and individual attributes, suchas bio-data. Information collected during
screening includes, inter alia, an individual’s identity, nationality, legal status, healthstatus, security indicators, vulnerability indicators and compliance history. This information can be used to determine the individual’s
migration status and to make initial referral,management and placement decisions.
Assessment involves a more in-depth evaluation of an individual’s circumstances, vulnerabilities and/or risk factors. An assessment
may be conducted to evaluate needs identified
during screening (e.g. trafficking survivor orstateless) or it may involve an in-depth examination of the appropriate course of action
to take for a particular person. An assessment may occur at the same time and by
the same person conducting the screening,or it may happen at a later date and on arepeat basis by caseworkers, immigration
officers and/or members of the judiciary.
Assessments are used to make or adjust
management and placement decisions.
Screening and assessment of the individual case can include several factors.
The sections below will describe four
key areas that are considered central toeffective case management with migrants.
As seen in Figure 2, these areas are:

Æ Legal obligations

Figure 2: Understanding the population throughindividual assessment

Legal
Obligations

Vulnerability

Community
Context

Identity,
Health &Security
ChecksIndividual
Case Factors

6.1 Legal obligations
It is of primary importance that detention islegally applied in each case to protect individuals from arbitrary or wrongful detention. A
process that screens individuals against international human rights laws and standards andnational laws and policies regarding detention
can reduce the likelihood of unlawful detention
and the costly litigation and public criticism
that can entail. An assessment of legal obligations in each individual case can establish
the lawfulness of detention and identify any
legal requirements that must be fulfilled.

Æ Identity, health and security checks
Æ VulnerabilityÆ Individual case factors
Æ Community context

36

Many countries have laws that outline
mandatory actions in particular migration
cases, including that certain vulnerable individuals, such as children, cannot be detained.
These will vary according to national law
and, in some cases, regional agreements.
States must be extremely careful thatthe right to be protected from arbitrary
detention will be upheld should any formof mandatory detention be considered.178

THERE ARE ALTERNATIVES (REVISED EDITION)

Some of the obligations imposed thatmight be assessed at this stage include
those that prevent the detention ofparticular people, such as unaccompanied children (Box 7 Hungary). Laws may
also prohibit the detention of citizens andresidents with legal status or other vulnerable individuals (as seen in Section 4.4.)

Finally, there may be laws or policies
outlining the circumstances in whichpeople who are already in detention
must be released. These can include:

Law or policy may require that alternatives
to detention are applied or shown to be inadequate in an individual case before detention
can be applied, as seen in Section 4.

Æ When a visa is issued or right to stay

BOX 11

Æ When a duty of care cannot be met withina detention environmentÆ When a maximum period of detention has
been reachedachieved

SCREENING AND ASSESSMENT IN A MIXED MIGRATION CONTEXT

Between 2013 and 2014, thegovernment of Zambia collaborated with the IOM, UNHCR and the United Nations
Children’s Fund to develop
the capacity of national actors to respond to the needsof vulnerable migrants in amixed migratory context. A
technical taskforce involving
several government ministries, police and civil society
groups was formed to support the program’s goals.
A National Referral Mechanism (NRM) 179 and associated
Guidelines were developed
to effectively identify vulnerable migrants and refer them
to appropriate authorities
and services.180 According to the NRM, vulnerable
migrants include refugees,
asylum seekers, rejectedasylum seekers, victimsof trafficking (including‘presumed’ and ‘potential’
trafficked persons), unaccompanied and separated

children, stranded migrants
and stateless migrants.
The NRM process starts withan initial interview and registration of migrants by frontline officers.181 The purposeof this initial interview is toassess immediate protection/assistance needs andto collect and register basic
bio-data.
The migrant is then referredto the relevant authority
for a more comprehensive
assessment and statusdetermination. The relevant
authority may include thepolice (for victims of trafficking), the social welfare
ministry (for unaccompaniedor separated minors), theOffice of the Commissioner
for Refugees (for refugees,
asylum seekers and refusedasylum seekers) and theimmigration authorities (forstranded migrants or stateless persons).

ZAMBIA

After this comprehensive
assessment, migrants arereferred to relevant service
providers to address short,medium and long-term
needs and to appropriate
authorities to facilitate caseresolution.
Following an initial piloting
stage, the Guidelines havebeen rolled out across Zambia. More than 200 front-line
officers have received training on the Guidelines andNRM.182 Initial monitoring
and assessment has showna strengthened capacity offront-line officers and service providers to: (a) identify
various vulnerable migrants
using the Profiling Form; (b)refer migrants to relevant authorities and service providers; (c) provide appropriate
protective services; and (d)coordinate and collaborate
with stakeholders to improve
protective services for vulnerable migrants in Zambia.

37

THERE ARE ALTERNATIVES (REVISED EDITION)

Incorporating legal obligations into ascreening and assessment process ensuresthat decisions regarding detention arelawful, protecting both individuals andthe State from the harmful consequencesof unlawful or arbitrary detention.

6.2 Health, identity and security checks
A central component of any screening andassessment process is having standard
government health, identity and security
checks. These three assessments are vital for
managing and regulating the entry and exit ofpeople from a territory. A number of countries
have introduced streamlined identity, healthand security checks to minimise the use or
period of detention during these processes.

6.2.1 Health checks
A medical assessment allows the government to check for any health issues, including
communicable diseases such as tuberculosis.183 Health checks enable the government to identify and treat key health issues
and to protect public health. They can also be
used to uphold the health of detained populations by ensuring contagious diseases are
not introduced to detention centres. Checks
can also ensure the screening out or releaseof seriously ill people from detention. Healthchecks are sometimes used to limit any unfair
burden of national health care systems;
however this must be exercised with caution
to ensure that individuals who are seriously ill
do not face inhumane suffering should they
be denied medical attention or face deportation without the prospect of appropriate
medical care on return.184 Sweden offers healthchecks to asylum seekers on arrival but thisis only mandatory if there are visible signsof illness that may impact public health.185

38

6.2.2 Identity checks
Identity checks establish the key elementsof a person’s identity such as their name,country of origin, country of citizenship anddate of birth. This is sometimes easily established when identity and travel documents,
such as passports, concur with all otherevidence. However, establishing identity
can prove difficult if the person has been
forced to flee a country of persecution
without original documentation or if they
are attempting to enter under an assumed
name.186 This research cannot speak to theseissues; however, the inability to provide documentation establishing identity should not
be a reason to detain, as detention in thesecircumstances would arguably violate thenorms of necessity and proportionality.

The inability to provide
documentation establishing identity should not
be a reason to detain
Further, evidence shows asylum seekers are
predisposed to cooperate with immigration procedures while their status is being
determined, and therefore detention cannot
be considered necessary on the basis of apresumption of absconding.187 Indeed, many
countries house asylum seekers in open
accommodation centres while undertaking
identity confirmation including Sweden,
Finland and Germany, while Canada directs its
officials to release individuals who are cooperating with efforts to establish their identity
but whose identity cannot be established.188

THERE ARE ALTERNATIVES (REVISED EDITION)

6.2.3 Security checks
A security check establishes that the individual concerned does not pose a threat tonational security or public order. A history ofparticipating in terrorist networks or humanrights abuses may, among other things,
preclude entry into the territory if it is considered an issue of national security or publicorder. Countries that include security concernsin risk assessments include Australia, theUnited Kingdom, the United States (Box 12)

BOX 12and Hong Kong (Box 14) Such checks should
be undertaken as soon as possible and ina timely manner to ensure detention is notprolonged unnecessarily. Individuals whoare cooperating with efforts to undertakea security check should not be forced toendure prolonged detention. Individuals
who are considered a security risk throughthis process must have an opportunity tounderstand the basis of that assessment andhave the chance to provide further informa-

SCREENING AND ASSESSMENTIn March 2013, US Immigration and Customs Enforcement (ICE) deployed a new
Risk Classification Assessment instrument nationally.
This is the first automatedsystem of individualised
assessment used to assist
placement determinations.
The Risk Classification Assessment tool was developed in response to criticism
over the increasing numbersof people being unnecessarily detained or detainedfor prolonged periods. Suchdetention was taking place
without uniform, individualised assessment or determination that their detention
was proportionate or justified, including whether they
were a danger to society, ora flight risk.189
The Risk Classification Assessment tool is used during
the detainee intake process
to determine (a) whether aperson should be released
or detained, (b) if released,

what levels of supervision
should be placed on the individual, and (c) if detained,
the individual’s custodyclassification level. The tool
guides ICE officers througha multi-staged process ofdecision-making, startingwith a legal assessment of
whether the individual issubject to mandatory detention, or whether detention
would otherwise be required.
In respect to the latter, theRisk Classification Assessment tool uses objectiveclassification scales andmathematically weighted
factors/algorithms to score
the risk that an individual
poses to the community.
Persons who do not posea risk to the community
and who are eligible to bereleased are then assessedusing additional factors thatscore the risk of absconding. The results determine
the type of alternative best
suited to the individual.

THE UNITED STATESThe Risk Classification
Assessment tool requires
ICE officers to screen for
the existence of family
ties, immigration history
including compliance withprevious immigration decisions, as well as medical,
mental health and othervulnerability triggers at theoutset. It includes prompting
questions for a number ofvulnerability triggers including disability, advanced age,pregnancy, nursing mothers,
sole caretaking responsibilities, mental health issues,and victimisation, including
aliens who may be eligible
for relief under the Violenceagainst Women Act, survivors of crime, or survivorsof human trafficking.190 It is
designed to take eight minutes to complete. It remains
to be seen how effective thetool is in a context whereconditions are applied rigorously and there is a historicalpredisposition to detain.191

39

THERE ARE ALTERNATIVES (REVISED EDITION)

tion to defend their claims before an independent body, with legal advice. The assessment of risk associated with migrants who
have completed a prison sentence is included
as an issue of character in Section 6.4.5.

Figure 3: Assessing vulnerability

Elderly and childrenAgeparticularly unaccompaniedand separated minors.

6.3 Vulnerability
An assessment of vulnerability can ensure
management strategies are sensitive to theparticular needs of vulnerable individuals
and incorporate appropriate support. Suchan assessment can identify those individuals who require additional support to meettheir basic needs or undertake daily activities, as well as identifying those who require
extra assistance to understand and negotiate
migration procedures and to meet the conditions of their release. Particularly vulnerable individuals may have fewer personal
resources to cope with the detention environment and may be at higher risk of harm.192 In
some countries it has been established thatcertain vulnerable individuals should never
be detained, as discussed in Section 4.4 .

Women at risk, nursing

Gender /Diversity

mothers and pregnant womenand those at risk due to sexual
orientation or gender identity

Physical and mental ill health

Healthor disability and psychosocial
and welfare factors.

Refugees, asylum seekers,
stateless persons, trafficked

Protection
needs

persons, survivors of tortureand trauma and of sexual andgender-based violence.

6.3.1 Age
Vulnerability assessments identify the ways inwhich an individual’s position in society places
them in an unequal relationship with others.
Work on this concept focuses on the contexts
that create vulnerability by framing assessments around what people may be vulnerable
to.193 However, most vulnerability assessments
currently in use identify certain categories ofpeople as being vulnerable based on particularpersonal characteristics.194 For the purposesof this report we will discuss four areas whichhave traditionally been used to identify vulnerable individuals, as seen in Figure 3. These are:Vulnerability assessments should identify
those individuals whose age places themin a position of vulnerability. Economic,
political and personal power in society isoften dependent on age. Elderly people who
are frail or no longer able to work are often
dependent on others to provide for their basic
needs.195 Policies in Canada 196 and China both
require that detention is avoided or used
as a measure of last resort for the elderly.
Similarly, children mostly rely on adults toprovide for their basic needs, and should never
be detained, as discussed in Section 4.4 .

Æ AgeÆ Gender / Diversity
Æ HealthÆ Protection needs

40

6.3.2 Gender / Diversity
Gender, gender identity, sexual orientationand visible markers of diversity can create
vulnerability in some contexts. Women atrisk, nursing mothers and pregnant womenTHERE ARE ALTERNATIVES (REVISED EDITION)

are likely to be more vulnerable in a detention
setting. Sexual orientation and gender identity
can also create vulnerability, particularly in a
detention context.197 Identifying these issues
during a vulnerability assessment can assist in
ensuring management choices include a safe
living environment, as seen in Box 18 Belgium.
UNHCR Detention Guideline 9 offers further
guidance on this in relation to asylum seekers.

6.3.3 HealthThose with serious issues impacting on
their health and wellbeing may be vulnerable during a migration status determination process. Those with physical or mental
health issues that compromise their independence may need assistance with daily care andBOX 13

with obtaining medical attention. Such assistance can meet duty of care obligations while
also ensuring a person’s ill health does notinterfere with their ability to meet the requirements of their placement in the community.
For instance, someone who is suffering froma chronic illness may not be physically able
to maintain regular reporting requirements
despite a willingness to remain in contact withauthorities.198 Additional psychosocial factorsthat impact wellbeing and create vulnerability include a serious breakdown in family
relationships, those experiencing violenceor abuse or children with serious behavioural problems.199 Countries that screen
and assess for health vulnerabilities include
Hong Kong (Box 14) and Australia (Box 16).

PROHIBITING THE DETENTION OF VULNERABLE INDIVIDUALSFor the first time, Turkey
has introduced a comprehensive framework for thegovernance of migration.
The Law on Foreigners andInternational Protection(LFIP) was ratified by theTurkish Parliament on 4 April
2014. It introduces important
protections and procedural
safeguards in administrativedecision-making for persons
seeking international protection. It also excludes certain
vulnerable individuals fromdetention and introducesalternatives into law for the
first time.
Under the LFIP, detention
is prohibited for unaccompanied minors seeking
international protection, 202
victims of human traffick-ing, international protection
status holders, international
protection applicants (except in set circumstances)and stateless individuals.
The LFIP also exempts a
number of vulnerable individuals from deportation
orders and, therefore, detention. This includes individuals
who are at risk of torture/
ill-treatment if expelled; areunable to travel due to poor
health, age or pregnancy; require medical treatment thatcannot be obtained in the
country of origin or return;or are victims of serious psychological, physical or sexual
violence, until treatment iscompleted.
For such vulnerable individuals, humanitarian residence

TURKEYpermits are issued (withspecific permits for victimsof human trafficking). Thesepermits can also be issued
to individuals for whom adeportation order has been
issued but who cannot bedeported (e.g. because theircountry of origin refuses to
accept their return). Permit
holders may be required toreside at designated reception and accommodation
centres and to report toauthorities at specified periods. The permit includes aforeigner identification number, which is used to accesshealth care, education andlegal services. Asylum seekers may live with freedomof movement if they residein their allocated ‘satellite
city.’203

41

THERE ARE ALTERNATIVES (REVISED EDITION)

An assessment of health and wellbeing isparticularly important in detention cases, asmany detainees have limited access to appropriate medical care especially for serious orchronic conditions. In addition, detention
may be a core contributing factor to theonset and/or deterioration of some healthconditions, as discussed in Section 1.3.3.

Æ Anticipated length of time until caseresolution

Æ Intended destination
Æ Family and community ties
Æ Character including compliance to date
Æ Belief in the process
6.4.1 Stage of migration process

6.3.4 Protection needs
International human rights agreements
highlight the responsibility of States to protect
vulnerable individuals on their territory. Amongothers, these agreements protect children,
asylum seekers and refugees, survivors of
torture, victims of human trafficking, womenand stateless persons. 200 Regional agreements in Latin America and Africa offer additional protection to migrants who have been
forced to leave their country for legitimate
reasons. 201 In addition, those who have experienced torture, violence or trauma may be more
vulnerable to the harmful effects of detention
and at higher risk of re-traumatisation by being
placed in a prison-like setting. Vulnerability
assessments will identify those individuals
with protection needs and ensure they accessasylum or other protection processes and areplaced in an appropriate environment while
their status is assessed. See also UNHCR’s
Detention Guidelines for applicable criteria andstandards relating to asylum seekers as well as
Box 8 Spain, Box 13 Turkey and Box 21 Sweden.

6.4 Individual case factors
There are a range of factors relating to theindividual and their situation that may be
relevant when considering what supports
or extra conditions might be needed inorder to manage them appropriately in acommunity setting. Some of the key areas
to incorporate in this assessment include:Æ Stage of migration process42

It is important to understand what stage an
individual has reached in the migration process
in order to place them in an appropriate
setting. People who are still awaiting a primarydecision on their visa application are in very
different circumstances to those who havebeen refused a visa at all levels and have nofurther legal avenues to remain in the country.
One area of consensus is that asylum seekers
and irregular migrants rarely abscond while
awaiting the outcome of a visa application,
status determination or other lawful process,if in their destination country. Statistics fromthe United States’ Department of Justiceshow that over 85% of asylum seekers who
were living independently in the community
without restrictions on their freedom of
movement appeared for their hearings withan Immigration Judge, without any extra
conditions being imposed. 204 Such results
indicate monitoring or other conditions may
not be necessary for many people who arestill engaged in assessment procedures.
It is important to note that this factor does
not determine compliance alone, as several
countries have successful programs working
with people in a community setting who arefacing return or deportation, as seen in Box
10 Canada, Box 16 Australia, Box 17 the Netherlands, Box 18 Belgium and Box 21 Sweden.
However, these programs take the stage ofthe migration process into account and makeuse of additional supports and conditions
to assist these individuals to work towards
independent departure whenever possible.

THERE ARE ALTERNATIVES (REVISED EDITION)

6.4.2 Anticipated length of time
until case resolution
The anticipated length of time until a migration
process is complete or until deportation
can be achieved is also an important factor
when considering alternatives, as seen in
Box 1 Argentina, Box 10 Canada and Box 14
Hong Kong. Detention cannot be justified
when it is clear that a visa decision or deportation will not be achievable in a reasonable amount of time, given that the likelihood of psychological harm escalates
the longer someone is detained. 205

Certain migrants are at
greater risk of unnecessary, prolonged orrepeated detention when
they should instead beplaced in community alternatives
Certain migrants are at greater risk of unnecessary, prolonged or repeated detention
when they should instead be placed incommunity alternatives, including: statelesspersons; migrants whose countries of origin
or domicile are unable or unwilling to issue
travel documentation; migrants facing deportation to a country which is in turmoil due
to war, violent conflict or natural disaster;and migrants who cannot be returned
due to a serious medical condition. 206

6.4.3 Intended destination
if they are in their destination country andawaiting the outcome of a visa application, status determination or other legal
process. It stands to reason that absconding
is unlikely while there is a real prospect ofgaining legal status in a preferred destination, as remaining engaged in the processensures the best chance of obtaining avisa or other legal grounds to remain.
This factor is not related to whether thehost country itself is categorised as a transit
or destination country. Instead, it is more
effective to establish whether that country
is the intended destination of each individual. For instance, one study in the UnitedStates assessed compliance amongst a groupof asylum seekers released from detention.
It found that those individuals who had
said Canada was their intended destination were least likely to appear at their immigration hearings. 207 The categorisation of
the United States as a ‘destination country’
was not of consequence to those individuals who were intent on reaching Canada.

6.4.4 Family and community ties
Many people are driven by their commitment to their family and this can shapemigration journeys in particular ways. Families
with young children are generally considered to be less likely to abscond, especially when engaged in social systems suchas schooling, 208 as are those individuals withfamily in the community who provide an extra
source of support and point of contact. 209
Those who have left family behind may risk
working unlawfully in order to send remittances to loved ones struggling overseas.
Despite these concerns, many families
comply with difficult restrictions for long
periods in the hope that they will eventually be reunited in a safe country. 210
Ties to the local community are also importantwhen assessing the individual case. 211 Local
community ties increase the likelihood that theperson will remain in the local area or in regularcontact with their networks. Factors used toassess these ties include whether the person
has close family or relatives, strong social
networks including membership in a religiousorganisation, a stable address, employ-

43

THERE ARE ALTERNATIVES (REVISED EDITION)

ment, an ongoing course of study or training
and ownership of property or business.
Length of time living in the community
may also be an indicator in this respect.
Notwithstanding these existing ties, effective
ties can be established quickly for new
arrivals who do not have existing connections but who join community or religiousorganisations that provide support and/or case management on release.
Family or community ties are often
assessed as part of a bond or supervision program, as discussed in Section
8.2.3. See also Box 14 Hong Kong, Box 24
the United States and Box 25 Canada.

6.4.5 Character including compliance to date
As in the criminal justice setting, many
countries rely on evidence of a person’s
character, including their previous compliance with authorities, when considering themost appropriate management option. Past
behaviour can be a good indicator of future
choices and character assessments can helpin establishing reasonable expectations.

Irregular migration status
in and of itself does notindicate a likelihood of
absconding
For instance, someone who has a history ofcooperating with authorities may be reasonably expected to continue to behave in a trustworthy manner until evidence to the contraryarises. Evidence of previous cooperation withauthorities may include complying with authorities while completing a community service or
prison sentence. Individuals who have served
a sentence for a crime can be supported to44

reach case resolution in the community andshould not be automatically excluded from
community placement. 212 Countries that makeuse of such assessments are able to identify
those individuals with a history of non-compliance and introduce more stringent conditions to mitigate risk of absconding, suchas those outlined in Section 8.2 Conditions
or limited restrictions in the community.
It should be noted that irregular migration
status in and of itself does not indicate alikelihood of absconding. In addition, theuse of fraudulent documents when fleeing
persecution or other serious harm should
not be considered an issue of character.
Character assessments including previous
compliance with conditions of release or
departure are factors used to assess flight risk
in, inter alia, Australia Box 16, Canada Box 25,
Hong Kong Box 14, South Africa, the United
Kingdom and the United States Box 24.

6.4.6 Trust in the process
Evidence from the IDC’s program of researchshows that asylum seekers, refugees andmigrants are more likely to accept and comply
with a negative decision on their visa application, status determination or other immigration
process if they trust they have been througha fair process; they have been informed andsupported through that process; and they
have explored all options to remain in the
country legally. 213 In contrast, those individuals
who believe their case has never been heard
properly or who have felt that the process
has been unfair are more likely to appeal anegative decision, find another avenue toremain in the country, or undertake secondary
movement. 214 An assessment of an individual’s belief in the process will help identify
those who may require additional supports
to achieve a sustainable case resolution.

THERE ARE ALTERNATIVES (REVISED EDITION)

Full and timely legal advice and case management throughout the process are key mechanisms to support this outcome. However,some people will not have faith in the bureaucratic process they have been through, suchas if they know of a similar case that hasreceived a different outcome 215 or if they arefacing serious threats to life or liberty on
return that fall outside protection mechanisms. 216 In these cases, it is particularly
important that caseworkers and lawyers
recognise these concerns, by exploring all
options to remain in the country legally. If nofurther options remain, it may be necessary
to explore alternative solutions, such as
removal to a third country, to a different

BOX 14

region of their country of origin or provisionof more substantial repatriation support that
may assist the person to overcome theirdisbelief at a negative decision and avoid
the trauma and force involved in deportation. For more information on support whileworking towards removal, see Section 7.2.

6.5 Community context
The final element of screening and assessment is to identify and assess what options
are available in the community context tosupport individuals. Contextual factors, which
are often outside the control of the individual,
may have a significant impact on their ability

IDENTIFYING INDIVIDUALS WHO DO NOT NEED TO BE DETAINED

Authorities in Hong Kong
SAR undertake screening
and assessment of irregularmigrants when considering
detention. 217 Detention policy
states that “[i]n determining whether a person should
be released or detained, theDirector/Secretary will take
into consideration all the
relevant circumstances of
the case, including:Æ Whether the person’s
removal is going to
be possible within areasonable time;Æ Whether that person
concerned constitutes athreat / security risk to
the community;Æ Whether there is any
risk of that person’s
absconding and/or (re)offending;Æ Whether that person’s
identity is resolved orsatisfied to be genuine;Æ Whether that person has
close connection or fixed
abode in Hong Kong; andÆ Whether there are othercircumstances in favourof release.”218
After a short period ofdetention, most vulnerable
individuals including asylum
seekers and torture claimants219 are released on theirown recognisance. This may
include conditions of selfsurety and minimal reporting
requirements. Asylum seekers and torture claimants areissued with recognisancepapers documenting theirstatus in the community. A
government-funded project
run by a non-government

HONG KONG

organisation arranges housing in the community andprovides food, clothing andmedicine. Using a case management approach, workers
assess each case on intake
and develop an appropriate
program of response, in linewith the resources available.
Vulnerable clients, such as
unaccompanied minors, aregiven priority and extra support as able. The program
costs HK$109 per person per
day and has a compliance
rate of 97%. 220 Caseworkers
are not responsible for compliance matters, althoughknown breaches must be reported to authorities. Other
non-government organisations in Hong Kong provide
pro bono legal advice andsupport services, whichstrengthen this community
context.

45

THERE ARE ALTERNATIVES (REVISED EDITION)

to maintain their commitments with authorities
and to stay engaged with the case resolution
process. Community context can be assessed
at a systemic level, to identify existing infrastructure and mechanisms that may beengaged, as well as at an individual level,
to make case level decisions about support
needs and placement options. For instance,
this can include ensuring that housing,nutrition and other minimum standards
are going to be met. If not, then authorities
may need to arrange additional supports.

Governments can invest
in the community context
to strengthen support
structures and mitigate
concerns
Assessing the community context assists decision-makers in deciding on the best placement
options available for an individual. It enables
the individual being screened and assessed
to be placed into the most appropriate andeffective alternative to meet their needs andrights and to allow them to stay engaged withimmigration processing. This does not need
to be labour intensive: successful assessment
includes processes to identify the options

46

available, and a referral process to subsequently place them in that measure. The key
is to streamline such processes with clear
identification and referral policies, practical
tools, information and multi-stakeholder
collaboration, as seen in Box 11 Zambia.
For governments interested in developing or
expanding community options, it is important
to assess at a systemic level what mechanisms
are already available in the community that
could be used to support and manage individuals outside of detention – even if this is not
the current primary purpose of those mechanisms. For example, the expansion of nationalchild protection programs to include unaccompanied children, such as in Hungary (Box 7).

THERE ARE ALTERNATIVES (REVISED EDITION)

7. Case management

The majority of successful alternatives identified during this research rely on casemanagement to work towards case resolution, while maintaining high levels of compliance with conditions and restrictions whilein the community and improved health andwellbeing. Case management centres onunderstanding and responding to the uniqueneeds and challenges of individuals and theircontext. Case management is designed toempower individuals to resolve issues independently and link with additional supports
when needed. Case management relies on
identifying all the needs and strengths of
the individual; addressing those needs andbuilding upon the strengths as able withavailable resources; and building resiliencein the individual to deal with the range ofoutcomes before them. 221 Case resolution, incomparison, focuses solely on the outcomeof the migration case. This responsibility sitswith immigration authorities. However, casemanagement can contribute to timely caseresolution by identifying barriers to migration
outcomes and working on shared solutions.
Case resolution relies on a wide range ofvisa, residency and departure options.

7.1 Case management and support
Case management is a comprehensive
and systematic service delivery approach
designed to ensure support for, and acoordinated response to, the health andwellbeing of people with complex needs. 222
Case management centres on under-

47

THERE ARE ALTERNATIVES (REVISED EDITION)

standing and responding to the capacities, needs and challenges of individuals andtheir context, including personal resources,
vulnerability, protection and risk factors.

Case managers cancontribute to timely caseresolution by identifying legal, practical andpersonal barriers to likely
outcomes and working onshared solutions.
Case managers form working relationships with individuals and families in order
to empower them, enhance their wellbeing
and problem-solving capacities, resolve
outstanding issues, provide information on
how to obtain services and resources in theircommunities, and work towards the protection of people who are not in a position
to do so themselves. Case managers are
generally social workers, psychologists orother human services professionals. 223
Case management is described below in moredetail in the context of migration governance. Practical examples are found in Box 7
Hungary, Box 8 Spain, Box 10 Canada, Box 11
Zambia, Box 14 Hong Kong, Box 15 Two Case
Studies, Box 16 Australia, Box 17 the Netherlands, Box 18 Belgium and Box 21 Sweden.

7.1.1

Case management with migrants

Applied in the context of migration, casemanagement is a strategy for supportingand managing refugees, asylum seekers,
stateless persons and irregular migrants inthe community or in detention, while they are
working towards achieving case resolution. 224
The case manager role differs to that of an
immigration officer, bureaucrat or guard. Casemanagers do not make decisions on people’s

48

immigration cases or undertake compliance enforcement. Rather, the case manager
forms an essential link between the individual, authorities and the community. Casemanagers can be particularly important for:

Æ Promoting informed decision making
by both the government decision-makerand individual in question. Case managers
can ensure case-by-case, initial andongoing assessments of the risks, vulnerabilities and needs of an individual that
may impact on their capacity to remain
engaged with the authorities and comply
with any conditions or restrictions. In
providing such early and ongoing intervention, case managers can help reduce
instances of unnecessary immigration
detention and ensure placement decisions,
including any conditions or restrictions,are continually re-evaluated.

Æ Case managers can also facilitate
an individual’s timely access to all
relevant information, options, rights
and responsibilities. They can help
ensure that individuals have an understanding of their immigration status,
legal and administrative processes, andthe options available to them in theircountry of origin or another country.
The more transparent the process, themore likely a person is to feel that all
claims have been heard and considered,and to understand what their options
are. This helps to promote an individual’s trust in the system, and belief thatthey have been through a fair process.

Æ Promoting timely and fair caseresolution. Case management can
assist in achieving faster and moresustainable immigration decisions,building confidence in the determination process and reducing unmeritorious
appeals. This in turn can improve final
immigration outcomes, be that integration
for individuals granted status, or voluntary
or independent departure for refused

THERE ARE ALTERNATIVES (REVISED EDITION)

individuals. For example, with a consistent,
trusting relationship between casemanager and individual, the individual
may disclose critical case information that
authorities may not yet be aware of. With
client consent and transparent communication for the purpose of informationgathering, case managers can work with
the individual, lawyer and immigration
authorities to ensure this is included as
early as possible, to try and prevent theneed for case review later. In addition,case management assists with preparing
clients and establishing realistic expectations on immigration decisions, including
exploring independent departure options
if refused.

Æ Promoting coping and wellbeing byfacilitating access to community services
and support networks. Where a personwith an identified vulnerability (such asa health concern or torture experience)is supported during status determination, better outcomes for the individual,
community and government are achieved
regardless of the immigration outcome.
For example, if a person is granted
refugee status or a visa, the support
received could mean that they are better
placed to make a meaningful contribution to society. Alternatively, the person
may be in a better position to returnhome and resettle if their case is refused.
Strategies used by case managers inworking with individuals facing removal
include exploring legal options to remain,
third country options, relocation toanother area within the country of origin if
safe to do so, and repatriation assistance.
Case managers also have the flexibility
to respond to barriers to return. This
may include stabilising health conditions,obtaining travel documents and/or
helping to establish contact with family,
friends or support organisations in the
country of return.

7.1.2 The case management process
Screening, assessment, case planning, intervention and ongoing review are the key
steps in the case management process.
This process is visualised in Figure 4
and described in more detail below.
Figure 4: The case management process

Process
1.
Screening

5.
Case
ClosureOutcomes

2.
Assessment

Informed decision making
Timely and fair case resolution
Improved coping and wellbeing
Avoid unnecessary and wrongfuldetention

4.
Intervention

Regu

3.
Case
Planningla r R e vie

w

1. Screening
It is recommended that screening shouldtake place as early as possible, at thetime of irregular arrival, detection in
the community with irregular status, or
lodging of an asylum or protection claim.
Where an indication of vulnerability orrisk is present, the individual should bereferred for comprehensive assessment.

2. Comprehensive assessment
Following an indication of risk or vulnerability
during screening, assessment provides a basis
for further decision making. Through consideration of all systems and factors impacting
on the individual, a case manager can identify
and address issues regarding basic needs and49

THERE ARE ALTERNATIVES (REVISED EDITION)

protection, whilst also considering systemic
and policy issues including the government’s
need to manage a person’s immigration status.
The case manager will engage with the client
and all key stakeholders, including immigration authorities, health professionals, legal
counsellors and family members to understand the client’s vulnerabilities, strengths andrisks and what kind of support the client may
need to ensure wellbeing and timely case resolution. This may lead to a recommendation
about appropriate management responses.

and client, individuals are supported to
explore all possible immigration outcomesfrom the time of their case being opened.

Regular and ongoing review
As work and relationships develop, thecase manager will continuously monitor thesituation so any emerging needs or change
in situation is identified and responded toaccordingly, working towards a case outcome.

5. Case closure
3. Case planning
Understanding the needs and priorities of
the individual, and the individual’s understanding of their situation, may demonstrate
what action is needed to assist an expeditious case resolution. It may be legal assistanceto lodge a thorough refugee claim. It may becounselling to deal with experiences of tortureor trauma. Information gathered throughout
the assessment process is therefore considered and analysed, goals set, prioritised andaction plans put in place. The case manager
and individual together develop a detailed
case plan, outlining necessary steps to reachgoals, suggested timeframes, and persons
responsible. Consideration and planningfor practical necessities such as housing,health care, livelihood, social support needs,
reporting requirements and logistics is critical.

The case is closed when the individual
departs the country or is granted the rightto remain. In both instances, referral toanother service provider for ongoing assistance should be considered, if required.

7.1.3 Foundations of effective
case management
Case management builds on the foundationsof:Æ Early intervention
Æ Face-to-face, one-on-one contact
Æ Regular assessment and review
Æ Confidentiality and information
management

Æ Consulting key stakeholdersÆ Trust, building rapport, consistent relationships and information provision

4. Intervention
The agreed case plan is implemented, andshould ensure communication, education,
advocacy and facilitation of appropriate
service involvement, assisting individuals tomaintain a link to immigration authorities. Fullengagement with the individual and all key
stakeholders is critical in resolving immigration cases and supporting vulnerable individuals: facilitating regular case conferences
can be a productive intervention. Using theongoing relationship between case manager

50

Æ Explore all available options to empower
individuals to make decisions

Æ Clear roles and expectations
Æ Resources and options for individuals as
needed
7.1.4 Implementing case management
Case management is implemented in a
number of ways, ranging from ‘triage’ systems
designed to deal with large numbers tointensive, individual casework with complex
cases. Many migrants will be able to work toTHERE ARE ALTERNATIVES (REVISED EDITION)

case resolution independently without theneed for additional support. However, individuals with high level needs or complex circumstances may require more intensive casemanagement. Caseloads will vary depending
on assessed need and complexity. Reassessments are undertaken by case managers
at critical points, such as decisions on the
migration or asylum case, at a final refusal andBOX 15prior to decisions to detain or remove. Casemanagers may provide training and advice
to enforcement and compliance units, and/or maintain oversight of individual health andwellbeing within these programs. Several
countries have introduced national casemanagement programs after first piloting
the approach at a small scale, including
Australia (Box 16) and Belgium (Box 18).

CASE MANAGEMENT IN THE MIGRATION CONTEXTTWO CASE STUDIES

Case study 1: Case management with families pending removal
Cecilia is a mother with sonsaged seven and 16.
Cecilia is a mother with sonsaged seven and 16. 225 She
came to Belgium from Brazil
without documents to join her
sister. After five years in Belgium, Cecilia was detained andsent back to Brazil. However, amonth later she made her way
back to Belgium. Cecilia wasrefused legal residential status
and she and her children wereplaced in the open family units
described in Box 18, pending their removal. Cecilia wasinitially assessed as a risk to
abscond, as she was adamanton staying in Belgium.
Cecilia’s case manager sought
legal advice to ensure allher options to remain in the
country legally had been fully
explored. The legal advisor
suggested Cecilia return toBrazil and apply for a visa inorder to come and work legallyin Belgium. The case manager
ensured Cecilia knew how toapply for a visa from Brazil
and engaged the International
Organization for Migration towork with Cecilia to explore
possibilities for the family’s
return.
Through this process, Cecilia
finally agreed to return independently to Brazil with herfamily.

Case study 2: Case management and case resolution
Ravi came to Australia asa student, later lodging
an application for asylum
based on fear of reprisal for
his involvement in student
politics in India. 226 Ravi wasfound not to have protection
concerns and, following afailed appeal, was required todepart Australia. Ravi refused
to depart, citing his ongoing
fear, and threatened suicide
should he be forced to return.
Ravi’s case manager explored

his fears and expectations
around the right to remain in
Australia. Whilst Ravi did holdsome fears related to his safety, he also had an overwhelming sense of shame of facing
his family without savings.
Ravi’s case manager sought
independent legal advice to review Ravi’s case and outline his
realistic chances of remaining
in Australia. The case manager
also negotiated an additional
three months, with work rights,
while Ravi explored these

options. He was also referred
to a counsellor for additional
support.
During this time, Ravi managed
to save some money so that hewould not be destitute on arrival. On receiving legal advice
that he had no further grounds
to remain, the case manager
explored his return options
with him. Ravi consequently
departed Australia independently.

51

THERE ARE ALTERNATIVES (REVISED EDITION)

7.2 Case resolution
Case resolution is not the same as casemanagement, although they often overlap.
Case resolution is focused on finding apermanent or temporary migration outcome.
While this responsibility ultimately sits withimmigration authorities, case managers cancontribute to timely case resolution by identifying legal, practical and personal barriers
to likely outcomes and working on sharedsolutions. Case resolution can draw from a
range of solutions including various visa anddeparture options. Examples of case resolution options are provided below and inBox 15 Case studies, Box 19 Options for
those who cannot be deported and Box
20 Protecting victims of trafficking. 227
The following sections focus in particular on
the challenges of resolving complex casesand on preparing migrants for departure.
Some migration cases require extra work toachieve resolution due to complex migration

BOX 16

Æ Case resolution for complex cases
Æ Preparing for departure
7.2.1 Case resolution for complex cases
In complex cases, individuals are less able
to focus on resolving their migration status
due to multiple and complex issues thatdemand their attention and engage their time

INTENSIVE CASE RESOLUTION WITH COMPLEX CASES

In Australia, vulnerable migrants with complex needs
are referred to the Status
Resolution Support Services(SRSS). As of October 2014,
the SRSS replaced four
previous support programs.
The SRSS is designed toprovide extra support toindividuals as they engage
with immigration authorities.
The guiding principles of the
SRSS are to involve clients in
identifying and addressing
their own needs and buildingon their own strengths. The
three broad areas of service
provision are orientation,

52

issues, the case becoming stalled due to abureaucratic issue (such as when there is
no standard policy to deal with people whoare stateless), severe client vulnerability or
due to challenges in achieving departure.
Intensive case resolution work can be used
as a mechanism to assist in resolving an individual’s migration status while they remainin the community. Allocating extra resources
to complex cases identified through thescreening and assessment process can assist in
resolving a case while an individual remains in
a community setting. The intensive case resolution strategies included in this report are:accommodation and casemanagement. 228
This service is built on an
original pilot program witha group of clients with highlevel welfare needs and an
average of more than six
years in Australia. Despite
these barriers, the pilot
achieved significant outcomes. Of 918 people assisted between March 2006 andJanuary 2009, 560 people(61%) had a final outcome.
Of this group, 370 people(66%) received a temporary
or permanent visa to remain,
114 people (20%) departed

AUSTRALIA
independently, 37 people(7%) absconded, 33 people(6%) were removed by the
Department and six people(1%) died. 229 This equates to
a 93% compliance rate and a
60% rate of independent departure amongst refused applicants. The program cost aminimum of AU$38 per daycompared with a minimum of
AU$125 for detention. 230 The
government has found that:“[d]rawing on appropriate
services and focusing on addressing barriers is proving
a successful mix for achieving sustainable immigration
outcomes.”231

THERE ARE ALTERNATIVES (REVISED EDITION)

and energy. Complex cases vary widely but
many involve issues of vulnerability (suchas serious illness or trauma), an inability tomeet basic needs (resulting in homelessness and destitution), risk of self-harm or
suicidal ideation, or difficulties in departingthe country. Providing extra resources towork with individuals to address the variety ofissues affecting their migration situation canbe an effective way of dealing with barriers tocase resolution, as seen in Box 16 Australia.
7.2.2 Preparing for departure
For individuals found to have no legal basis
to remain, return preparation and counselling programs have been an effective
mechanism to support and facilitate independent or voluntary departure without theneed for detention and deportation. Returnpreparation and counselling programs can beeffective if a strong case management modelallows workers to respond to the whole of theperson’s context and to ensure that the individual has explored all options to remain in
the country legally (see Box 18 Belgium).
States are increasingly choosing to incorporate voluntary return into migration governance systems. There are a number of programs
designed to support a person to prepare forvoluntary or independent departure while theyremain in the community, including the Assisted
Voluntary Return and Reintegration (AVRR)
programs run by the International Organization for Migration. 232 These programs include
pre-departure assistance, return/transit assistance and post-return support for reception
and reintegration. This practical support can
include organising and paying for flights,
making contact with families or friends, andplanning for life on return. Such programs
are extremely useful for migrants who wish
to return but find themselves stranded forreasons such as a lack of finances or lack travel
documents. Assisted return programs appear
to be more effective at achieving independent
departure when integrated with case management throughout the migration assessment

process, rather than being introduced after
a period allowing for independent departure
has elapsed without any support (see Box
17 the Netherlands and Box 21 Sweden).
In addition to providing practical support, suchprograms can encourage individuals to exit
the country independently by highlighting thebenefits of legal return, as opposed to having
to contend with the stigma of deportation andexclusion from future return to the country.
The effectiveness of such ‘return counselling’is likely to depend on the individual’s situationand their trust in their caseworkers. One US
study, described in Box 24 found that departureplanning particularly increased appearance
and independent departure for undocumented
migrants and criminal non-citizens, as thesegroups wanted to be able to legally re-enter thecountry in the future. In addition to other mechanisms, the program supported independent
departure by obtaining travel documents,
buying tickets, explaining how to confirm
departure with the authorities and retrieve any
bond deposit after departure. 234 Similarly, the‘Failed Refugee Project’ in Ontario, Canada
provided return counselling and financial
support to asylum seekers who had exhausted
all avenues of appeal. This project successfully effected removals without resorting todetention in 60% of cases within the 30 day
period for departure. 235 As seen in the Case
Study 2 (Box 15), securing short term work
rights can be integral to enabling independent
return. Contrasted against this, prolonged
detention or unnecessary detention pending
removal has been found in some contexts tobe counterproductive to government objectives of achieving compliance with immigration
outcomes, including returns (see Section 1.3.2).
Refused asylum seekers may have powerfulreasons to fear return which are not allayed
by standard reintegration support packages,
and particular care must be taken whenworking with this group. 236 Individual assessment and case management can assist
authorities in determining the best pathway
to return for these different populations.

53THERE ARE ALTERNATIVES (REVISED EDITION)

Resolving migration status
The resolution of a migration case takes many forms.
Case resolution ranges from regularisation, protection
and other humanitarian interventions, other permanent
migration solutions (such as family reunification, marriage),
medium term options (such as study or temporarywork), short-term provisional visas, departure to a third
country, departure with a plan for lawful re-entry, return
to a different area of the country of citizenship, assisted
voluntary return and other departure options.

BOX 17

MAKING PLANS FOR LIFE AFTER RETURN

In the Netherlands, an NGOrun programme assists persons who have been issued
with a deportation order orhave overstayed their visa
to return to their country oforigin. 233 The program, whichruns for a minimum of 13
weeks, is based on the premise that people should be
empowered to prepare fordeparture from the Netherlands, and that the coercive
environment of detention is
not conducive to overcoming real or perceived barriers
to return.
Coaches, or caseworkers,
build trust with individuals

54

and help them to identify
and overcome obstacles
to return. The program
focuses on empowerment
and restoring the independence of participants bybuilding up the skills andconfidence necessary for
return. The program includes
business and skills training,some assistance to meetbasic needs, and referrals
to psychosocial services
where required. Participants
develop a plan to establish a
new business upon returning
to their country of origin andreceive financial support toimplement this upon return.

THE NETHERLANDS
The program is mainly
government funded. It costs
6,000 EUR to assist an
individual to return (including all associated costs) – theequivalent of 30 days inimmigration detention. The
program acts as an alternative to detention because
the government undertakesthat participants will not be
detained and, in some cases,
people are released from detention to participate in the
program. As of September
2014, over half the people
enrolled in the program had
returned to their countries

THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 18

PREPARING FAMILIES FOR INDEPENDENT DEPARTURE

Belgium 237 has open housing
facilities for families who
have to leave the country,
who apply for asylum at theborder, or who fall under the
Dublin Regulations. 238 Thesehousing facilities are locatedin close proximity to public
transportation, schools andshops. Usually, each family isallocated its own unit. Buildings are not locked and there
are no security staff. The
families receive a weekly allowance, food vouchers andnon-food items. Children can
attend schools in the local
area and families have access to physical and mental
health services if required.
Each family is assigned a‘coach’ employed by the

Belgian Immigration Department. These coaches are,in effect, case managers
responsible for providing
holistic, tailored support
through intensive casework.
They review the family’s file,
explore all options to remainin the country legally, seek
legal advice if required, makepractical arrangements forthe journey and work withthe family to accept andprepare for return. Casemanagers cultivate rapportand encourage families toshare their full story in orderto realistically consider all
future options.
Since the project began, themajority of families (70%
to 80%) have remained in

BELGIUMimmigration processes. 239
There has been a high rateof voluntary return and low
rates of absconding: from
October 2008 to August
2011, 217 families (including
396 children) were housed
at the units. 240 Of this group,
88 families returned to theircountries of origin or were
removed to a third country
under the Dublin Regulations. Almost all of these(80) departed independently, with only eight forced
returns. Of the remaining 129
families, 69 were released
and 48 absconded (usually
within five days of arrival). 241
The average length of stay
was 24 days. 242

55

THERE ARE ALTERNATIVES (REVISED EDITION)

FACILITATING LAWFUL STATUS

THE UNITED STATESThe United States established the T Non-Immigrant Status (the “T Visa”) for non-citizens who are survivors of severe forms of human trafficking.243 It extends protection tosuch individuals, and allows them to remain in the country to assist in an investigation orprosecution of human trafficking. The T Visa begins as a temporary four-year visa. After
three years of holding T non-immigrant status, the non-citizen can apply for permanent
residency. T Visa holders are given work rights and are eligible for the same federallyfunded benefits and services as refugees. Further, T Visa holders have some access tofamily reunification, in order to protect family members at risk of reprisals by traffickers. 244

FACILITATING LAWFUL STATUS

MOROCCOMorocco hosts between 10,000 to 20,000 undocumented migrants from Sub-SaharanAfrican nations. In September 2013, King Muhammad VI announced that some undocumented migrants would be ‘regularised’ and given permission to work in the country
legally. 248 This limited scheme resulted in approximately 18,000 one-year residency
permits being granted to undocumented migrants in the country. 249

FACILITATING LAWFUL STATUS

ARGENTINA

Argentina has pursued a strong regularisation and legalisation strategy for managing
its substantial population of immigrants, most of whom originate from countries in theregion.245 It provides residence to any citizen of a Mercado Comun del Sur country(which includes all South American states) who does not have a criminal record. It has
also legislated to provide temporary residence permits for people who are not be able
to return to their country of origin because of a natural or environmental disaster.246
Further, between 2007 and 2010, Argentina implemented the “Patria Grande” regularisation programme. This granted temporary or permanent residence to 560,131 people, thus
contributing to a decrease in unemployment and poverty.247 Legal migration has been
seen to benefit the economy and so irregular migration has largely been redirected into
the formal market through regularisation.

56

THERE ARE ALTERNATIVES (REVISED EDITION)

FACILITATING LAWFUL STATUS

SWEDEN

Sweden conducted a regularisation program between November 2005 and March 2006,
targeting individuals who had been issued with final removal orders. This was initiated inpart due to heightened media attention over children from undocumented families who
were experiencing severe psychological problems caused by their irregular status. A totalof 31,120 applications for residence permits were processed, of which 17,406 were granted.
These were mostly issued to families with small children and migrants who had been issued
removal orders but could not be returned to their country. Factors such as length of stay in
Sweden, situation in their country of origin, criminal history and social and health circumstances were taken into consideration. 251

FACILITATING LAWFUL STATUS

BELGIUM

Belgium launched a program in 2009 to regularise migrants who had been residing in the
country for at least five years. Applications were received between 15 September and 15
December 2009. Applicants had to demonstrate integration into Belgian society (throughlanguage skills, attendance at literary courses or having children who were enrolled in
Belgian schools). The regularisation program also offered permanent regularisation toasylum seekers whose applications had been pending for more than three years, and who
could produce an employment contract and regional labour card. Through this program,
11,016 regularisation applications were granted. 250

57

THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 19OPTIONS FOR THOSE WHO CANNOT BE DEPORTED

See also Box 26.
Hungary – Under Act II of2007, a residence permit canbe issued on humanitarian
grounds to persons who havebeen granted “exile” status,or tolerated stay.252 Residence
permits are issued for one
year and may be renewed
for further one-year periods.
Those with ‘exile’ status areentitled to social assistanceincluding accommodation
or rental support, medical
services, education assistance, and financial support
to depart the country whenpossible.253
Germany - Unreturnablemigrants in Germany are
granted tolerated status, andBOX 20PROTECTING VICTIMS OF TRAFFICKING

A reflection period is “aperiod of time in which thetrafficked persons can consider their options in a safe
environment, without riskof being removed from thecountry.”254 Granting a reflection period to survivors of
trafficking is recognised asa best practice and measurethat not only helps to protect
the rights of trafficked survivors, but also encourages
survivors to cooperate withauthorities in the prosecution of traffickers. 255

58

issued with a document calleda Duldung. This certifies thatthe individual is obliged toleave the territory, but cannot
do so at present. A Duldung
can be granted for a variety ofreasons, including administrative obstacles preventing travel, such as a lack ofpassport, or conflict in the
country of origin. After a year,
Duldung holders have limited
work rights and receive basicsocial assistance, at 40% below unemployment benefits
for German nationals. They
are required to live in designated areas (to distribute thesocial welfare load across the
Länder), and require permission to travel.

The Council of Europe Convention on Action against
Trafficking in Human Beings
includes a mandatory 30 day
reflection period, irrespective of whether the person
is cooperating with theprosecuting authorities. It
also provides for renewable
residence permits, valid forat least six months. Under
Article 8 of the Directive,
residence permits may be issued if the person(a) is necessary for the investigationof the trafficking offence or

VARIOUS COUNTRIESIn the United States, individuals from certain countries thathave experienced devastating
natural disasters, civil war orother conditions that temporarily prevent their citizens
from returning safely, may
be able to obtain Temporary
Protected Status (TPS). A
TPS provides the holder withtemporary permission toremain in the US, and also
provides temporary work
authorisation. Once granted
TPS, an individual cannot be
detained and is not removable
during the designated period.
In order to qualify for TPS, an
individual must prove that s/
he is a national of a current
TPS designated country andhas been in the US since a
specified date.

EUROPE
judicial proceedings, (b) has
shown a clear intention tocooperate, (c) has severed all
relations with the traffickers;and (d) would pose no risk
to public order, policy or security. Holders of residence
permits should be able toaccess standards of living
capable of subsistence, access to emergency medical
treatment, translation andinterpreting services, and if
provided for by national law,
psychological services andfree legal aid.

THERE ARE ALTERNATIVES (REVISED EDITION)

8. Placement Options

There are various placement options available
to a State in supporting and managing an individual, pending case resolution. Placementin the community without conditions – orwith liberty – is the preferred option in the
majority of cases. Placement in the community
with conditions is used as necessary andproportionate after individual screening
and assessment has identified concerns.
Finally, immigration detention may be used
as a measure of last resort in exceptional
circumstances, provided the standards ofnecessity, reasonableness and proportionality have been met in the individual case.

8.1 Community without conditions
If screening and assessment demonstrate that there are no legitimate grounds
for detention, then liberty is the first andpreferred placement option. Placement in
the community without conditions or restrictions upholds an individual’s right to liberty
and freedom of movement. Such placement
is underpinned and supported by theminimum standards described in Section 5.
Open accommodation centres and reception
centres are one example of such placement
options. Such centres may be dormi-

59

THERE ARE ALTERNATIVES (REVISED EDITION)

tory-style living with mess hall kitchensand communal facilities or a more independent style of living in self-contained
flats with self-catering. Residents cancome and go as they like, but may need tomeet with immigration to progress theirmigration case. Such institutional models
often provide space on-site for relevant
services such as legal advice or counselling.

Æ Foster homes or orphanages (such as usedwith children who are citizens)Æ Shelters for destitute, irregular migrantsÆ Homeless shelters or transitional housing
for the homelessÆ Centres for migrants preparing to departthe country
8.1.2 Minimum supports and requirements

Some countries tend not to use the institutional or cluster housing models but
instead disperse individuals throughout
the local community. This may be incommunity or religious group housing,in NGO-run shelters, with friends orfamily or in private rental properties.
Many countries operate specialist housing
for vulnerable individuals such as traffickedpersons, people with physical or mental
illness, and single mothers. A number ofcountries place unaccompanied minors into
the mainstream child protection system.

As discussed in Section 5, minimum standards
underpin these placement options. The
provision of minimum standards looks different
country to country. In some countries allbasic needs are met through the institutional setting, while in others basic needs areprovided by NGOs with or without government
funding. A number of countries allow work
rights for asylum seekers and other migrants
awaiting a decision in their case. This reduces
the economic burden on governments andincreases the ability of the individual to selfsustain and cope during the process, in turnimproving integration (if approved) or reintegration and return with dignity (if refused).

8.1.1 Accommodation options
Despite the importance of developing aholistic approach to alternatives, there isoften particular interest and concern about
where people will live if they remain in thecommunity. Accommodation can include:Æ Private accommodation
Æ Living with immediate family, friends orrelatives

Æ Living with members of the hostcommunityÆ Government-funded housing
Æ Private housing funded by charities
Æ Open reception centres for asylum seekers
Æ Open centres for recognised refugees
Æ Open refugee camps
Æ Shelters run as part of humanitarian aid
Æ Shelters for unaccompanied children or
separated children

60

For many placed in the community, there
will be no need for conditions or restrictions. However most individuals in thecommunity may be required to undertakea number of minimal requirements toensure they remain active in the system
and achieve case resolution, including to:Æ Appear at appointments, hearings orinterviews

Æ Undertake acts to assist case resolution
Æ Respect visa or residency status conditions
Such requirements are differentiated fromconditions or restrictions, as the latter are
more onerous and impact on a person’s rightto liberty and freedom of movement. It is
important to note, however, that minimal
requirements may become conditions or
restrictions, or applied as such, dependingon the individual case. For example, in somecountries individuals who fail to appear at

THERE ARE ALTERNATIVES (REVISED EDITION)

immigration appointments or to undertakecertain acts to assist in achieving case resolution may be automatically deemed to not
be in compliance with their immigration obligations and subject to more onerous conditions. Meanwhile, requiring an individual toparticipate in high frequency meetings with
their caseworker could amount to a condition
or restriction if unnecessary and disproportionate to the individual’s circumstances.

Individuals may also be required to present
further evidence in support of their migration
claims by a certain date, such as to produce
documents or identify witnesses. They may
also be required to take steps in preparation for return, such as applying for a
passport or other travel document orpurchasing tickets to leave the country, as
seen in Box 16 Australia, Box 17 the Netherlands, Box 18 Belgium and Box 21 Sweden.

Appear at appointments, hearings orinterviews

Respect visa or residency status requirements

When placed in the community, an individual
may be required to appear at set appointments, hearings or official interviews withcaseworkers or immigration authorities
regarding their visa application or migration
status. This assists in progressing the migration
matter and working towards case resolution.
Attendance at such appointments, hearings
or interviews can also be used as an opportunity to conduct a follow-up assessment of
an individual’s placement and whether additional supports are required to manage him
or her in the community. 256 They can also be
used to re-evaluate the conditions of release in
the community should a negative decision ona visa application or other status be received.
See Box 10 Canada, Box 14 Hong Kong, Box 16
Australia, and Box 21 Sweden for examples.

Individuals may also be obliged to respect
the requirements imposed on them by theshort-term visa or other temporary statusissued. These can sometimes place limitations on a person’s participation in the structures of society, such as limitations on accessto social welfare benefits, public healthcare or
employment. However, there is no evidence
that such limitations encourage case resolution or compliance. Instead, as described in
Sections 2.4.1 and 5.2, the ability to meet basic
needs contributes to case resolution from
community settings. Another requirement
may be that the visa holder is not permitted
to leave the country without permission.

Undertake acts to achieve case resolution
An individual may be required to undertake
acts to assist in achieving case resolution.
As seen in Box 1 Argentina, individuals may
be required to explore all options to regularise their status within a set deadline.
Similarly in Brazil, the first measure of
response to an immigration infraction is toorder an individual to leave the country,
regularise his or her status within a certain
period of time and/or to pay a fine. 257

61

THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 21

RECEPTION IN THE COMMUNITYIn Sweden, asylum seekers
are taken to an open reception centre where they are
registered and screened
for health or other support
needs. They are registeredon arrival and issued with aplastic photo identity card.
This is used by immigration to track the case andused by the asylum seeker
to access services in thecommunity. 258 A caseworker
explains the Refugee Status
Determination process andtheir rights and entitlements
in Sweden.
After several weeks, asylum
seekers are transferred to aregional area and housed inflats and apartments close toa Swedish Migration Board
reception office. Asylum
seekers can live independently if they can pay theirown rent. Asylum seekers
are provided with a daily
allowance of up to SEK71(approximately USD11) for
single adults (less for adults
sharing accommodation,and children). Emergency

62

medical and dental procedures are provided at low
cost, about SEK50 (approximately USD8). Like Swedish
children, asylum-seeking
children are entitled to free
medical coverage. Asylum
seekers can request theassistance of a lawyer, who
is appointed and paid forby the Swedish Migration
Board. Asylum seekers who
can prove their identity, or
who are cooperating withauthorities to establish theiridentity, are entitled to work.
Asylum seekers have regularmeetings with caseworkers
appointed by the Swedish
Migration Board. Caseworkers can refer clients for
medical care, counsellingor other services whererequired. They also provide“motivational counselling” toprepare the asylum seeker
for all possible immigration
outcomes, and assess therisk of absconding due to anegative asylum decision.
There are three options on
negative decisions: volun-

SWEDENtary repatriation, escort bycaseworkers or transfer tothe authority of the police(forced return). Incentives
are provided to those who
opt for voluntarily repatriation, including financial assistance, and travel arrangedby the caseworker and paid
for by the Swedish Migration Board. 259 Where there isno risk of absconding, failed
asylum seekers are given
between 14 and 30 calendar
days to leave the country
independently. In 2012, 68%of third country nationals ordered to leave thecountry departed voluntarily or through an Assisted
Voluntary Return program. 260
Those who do not cooperatewith independent departure
options can have conditions
introduced including reporting requirements or reduced
benefits. 261 As seen in Box 27, detention is only applied asa last resort during deportation procedures in conditions
that support dignity andwellbeing.

THERE ARE ALTERNATIVES (REVISED EDITION)

Hosting transit migrants
Countries that host large numbers of noncitizens intending to transit within undocumented mixed migration experience
particular pressures and challenges. 262
Governments of preferred destinations are
increasingly working to thwart the journeysof those intending to reach their territory.
However, migrants excluded from legal
migration options and from full participation
in local society are likely to accept greaterrisks to resolve their situation. 264
Indeed, strict control measures do notresolve the factors motivating migration.
Increased use of detention and other formsof enforcement increases the likelihood
migrants will avoid authorities entirely,
participate in unregulated or illegal activity
or accept greater risks to continue thejourney. 265 One study in Libya concluded:
The absence of a humane and orderly
framework for handling migration flows
in Libya is no doubt a contributing
factor to the ever increasing numbers of
migrants, asylum seekers and refugees
willing to risk their lives in the Mediterranean to reach the safety of Europe.266
While secondary movement cannot always
be prevented, a range of strategies canbe utilised by States to better understand, respond to and manage such mixed
migration. In the first instance, screening
and assessment assists in understanding
factors driving migrant journeys. As shownin Section 6, all governments benefit fromunderstanding these factors to ensure
placement decisions are well informed andaddress identified concerns. For example,
people who are migrating due to persecution, systemic violence or extreme poverty
are seeking different outcomes to those
who are seeking to reunite with family.

Understanding these motivating factors
and identifying the likelihood that somemigrants will remain in the system while
awaiting an outcome assists in determining
appropriate placement options, including
shelters for children, victims of crime andtrafficking and vulnerable groups andreception centres for asylum seekers.

There is evidence that
migrants are less likely
to abscond in a country
they intend to transit
if they can: meet theirbasic needs throughlegal avenues; are not
at risk of detention or
refoulement, and remain
hopeful regarding
future prospects.
In most instances, these transit community
models retain the right to freedom of
movement in the community; in somecontexts, migrants are required to reside in
specific towns (Box 13 Turkey) or to not enter
border areas (airport or seaport) without
permission (Indonesia). 267 Conditions, suchas reporting, are only applied as needed. The
principles of case management and information about available options remains central,
as seen in reduced levels of absconding in
Thailand and Indonesia (Section 2.4.1).

63

THERE ARE ALTERNATIVES (REVISED EDITION)

Asylum seekers, refugees and migrants
are less likely to abscond in a country
they intend to transit if they can:

Æ Meet their basic needs throughlegal avenues

Æ Are not at risk of detention
or refoulement, andÆ Remain hopeful regarding
future prospects. 268
Examples of alternatives in countries
hosting large numbers of transit migrants
include Box 2 Poland and Croatia, Box 7
Hungary, Box 5 Panama, Indonesia, Israel
and Malta, Box 8 Spain, Box 9 Romania, Box
13 Turkey, Box 19 Hungary, Box 22 Greece,
Box 23 Slovenia and Box 26 Mexico.
Notwithstanding these strategies, complete
control in all cases is unrealistic. Effective
solutions include proactive, preventative
mechanisms that address the root causesof migration and that build a stronger

BOX 22

CLOSING DETENTION CENTRES IN FAVOUR OF ALTERNATIVESThe Greek government
started releasing people
from detention in February 2015 as part of a policyof more humane treatmentof migrants. 270 For over ten
years, Greece had systematically detained refugees,
asylum seekers and migrants
who entered the country
irregularly, garnering heavy
criticism for falling shortof international minimum
standards.
After visiting the notorious Amygdaleza detention
centre, the Deputy Interior

64international system of burden sharing,
including transnational cooperation andregional solutions. The government of theUnited States recently announced a major
funding initiative to address the root causesof irregular migration by unaccompanied
children. The program aims to support the
security, good governance and economic
prosperity of countries in the Northern
Triangle. As the Vice President, Joe Biden,
stated in his announcement of the plan, “thecost of investing now in a secure and prosperous Central America is modest comparedwith the costs of letting violence and poverty
fester.”269 Such a response reframes issues ofirregular migration as an issue of international
development and security. Detention does
not effectively reduce mixed migration. Ultimately, managing undocumented migrants
in transit requires understanding motivating factors to determine fair, timely andhumane national responses, and for broader
regional dialogue on longer-term solutions.

Minister stated “Detention
centres – we’re finished withthem … I’m here to express
my shame, not as a ministerbut as a human being … I
couldn’t believe what I saw.
I really could not believe
it. This must change and it
must change immediately.”271
The announced policychanges include:Æ The immediate
revocation of the
Ministerial Decision
allowing for the prolongation of detention
beyond 18 months

GREECEÆ The immediate release
and referral to accommodation facilities ofvulnerable groups,
including unaccompanied minors

Æ The release of registeredasylum seekers whose
detention exceeds six
monthsÆ The immediate implementation of measures
to substantially improve
detention conditions

Æ The use of alternative
measures to detention 272

THERE ARE ALTERNATIVES (REVISED EDITION)

8.2 Conditions or limited restrictionsin the community, with review
The foundation provided through minimum
standards – including formal status anddocumentation, legal advice, basic needs
and fundamental rights – create a strong
context from which individuals can participate in the administrative procedures associated with achieving case resolution. Satisfactory outcomes can often be achieved without
extra conditions or restrictions being imposed.
However, for those individuals with ahistory of non-compliance or where
there are other serious concerns identified through the screening and assessment
process, there are a range of conditions
or restrictions that may promote compliance without undue restrictions on liberty
or freedom of movement. Unfortunately,
there is very limited data available documenting the specific levels of effectivenessof each of these conditions or restrictions. 273
The data that is available has been noted.
Conditions or restrictions may include
the following:Æ MonitoringÆ SupervisionÆ Surety and other consequences

decision may lead to an increase in conditions or restrictions. Conversely, it is often
appropriate to decrease the level or type ofconditions for an individual who is working
well with authorities. It is important that theapplication of conditions is independently
monitored to ensure that any conditions or
restrictions are applied in limited circumstances and only when necessary. 274 For
example, Venezuela maintains a 30-day time
limit on the use of any conditions imposed
to implement a deportation order. 275
It should be noted that the undue application of additional conditions or restrictions canincrease the costs of community management
programs unnecessarily while also decreasing
efficiency. Compliance issues may arise whenconditions or restrictions create an unmanageable or unfair burden for the individual. For
instance, in-person reporting can be overly
onerous if it requires lengthy or expensive
travel, if it regularly disrupts legal employment or if is required of those responsible forcaring for children or the sick. Such conditions sometimes lead to non-compliance,even when the individual is willing to remain
in contact with authorities. If such requirements are too onerous, or is required at highlevels over long periods of time, compliance can be inadvertently compromised.

for non-compliance
Many alternatives integrate a number of thesemechanisms – together with the minimum
standards of legal advice, basic needs, legal
status and documentation and case management – to create effective management
programs in a community context. As detailed
in Regular review of placement decisions,ongoing and regular assessments should be
conducted to re-negotiate or amend the useof conditions and restrictions as a person’s
circumstances change, to make sure they
are not unnecessary or disproportional. For
instance, reassessment of a case due tonon-compliance or a negative visa or status

8.2.1 Monitoring
Authorities often make use of monitoringmechanisms to ensure that irregular migrants
remain in contact with authorities and canbe located to participate in the progress of
their migration case as required. 276 Monitoring mechanisms are designed to establish
and maintain a line of communication andto keep track of an individual’s whereabouts. Monitoring differs from supervision orcase management in that it does not provide
opportunities to communicate or to respondto substantial matters such as changes in65

THERE ARE ALTERNATIVES (REVISED EDITION)

a person’s situation or concerns regarding
compliance. Monitoring mechanisms include:Æ Registration with authorities
Æ Nominated addressÆ Handover of travel documents
Æ Reporting requirements
Æ Directed residence
Registration with authorities
Registration provides authorities with a central
database of all relevant cases and is often
closely linked with the issuing of documentation. This strategy is well established in many
countries, however its use is still growing insome regions. For instance, the use of registration processes for asylum seekers and refugees
in Uganda, Zambia and Kenya has resulted in
fewer people being detained unnecessarily. 277

Nominated address
Providing a nominated address is used bydifferent governments for different reasons.
Some governments use this mechanism
largely to ensure that the applicant will
receive all official communication about
the progression of the case. Other governments use a registered address to monitor
movement and ensure the individual can belocated by authorities in the community. 278
The address that can be registered depends
on these different purposes: it may be thepersonal, residential address of the individual (including that of an accommodation facility) or it may be another address,
such as that of the person’s legal counsel. The
requirement to provide a nominated or registered address is used in Box 25 Canada.

Handover of travel documents
When an individual is assessed as a high riskof transit or absconding, authorities may
decide to take possession of the individu-

66

al’s travel documents, such as a passport,
until migration matters are resolved. This isseen as an effective strategy to reduce theuse of asylum processes to gain entry to aterritory to work unlawfully for short periodsof time. 279 Authorities must ensure that such
documents are kept in secure locations andcan be retrieved by the individual should
they decide to depart the country voluntarily. In addition, appropriate documentation needs to be issued as a replacement sothat the individual can continue with everyday
activities that require identification and toprotect them from unnecessary detention.
This strategy is used in several countries
including Hungary, 280 Austria, 281 Jordan, Box
2 Poland and Croatia and Box 25 Canada.

Reporting requirements
An obligation to report regularly to authorities is the most common condition identified.
Reporting acts as a monitoring mechanism
by ensuring the individual remains known
to and in contact with authorities. In-person
reporting requires the individual to present
themselves at set intervals at a nominatedlocation (such as an immigration office,police station or contracted agency). They
are often then required to sign a register
documenting their presence. Telephonereporting requires the individual to call aparticular number at set times (sometimes
from a set telephone number) and to record
a statement, which is subsequently verified
using voice recognition technology. 282
In many contexts, authorities or the courts
have the discretion to decide the frequencyof reporting. Screening and ongoing assessment will assist authorities to determine appropriate reporting requirements, and reduce
the expense and impact of unnecessary oroverly onerous reporting obligations. Personal
circumstances should be taken into accountwhen determining this condition. Individuals

THERE ARE ALTERNATIVES (REVISED EDITION)

with vulnerabilities (such as illness, disability
or pregnancy) should be offered modified
measures such as telephone reporting or lessfrequent, in-person reporting. Other relevant
factors may include distance to be travelled,transportation available, caring obligations
and employment schedule. The frequency ofreporting should be reviewed and modified, as
circumstances require. For instance, if a dateof departure is approaching, greater frequency
may be necessary. On the other hand, once
the individual has established trust by fulfilling
initial reporting requirements, less onerous
reporting conditions can be introduced. 283
Unnecessary reporting requirements erode
trust in the system and wastes resources. 284
De facto reporting occurs when the individual can only renew a temporary residency
status or obtain food vouchers or othergoods in person; however, this only contributes to monitoring if a lack of appearance is reported to authorities. Failure
to attend should not deprive an individual of his or her allocations. Some of thecountries that use reporting include Box
13 Turkey, Box 14 Hong Kong and Box 10
Canada, as well as Box 23 Slovenia, UnitedStates, Sweden and the United Kingdom.

Directed residence
Some governments direct individuals to live incertain locations, leading to a de facto form ofmonitoring. For example, migrants who require
shelter may be directed to live at a particularmigrant accommodation centre. In addition toestablishing a known address, such accommodation centres sometimes fulfil additional
monitoring activities by reporting absentee
residents to immigration authorities. Further,some centres have immigration officers orcase managers located on-site, increasing
contact with migration authorities. Other
countries direct individuals to live in a certain
region or district within the country. This is
usually designed to distribute the burden ofsocial welfare across regional or local government areas. Examples of directed residence
can be found in Box 2 Poland and Croatia, Box
8 Spain, Box 13 Turkey and Box 18 Belgium.

67

THERE ARE ALTERNATIVES (REVISED EDITION)

8.2.2 Supervision

Supervision by migration authorities

Supervision involves a substantial commitment
to directly monitor, evaluate and respond to anindividual’s compliance with their undertakings and monitoring activities. Supervision isa separate function to case management due
to its focus on compliance and case resolution. It is more active than monitoring, as itprovides the officer with authority to respondto changes in circumstances or deal withcompliance issues. Supervision can involve:

Intensive supervision is used by migration
authorities to directly observe an individual’s
location and activities. Intensive supervision
substantially increases the level of communication and contact between authorities
and an individual through telephone calls,
meetings and home visits. This intensive work
is designed to establish and verify information, such as whether the person is actuallyliving at the address provided. Supervision provides authorities with the information required to make decisions about casemanagement or case resolution, including
appropriate pathways for those facing
return. Intensive supervision programs

Æ Supervision by migration authorities
Æ Delegated supervision

BOX 23REPORTING AS A MONITORING MECHANISM

Slovenia – Third country nationals subject to a deportation order may be required
to report to the nearest
police station instead of being placed in detention. 285 Individuals are usually required
to report once per month.
United States – The UnitedStates uses both telephone
and in-person reporting. The
telephonic reporting voiceverification program makes
automated calls to participants at periodic intervals,
requiring them to call backwithin a certain timeframe.
When the call is returned,
the computer compares thecaller’s voice against the registered biometric voiceprint68

and registers them as having
reported. 286
Sweden – Individuals subject
to a supervision order (acombination of reporting
and a surrender of documents) are obliged to reportto the nearest police stationor the Swedish Migration
Board on a regular basis.
There is no standardised
procedure regarding its
application; instead, thefrequency of reporting is determined on a case-by-casebasis. Reporting frequencies usually range from oncea week to once every two
weeks. However, they can beevery day if an individual isdetermined to pose a highrisk of absconding. Failure

VARIOUS COUNTRIES
to report leads to a follow up
assessment; it does not automatically lead to detention.
If the assessment identifies
a high risk of absconding, adecision to detain may betaken.
United Kingdom - Asylum
seekers and irregular migrants are regularly required
to report either to local
Home Office offices or, more
rarely, to police stations.
Reporting requirements andconditions are regulated in
the UK Home Office Guidance “Reporting – Standardsof Operational Practice”. The
frequency of reporting varies
considerably, usually fromevery day to once a month.

THERE ARE ALTERNATIVES (REVISED EDITION)

appear to be most successful when established in conjunction with case management,
legal support, basic needs and documentation, as seen in Box 24 the United States.

Delegated supervision
Immigration authorities sometimes delegate
supervision tasks by authorising anotherorganisation or individual to supervise thecompliance of irregular migrants with theconditions of their release. Non-government organisations have sometimes been

BOX 24willing to undertake supervision responsibilities as part of a broader support program,particularly if it is a condition of releasefrom detention. When family members
or community groups commit their funds
through a guarantor or bail program (seeSection 8.2.3 Bail, bond, surety or guarantee)
this may result in an informal form of supervision, as they take on some of the consequences for non-compliance. Delegatedsupervision can be seen in Box 10 Canada.

SUPERVISION DURING REMOVAL PROCEEDINGSIn the United States, the Vera
Institute for Justice was contracted by the government
to undertake a three year
test of community supervision for people in immigration removal proceedings
between 1997 and 2000. 287
The study compared theoutcomes of those released
into the program with a control group released throughstandard bond or parole
procedures. Participants forthe program were identified
through a screening andassessment process andrequired to have a verified
residential address. Participants received information
about immigration proceedings and the consequencesof non-compliance; reminders of court hearings; andreferrals to legal representatives and support services
such as food banks andhealth clinics. A sub-groupplaced in intensive supervi-

sion were required to have aguarantor, such as a relative,
who agreed to take moral
responsibility for the person
to fulfil their obligations. 288
These participants weremonitored through regular
reporting by telephone orin person and home visits.
The program cost US$12 per
day as compared with $61
per day for detainees in thesame period. 289
The Appearance Assistance
Program demonstrated that
authorities did not need todetain all noncitizens in removal proceedings to ensurehigh rates of appearance at
immigration court hearings:
91% of participants in theintensive program attended
all required hearings compared with 71% of those in acontrol group. The effect on
appearance rates was mostdramatic for those least
likely to appear – undocu-

THE UNITED STATES
mented workers with little
chance of winning their migration case in supervision:
88% of this group appeared
at all hearings when supervised, compared with 59% of
those in a comparison group
released through standard
bond procedures.
The project found thatsupervision was cost effective and almost doubled therate of compliance with finalorders, with 69% of participants in intensive supervision complying with thefinal order in comparison to
38% of a comparison group
released on bond or parole.
Outcomes were associated with several factors in
addition to monitoring andsupervision activities including family or community ties,
in-depth explanation regarding the hearing process, andassistance to depart thecountry legally.

69

THERE ARE ALTERNATIVES (REVISED EDITION)

When supervision is undertaken by anorganisation providing other support
services, such as providing for basic needs,
it is important to clarify the roles of eachparty in terms of compliance and enforcement (for example, see Box 14 Hong Kong).
A focus on service provision may preclude
some organisations from reporting instancesof non-compliance to authorities.

the effectiveness of negative consequences
in increasing compliance with conditionsof release. 290 Notwithstanding this lack ofevidence, the strategy is commonly usedby governments and is included in thisHandbook to prompt discussion. Consequences for non-compliance include:Æ Bail, bond, surety or guaranteeÆ Other consequences.

8.2.3 Surety and other consequences
for non-compliance

Bail, bond, surety or guarantee

Several mechanisms used to manage people
in a community setting impose consequences if particular conditions are not met.
There is no authoritative evidence regarding

Bail, bond, surety or guarantor systems all
create a negative financial consequence fornon-compliance. These are similar mechanisms by which a sum of money is forfeit if
the individual does not comply with his or her

BOX 25BAIL AS A CONSEQUENCE FOR NON-COMPLIANCE

Canada uses financial consequences, through a bailmechanism, as one tool in
its system for managing irregular migrants and asylum
seekers in the community. 292
The decision to detain is
automatically reviewed atregular detention review
hearings. These hearings areundertaken by a member of
the Immigration and Refugee Board within 48 hours
of detention, then within
another seven days and thenevery 30 days thereafter, as
required. 293 Detainees may
also request a review hearing if they have new facts
pertaining to the decision
to detain. Eligible detainees
may access free legal representation in the form of legal

70aid. At detention hearings,
the burden of proof lies withthe border services agency
to demonstrate a continuing need for detention for areason outlined in law. The
detainee may also submit
information to support theircase for release. Bail is automatically considered as an
option to enable release atthese hearings.
At these hearings, release
may be ordered with orwithout conditions being
imposed. A significant factor
in favour of release is if thedetainee’s application is supported by a “bondsperson”.
A bondsperson agrees to
pay a monetary bond whichis paid up front, held in trust
and then returned if the

CANADA
individual complies with theconditions of their release,which may include, interalia, providing a nominatedaddress, handover of travel
documents, or reporting
requirements. In some situations, the money does notneed to be paid unless the
person does not comply
with the conditions of theirrelease. A bondsperson is often someone who knows thedetainee personally and isconfident in their willingness
to comply with authorities. 294
Several non-government organisations in Canada offer
to act as a bondsperson for
detainees who do not have
either the resources or family/community ties required
to make bail.

THERE ARE ALTERNATIVES (REVISED EDITION)

immigration procedures or other conditionsof their release to the community. The money
involved in these schemes can be from theindividual themselves, or from a third party
such as a family member, friend or community
organisation. 291 Some of these mechanisms
require a sum to be paid up front, which can be
retrieved if their obligations are fulfilled. Others
require a sum of money to be paid to authorities only if the applicant does not fulfil his or
her commitments. In order to be both accessible and effective for eligible detainees, such
schemes are best served by setting amounts
based on the individual’s financial situation.
In several countries that operate a systemof financial consequences, non-governmentorganisations have funds available to eligible
detainees who may otherwise be unable toafford to apply to the bond program. Such
schemes can be seen in Box 14 Hong Kong,Box 24 the United States and Box 10 Canada.

Other consequences
Finally, some countries rely on the threat ofnegative consequences to try and reduce
non-compliance. The least imposing consequence is to increase conditions. This may
mean new conditions are introduced orexisting conditions, such as reporting, areintensified. Meanwhile, some governments
cut access to basic social welfare, such as
housing, as a consequence for non-compliance. However, this fails to fulfil the principleof minimum standards and can be counterproductive for case resolution. As shown in
Section 5.2 on basic needs, migrants who
become homeless and impoverished are lesslikely to remain in contact with authorities.

Maintaining minimum
standards can assist caseresolution as detailed in
Section 5

Detention is a further mechanism used asa consequence for non-compliance. It is
unclear in what ways the threat of detention
may affect compliance and does not in itself
guarantee case resolution such as departure. 295
Finally, a consequence for those with nofurther avenue to remain in the country is towithdraw the option of supported and/or independent departure. Independent departure
allows returnees to retain a level of autonomy
and control over matters such as packing
up belongings, organising finances (such as
closing bank accounts), and saying farewell
to family and friends. Enforced departure ordeportation is a much more traumatic anddegrading experience in which migrants are
subject to the full force of State authority.
Further, deportation is often linked to banson re-entry (with implications for all subsequent international travel) and/or a debt fordeportation procedures. 296 These adverse
consequences are designed to encourage
independent departure. Examples of consequences for non-compliance can be seen
in Box 14 Hong Kong and Box 21 Sweden.

8.3 Detention as a lastresort, with review
International human rights law and standards
make clear that immigration detention should
be used only as a last resort, in exceptional
cases, after all other options have beenshown to be inadequate in the individualcase. The use of confinement with people inan administrative procedure is highly controversial due to its negative impact on health,wellbeing and human rights. Detention should
be avoided entirely for vulnerable individuals and be in accordance with international,
regional and national law and standards. This
includes the requirement that the standardsof necessity, reasonableness and proportionality have been met in the individual case. In
spite of these serious concerns, detention is
included here to be used only as a last resort
for exceptional cases after a comprehen-71THERE ARE ALTERNATIVES (REVISED EDITION)

sive process has determined before an independent judicial authority that all other options
will not address the identified concerns.
If detention is to be used in accordancewith international law, several preconditions must be met. It must be:Æ LawfulÆ Necessary and reasonable in the circumstancesÆ For a legitimate purpose

BOX 2672

Æ Proportionate to achieve that legitimate
purposeÆ Applied without discrimination
Æ The last resort based on evidence there
are no alternatives that can achieve that
legitimate purpose.
Authorities must be able to show that
detention is necessary and proportionate
to the reasons for the detention and thatthey have come to that decision througha thorough assessment of the individual

DETENTION RELEASE OPTIONS

Philippines – Section 13 of
the Department of JusticeDepartment Order No. 94,
series of 1998, provides forthe provisional release of
refugee applicants fromdetention. 298 Through thisDepartment Order, detainees who seek asylum may
be released by order of the
Department of Justice. In
practice, the asylum seeker
is issued with a Certificationof Status in coordination
with UNHCR. This document
is sent to the Immigration
Commissioner to complete
and issue. The only condition is that the asylum seeker
agrees to follow the requirements of the Refugee Status
Determination process.

Within this system, Australia
has an avenue to releasedetainees who are unable
to depart the country due
to circumstances outside
their control, such as when
their country of origin or
regular domicile is unable
or unwilling to issue travel
documents. The Removal
Pending Bridging Visa
enables migrants who arecomplying with efforts to
prepare for their removal
to be released from detention while this preparation iscompleted. The visa includes
the right to work, access tohealthcare and basic welfare.
Visa holders must assist withpreparations to depart thecountry.

Australia has a series of‘bridging visas,’ used toprovide temporary legal
status to migrants who haveapplied for a substantive visa
or are preparing for return. 299

In Mexico, legislation provides that an individual must
be released from detention when their departureor deportation cannot be
achieved within 60 days,

VARIOUS COUNTRIES
due to administrative or
logistical hurdles (such asdifficulty obtaining travel
documents or unconfirmed
identity and/or nationality)
or due to serious physical ormental health concerns. The
individual is instead grantedwith a temporary residence
status, together with work
rights (through Article 111 of
the Immigration Act).
South Korea has a provisional release visa which
provides authorities witha discretionary avenue torelease migrants from detention. Established under
Article 65 of the Immigration
Control Act and its decree,
the visa can be issued withconsideration of the following factors: irreparable harmto the detainee, possibility of
absconding and humanitarian concerns. 300

THERE ARE ALTERNATIVES (REVISED EDITION)

without discrimination, and that all otheroptions have been explored. In such cases,
detention in appropriate conditions, of limited
duration and with regular judicial or otherindependent review in line with international
standards, may be considered the last resort.
Comprehensive information on the areas ofdetention that require oversight and vigilant
monitoring are available elsewhere. 297 Whilethese are not repeated in detail here, the key
areas of note include detention and immigration procedures; treatment and safeguards;
safety, order and discipline; material conditions; activities; health care; personnel/staffing;and persons in situations of risk/vulnerability.

8.4 Alternative forms of detention
The IDC’s program of research was designed
to focus on those forms of migration governance that allow migrants to live in thecommunity with liberty and freedom of
movement while their migration status isbeing resolved. As a result of this focus, any
form of management that amounts to defacto detention by having the intended orunintended effect of substantially curtailingor completely denying liberty and freedomof movement is regarded as a form ofdetention. The various forms of detention
include transit zones, closed accommodation centres, alternative places of detention,home detention (including curfews), andtraditional immigration detention centres.

the community has been strictly limited tocertain areas or at particular times of day. 301

Alternative forms ofdetention require an
extremely high threshold
before application
including a high levelof regulation and independent oversight
These devices are attached to the person’s
body, usually by being securely strappedaround the ankle. Some of these devices
use Global Positioning System (GPS) technology to be able to identify the specificlocation of an individual at any given time.
Other devices require the person wearing thedevice to be at a base unit at set times andis used to monitor compliance with curfews.
All such forms of regulation are included
within this section on detention because they
substantially curtail freedom of movement
and liberty, and consequently require an
extremely high threshold before application. As with other forms of detention, theyrequire a high level of regulation and independent oversight, including prompt andregular judicial review and monitoring.

In addition, certain forms of electronic monitoring are viewed as an alternative form ofdetention due to their use to substantiallycurtail liberty and freedom of movement.
Electronic monitoring devices, or ‘ankle
bracelets’, are used to monitor the locationof an individual whose movement within73THERE ARE ALTERNATIVES (REVISED EDITION)

BOX 27

DETENTION CONDITIONS THAT RESPECT DIGNITY AND WELL-BEINGIn Sweden, detention may
only be used for people
who are in the process of
being deported because
they have not complied witha final negative decision
requiring them to depart thecountry. 302 Detention centres
are small, closed accommodation facilities. Residents
can move about freely
within the facility. Bedrooms
are shared between two
to four people. There arelounge areas with televi-

74

sions, computer rooms
with access to the Internet,
and gyms. Most rooms
have windows looking out
to garden areas. Supervised access to a central
courtyard provides limitedaccess to an outdoor area.
Residents can use mobile
phones that do not have an
in-built camera. Staff work tobuild a culture of dignity andrespect with clients. They do
not wear security uniforms
or carry weapons. Rooms for

SWEDENvisitors are furnished withtables, chairs, lounges andtoys for children. Two nongovernment organisations
have unrestricted accessto the centres to support
residents, provide additional activities and informally monitor the conditionsof detention. These conditions have been found to beof a very high standard byinternational observers.303

THERE ARE ALTERNATIVES (REVISED EDITION)

9. Conclusion
This Handbook has identified and describedlaws, policies and practices that allow noncitizens to remain in the community withfreedom of movement while their migration
status is being resolved, or while awaiting
deportation or removal from the country. This
pragmatic approach was underpinned by ahuman rights framework and a concern forminimising harm but shaped by the legitimate concerns of government in termsof compliance, timely case resolution andcost. In taking such a broad approach, the
IDC’s program of research has been able
to identify strategies to prevent unnecessary detention and reduce the length of timesomeone is detained, while also outlining key
factors impacting the effectiveness of casemanagement programs in the community.

of the issues, while the practical country
examples elaborate on aspects of implementation and demonstrate that reducing
detention through community management
is achievable and beneficial for a range ofparties. Further research and evaluation ofalternatives would provide a much stronger
foundation for future policy development.
This Handbook has taken a strengthsbased approach to the issue of detention
by focusing on those laws, policies orprograms that impose the least restrictions on freedom of movement or thatmaintain the highest threshold for decisions
to detain. For this reason, positive elementsof a country’s law, policy or practice that
may be worth replicating in other settings
have been included, even when there may
be concerns about another aspect of thatcountry’s detention or migration policy.

With effective laws andpolicies, clear systems
and good implementation,
managing asylum seekers,
refugees and irregularmigrants can be achievedin the community in most
instances

Notwithstanding the high importance forgovernments to create migration systems that
respect human rights and protect migrants
from unnecessary detention, this Handbook
has highlighted opportunities for non-government organisations to develop and offer
alternatives independently or in partnershipwith government authorities. This report has
attempted to point to potential areas for bothgovernments and non-government organisations to work on for productive change.

These findings have been brought together
in the Revised CAP model. The Revised CAP
outlines the principles and processes that,together, prevent unnecessary detention andsupport the success of community placement
options. The Revised CAP model is notdesigned to offer a single solution to the issues
faced by governments in governing migration,
but it may identify ways of moving forwardin this difficult area of policy. The Revised
CAP model can assist in framing discussions and providing a shared understanding

This Handbook has shown that there is arange of alternatives to detention that governments can draw upon to reduce unnecessary detention and increase the successof community-based management. Many
solutions exist. In fact, the IDC has identified more than 250 examples in over 60
countries. This includes in countries withlarge numbers of mixed migrants and fewer
resources. Further, alternatives can be appliedin the majority of cases. Detention is rarely
necessary while working towards satisfactory case resolution. Placement options range

75

THERE ARE ALTERNATIVES (REVISED EDITION)

from open accommodation in the community
with minimal requirements for low-risk groups
through to intensive supervision and casemanagement for populations of highest
concern, such as non-citizens facing deportation after completing a prison sentence.
Alternatives are also associated with a rangeof benefits. First, alternatives are up to 80%
cheaper than detention due to lower runningcosts. They also eliminate costly litigation andcompensation claims. Second, alternatives
are less harmful than detention. Community
placement supports health and wellbeing andupholds human rights. They also see people
better placed to move forward with theirlives once their migration status is resolved,
whether it be integration or departure. Third,
alternatives can achieve effective case resolution outcomes. Alternatives have beenshown to achieve up to 95% appearance
rates and up to 69% voluntary and independent return rates for refused cases.
It is challenging to govern migration in a waythat reflects authority over national territory
while also treating non-citizens in a humaneand dignified manner. This research has identified and described a range of mechanisms
used to prevent unnecessary detention andprovide alternatives to detention that protect
the rights and dignity of asylum seekers,
refugees and irregular migrants while meetinggovernment and community expectations. The
policies described in this report, as outlined
in CAP, are currently being implemented
in a range of countries to enforce immigration law through mechanisms that do not rely
heavily on detention. Such targeted enforcement provides a sophisticated response to thediverse population of irregular migrants andasylum seekers within national territories.

76

Dealing with irregular migration is an everyday
issue of governance. As this Handbook
shows, with effective laws and policies,
clear systems and good implementation,
managing asylum seekers, refugees andirregular migrants can be achieved in thecommunity in most instances. By learning
to screen and assess the case of each individual subject to or at risk of detention,authorities can learn to manage people in thecommunity in the majority of cases without
the financial and human cost that detention
incurs. The Handbook shows that cost-effective and reliable alternatives to detention are
currently used in a variety of settings andhave been found to benefit a range of stakeholders affected by this area of policy.

THERE ARE ALTERNATIVES (REVISED EDITION)

Suggested further reading
A number of these papers are available on the International Detention Coalition
website at http://idcoalition.org/issues/alternatives-to-detention
1.

The Forced Migration Review Special Issue 44 on Detention, alternatives to detention, anddeportation 2013 available at: http://www.fmreview.org/detention/contents

2. Costello, C. & Kaytaz, E. (2013). Building empirical evidence into alternatives to detention: Perceptionsof asylum-seekers and refugees in Toronto and Geneva. Geneva: UNHCR.
3. De Bruycker, P. (Ed.), Bloomfield, A., Tsourdi, E. & Pétin, J. (2015). Alternatives to immigration andasylum detention in the EU: Time for implementation. Odysseus Network and the European Union.
4. Edwards, A. (2011). Back to basics: The right to liberty and security of person and ‘alternatives todetention’ of asylum-seekers, stateless persons, and other migrants. UNHCR Legal and Protection
Policy Research Series. Geneva: UNHCR.
5. European Migration Network. (2014). The use of detention and alternatives to detention in the context
of immigration policies: Synthesis report for the EMN Focussed Study 2014. European Commission.
6. Field, O., & Edwards, A. (2006). Alternatives to detention of asylum seekers and refugees. Geneva:
UNHCR.
7. Jesuit Refugee Service Europe. (2010). Becoming vulnerable in detention: Civil society report on thedetention of vulnerable asylum seekers and irregular migrants in the European Union. Brussels: JRS
Europe.
8. Jesuit Refugee Service Europe. (2011). From deprivation to liberty - alternatives to detention in
Belgium, Germany and the United Kingdom. Brussels: JRS Europe.
9. Lutheran Immigration and Refugee Service. (2009). Alternatives to detention programs: An international perspective. Washington, D.C.: LIRS.
10. Mitchell, G., & Kirsner, S. (2004). Asylum seekers living in the Australian community: A casework andreception approach, Asylum Seeker Project, Hotham Mission, Melbourne. Refuge, 22(1), 119-128.
11. Robinson, V., & Segrott, J. (2002). Understanding the decision-making of asylum seekers. London:
Home Office.
12. Sampson, R. (2013). Embodied borders: Biopolitics, knowledge mobilisation and alternatives toimmigration detention. PhD thesis, Politics, La Trobe University.
13. Sampson, R., & Mitchell, G. (2013).”Global trends in immigration detention and alternatives todetention: Practical, political and symbolic rationales. Journal on Migration and Human Security, 1(3),97-121. http://dx.doi.org/10.14240/jmhs.v1i3.14.
14. Sullivan, E., Mottino, F., Khashu, A., & O’Neil, M. (2000). Testing community supervision for the INS: An
evaluation of the appearance assistance program Volume 1. New York: Vera Institute for Justice.
15. UN High Commissioner for Refugees. (2012). Detention guidelines: Guidelines on the applicable
criteria and standards relating to the detention of asylum-seekers and alternatives to detention.
Geneva: UNHCR.

16. UN High Commissioner for Refugees. (2014). Beyond detention: A global strategy to support
governments to end the detention of asylum-seekers and refugees. Geneva: UNHCR. Available
at http://www.refworld.org/docid/536b564d4.html

77THERE ARE ALTERNATIVES (REVISED EDITION)

Glossary
TermDefinition

Absconding

Actions taken by a person to avoid contact with immigration authorities inorder to avoid legal migration proceedings and/or outcomes.

Alternative(s)Any law, policy or practice by which persons are able to reside in theto immigration

community, without being detained for migration-related reasons.

detention(‘alternatives’)
Alternative forms of

Any form of migration control which may not be officially recognised ordetention

classified as detention, but which amounts to de facto detention, by having theintended or unintended effect of substantially curtailing or completely denying
liberty and freedom of movement.

Asylum seeker

A person who has made an application to be recognised as a refugee, but who
has not yet received a final decision on that application.

Case management

A comprehensive and systematic service delivery approach designed toensure support for, and a coordinated response to, the health and wellbeingof people with complex needs. Case management centres on understanding
and responding to the unique needs and challenges of individuals and theircontext, including vulnerability, protection and risk factors.

Case resolution

A final outcome of a person’s immigration status including permission toremain in the territory, departure to the country of origin or country of habitualresidence, or departure to a third country.

Child

A person below the age of eighteen years.

ComplianceTo fulfil any conditions or immigration-related requirements expressly imposedby the relevant authorities on a person to regulate his/her stay in, or departure
from, the country.

Community

The wider society of the country. Community-based alternatives use
government and/or civil-society support to place and manage persons outsideof detention amongst the civilian population. The term is not used to reference
specific types of community, such as ethnic or location-based communities.

Conditions

Conditions are actions that individuals are required to undertake to achievecompliance. Conditions must be shown to be necessary and proportionate in
the individual case or their application will be arbitrary.

78

THERE ARE ALTERNATIVES (REVISED EDITION)

Term

Definition

Deportation

The act of a State to remove a person from its territory after the person has
been refused admission or has forfeited or never obtained permission toremain on the territory. A person may be deported to his or her country oforigin, habitual residence, or a third country.
In this Handbook, the term ‘deportation’ is used synonymously with ‘forced
removal’ and ‘expulsion’, unless otherwise indicated. It is noted that theseterms may have different usages and meanings under different national andinternational laws.

Deprivation of liberty

Any form of detention or imprisonment or the placement of a person in a
public or private custodial setting which that person is not permitted to leaveat will by order of any judicial, administrative or other authority. Optional
Protocol to the UN Convention against Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment (OPCAT), Art. 4(2)Guardian

The legally recognised relationship between a designated competent adultand a child or disadvantaged person in order to assure and safeguard theprotection of her or his rights. A guardian has a range of powers, rights andduties, including exercising rights on behalf of the child and protecting thebest interests of the child.

Immigration detention

The deprivation of liberty for migration-related reasons.

Independent

Compliance with the obligation to depart a country within a specified time

departure

period and without government escort, whether to the migrant’s countryof origin, country of habitual residence, or a third country. (c.f. voluntary
departure).

IOM

International Organization for Migration

Irregular migrant

A migrant who does not fulfil, or no longer fulfils, the conditions of entry, stayor residence within a State.

Migrant

A person who is outside of a State of which he or she is a citizen, national or
habitual resident. Persons are migrants regardless of whether their migration
is temporary, lawful, regular, irregular, forced, for protection, for economic
reasons, or for any other reason.

RefugeeA person who fulfils the definition of a “refugee” in the 1951 Convention and1967 Protocol relating to the Status of Refugees or any regional refugee
instrument. The recognition of refugee status is a declaratory act and therights of refugees are invoked before their status is formally recognised by adecision-maker. For this reason, in this Handbook, unless specifically indicatedto the contrary and particularly where a distinction is necessary in relation tocase resolution, the term “refugee” includes reference to asylum seekers.

79THERE ARE ALTERNATIVES (REVISED EDITION)

Term

Definition

Regularisation

Regularisation is one process through which undocumented migrants gain
legal immigration status. Regularisation includes both one-off initiatives
available for a set period (also called ‘amnesties’) and ongoing programs. It
may be aimed at specific groups or on a case-by-case basis for reasons suchas humanitarian protection, medical needs or family unity.

Restrictions

Restrictions are limitations that can be placed on an individual to help achievecompliance. Restrictions imply some degree of restriction on a person’s liberty
or freedom of movement, and must always be shown to be necessary andproportionate in the individual case, otherwise will be arbitrary.

Separated child

A child ‘separated from both parents, or from their previous legal or customary
primary caregiver, but not necessarily from other relatives. These may,therefore, include children accompanied by other adult family members.’
Committee on the Rights of the Child, General Comment No.6 (2005),
Treatment of Unaccompanied and Separated Children Outside their Countryof Origin.

Stateless person

A person who is not considered as a national by any State under the operationof its law. Article 1 of the 1954 Convention relating to the Status of Stateless
Persons. In this Handbook, the term “stateless person” also includes reference
to persons at risk of statelessness.

Trafficked person

A trafficked person is defined as a person who has been recruited,transported, transferred, harboured or received by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of deception, of theabuse of power or of a position of vulnerability or of the giving or receivingof payments or benefits to achieve the consent of a person having control
over another person, for the purpose of exploitation. UN General Assembly,
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and Children, Supplementing the United Nations Convention against
Transnational Organized Crime, 15 November 2000.

Unaccompanied child

A child who has been ‘separated from both parents and other relatives’ and is‘not being cared for by an adult who, by law or custom, is responsible for doingso.’ Committee on the Rights of the Child, General Comment No.6 (2005),
Treatment of Unaccompanied and Separated Children Outside their Countryof Origin.

UNHCR

Office of the United Nations High Commissioner for Refugees

Voluntary departure

The decision of a person to depart the country entirely voluntarily, whether tohis or her country of origin, country of habitual residence or a third country.
Voluntary departure may take place even when legal avenues to pursue
residency in that country remain available. (c.f. independent departure)80

THERE ARE ALTERNATIVES (REVISED EDITION)

Appendix A – Research methods
Research Project #1
The particular aim of this research was to
identify and describe examples of community-based alternatives to immigration
detention. The specific objectives were to:Æ Identify the policy objectives underlying
the use of immigration detention.

Æ Identify key examples in the managementof asylum seekers, refugees and migrants
which fulfil these policy objectives outsideof detention.

Æ Identify the range of alternatives todetention that are currently operatinginternationally, and describe in detail key
examples in various contexts/regions,
including examples with vulnerable
individuals.

Æ Describe the role of governments and their
institutions in creating and implementing
alternatives to detention.

Æ Describe the role of non-governmentorganisations and civil society in creating
and sustaining the use of alternatives todetention.

tives to detention’ including both original
research and those based on existingmaterials; 2) evaluations of relevant policies
and programs by governments or consultants; and 3) ‘grey’ literature including policy
documents describing relevant laws, policies
or programs. In addition, relevant internationaland regional agreements were used to understand the context of migration regulation.

Stage 2: International internet-based survey
Based on the literature review and consultations with staff of the IDC, an Internetbased survey was undertaken in NovemberDecember 2009. An invitation to participate
was sent via e-mail through a range of
networks including members of the IDC, theForced Migration e-group and several otherinternational organisations and networks. We
had 88 survey responses from 28 countries(eight participants did not list a country). The
survey data was used to inform the international field work and was included for analysis
as part of the overall qualitative dataset.

Æ Describe the immigration outcomes andcost benefits where known.

Æ Explore the factors which are regarded
as contributing to the effectivenessof community-based alternatives todetention.
Data collection was undertaken inthree stages, with each step informing
the next stage of data collection.

Stage 3: International field work
Countries were selected for field work basedon a range of factors including type of alternative to detention program and target
population. In-depth field work was undertaken in eight countries between January
and March 2010. The field work included
interviews regarding broad policy issues
as well as specific alternative to detention
programs. Site visits included, inter alia:

Stage 1: Literature review

Æ a shelter for unaccompanied minors inThree types of literature were identified andreviewed as the first stage of data collection. This included 1) research on ‘alterna-

Æ an accommodation centre for asylum

Hungary;
seekers in Spain;

81

THERE ARE ALTERNATIVES (REVISED EDITION)Æ a shelter for destitute migrants in Spain;
Æ a return-counselling program for families
in Belgium;Æ an asylum seeker reception program in

migration; large numbers of refugees, asylum
seekers, stateless persons or irregularmigrants; and/or those with limited resources
available to manage such populations.

Sweden;Æ a detention centre in Sweden;Æ a shelter for undocumented migrants in the

Asia/PacificThailand, Indonesia, Pakistan, Malaysia

United States; andÆ a migrant support program in Hong Kong.

Middle East/North Africa
Yemen, Morocco, Jordan, Egypt

Additional interviews were undertaken withrepresentatives from international organisations located in Geneva, Switzerland.
A total of 43 interviews with 57 participantsand eight site visits were completed. Participants included representatives of governments, non-government organisations, international advocacy organisations and UN bodies.
Further details on the research methods
for this first project can be found atpages 14-15 of Sampson, R., Mitchell, G.
and Bowring, L. (2011). There are alternatives: A Handbook for Preventing Unnecessary Immigration Detention. Melbourne:
The International Detention Coalition.

Research Project #2
Consistent with the approach to IDC’s 2011
Handbook, qualitative research methods
were utilized to explore the laws, policies
and practices employed by governments tomanage refugees, asylum seekers, statelesspersons and irregular migrants in thecommunity without resorting to unnecessary and damaging immigration detention.
Qualitative methods were considered mostuseful in collecting the kind of information
required to fulfil the objectives of the research.
The following 20 countries were selected,
four from each of the following five regions:
the Americas, Asia-Pacific, Europe, Middle
East and North Africa, and South andEast Africa. Countries were chosen on thebasis that they were experiencing transit

82

South/East Africa
Uganda, Zimbabwe, Tanzania, Botswana

AmericasBrazil, Costa Rica, Ecuador, Mexico

EuropeMalta, Poland, Romania, Turkey

Data collection consisted of a literature
review for each country and region, as well as
in-depth interviews with governments, nongovernment organisations (local, regional
and international), and international bodies
and organisations working in migration
governance, related to detention and alternatives. Additional interviews were undertaken with regional and international experts
and academics in detention and alternatives.
These participants were identified through athematic literature review and in consultation
with IDC staff and members organisations.
International fieldwork/site observations
were also undertaken in three of the 20
countries, namely Turkey, Indonesia, andMexico in 2013. In-person interviews were also
conducted in Botswana, Indonesia, Jordan,
Mexico, Malaysia and Turkey. In-person interviews were limited due to financial andtime constraints. All other interviews weregenerally conducted remotely, using Skype or
telephone. Some interviews were conductedwith the assistance of an interpreter.

THERE ARE ALTERNATIVES (REVISED EDITION)Country

NGO (local orinternational)

Government

International
body

Yemen

0

0

2

Morocco000

Jordan

3

3

2

Egypt

1

0

1

Zimbabwe

0

0

0

Botswana

201

Tanzania

1

0

1

Uganda100Costa Rica

2

1

1

Mexico***Ecuador3

1

0

Brazil001Turkey412Poland3

10

Romania

1

1

1

Malta

1

0

0

Indonesia

3

0

2

Malaysia

6

2

1

Pakistan200Thailand3

0

0

TOTAL COUNTRIES

36*

10*

15*

4

EXPERT

2

3

1

TOTAL

38*

18*

5

TOTAL INTERVIEWS

10*

Other

2

2

71

83

THERE ARE ALTERNATIVES (REVISED EDITION)

Other sources of knowledge
These two studies were conducted specifically to identify alternatives across regions
and country contexts. An additional pieceof research on detention and alternatives in
Mexico was undertaken by the IDC Americas
office in 2012. That study involved fieldresearch and interviews with 32 participantsfrom government and from local, regional andinternational non-government organisations.
Finally, the IDC secretariat staff and member
groups have developed a significant body ofexpert knowledge on alternatives as a resultof their ongoing work on this issue for over
five years. IDC staff and members have run
and/or attended a series of major international, regional and national roundtables andconsultations on alternatives that have elicited
valuable information and insights that haveinformed the revision of the Handbook.

Limitations of the program of research
There are some limitations to the research.
First, the research was not designed todirectly evaluate the effectiveness of different
policies. Instead, this aspect of the findings
are based on the experience of those government representatives and service providers
interviewed and on the findings described inexisting research and government reports.
The relative paucity of evidence in some areasof policy means the correlation between
specific policies and levels of compliance,
cost and case resolution is not always entirely
clear. In particular, while the research identified programs believed to be better for
health and wellbeing, it did not evaluate this
impact or the ways in which they are experienced by refugees, asylum seekers, statelesspersons or irregular migrants themselves.
As a result, the experiences of those people
most directly impacted by these policies andprograms are absent. Evaluation of these84

policies for a range of stakeholders would beof great benefit to future work in this area.
Second, due to financial and time constraints,
in-person interviews were limited, withdata from other countries based on deskbased research and remote interviews.
Given the same questions were asked,
this is not a substantial limitation as IDC
considers that the remote interviews werestill able to provide equivalent information. Conducting remote interviews wasseen as an important method to overcome
geographical and financial limitations.
Third, there are potential limitations to theinterviews themselves due to the number ofinterviewers undertaking interviews, which
may have created inconsistencies in the dataobtained. Furthermore, some people did not
respond to IDC’s request for an interview,
were unable to be interviewed within thetimeframe or declined to be interviewed due
to organisational restrictions or a consideration that there were risks to being involvedin the research. As a result, IDC was unable
to fully triangulate the interview data insome countries and no interviews wereconducted for Morocco and Zimbabwe.

THERE ARE ALTERNATIVES (REVISED EDITION)

Endnotes1.

In this Handbook, ‘community’ refers to thewider society of the host country and not to aculturally-defined group with shared ethnicity or
language.

2.

Association for the Prevention of Torture, International Detention Coalition, and United Nations
High Commissioner for Refugees, Monitoring
Immigration Detention: Practical Manual, (APTand UNHCR, 2014), <http://idcoalition.org/publications/monitoring-immigration-detentionpractical-guide/>; UN High Commissioner for
Refugees, Guidelines on the Applicable Criteria
and Standards Relating to the Detention of
Asylum-Seekers and Alternatives to Detention,(Geneva: UNHCR, 2012).

3.

The number of international migrants worldwide
grew from 154 million in 1990 to 232 million
in 2013. See United Nations Department of
Economic and Social Affairs, ‘The Number ofInternational Migrants Worldwide Reaches 232
Million,’ Population Facts no. 2013/2 (UNDESA
Population Division, 2013), <http://esa.un.org/
unmigration/documents/The_number_of_international_migrants.pdf>

4.

United Nations Development Programme,
Human Development Report 2009: Overcoming
Barriers: Human Mobility and Development,(New York: UNDP, 2009), <http://hdr.undp.org/
en/reports/global/hdr2009/>

5.

In the 27 Member States of the European Union
in 2008, there were an estimated 28.9 million
foreign residents of which it is estimated that 1.9– 3.8 million were irregular: Vasela Kovacheva
and Dita Vogel, The Size of the Irregular Foreign
Resident Population in the European Union in
2002, 2005 and 2008: Aggregated Estimates,(Hamburg: Hamburg Institute of International
Economics, 2009), <http://irregular-migration.
hwwi.net/typo3_upload/groups/31/4.Background_Information/4.7.Working_Papers/WP4_
Kovacheva-Vogel_2009_EuropeEstimate_Dec09.pdf> In 2012, there was an estimated 11.2
million undocumented migrants in the UnitedStates, accounting for 26% of the total migrant
population: Jeffrey S. Passel and D’Vera Cohn,‘Unauthorized Immigrant Totals Rise in 7 States,
Fall in 14’ (Washington: Pew Research Center’s
Hispanic Trends Project, 2014). Comparative
figures for all regions are difficult to obtain: c.f.
Graeme Hugo, “Migration in the Asia-PacificRegion,” (Adelaide: Global Commission on International Migration, 2005).

6.

International Organization for Migration, World
Migration Report 2010. The Future of Migration:
Building Capacities for Change (2005) 29 <http://publications.iom.int/bookstore/free/
WMR_2010_ENGLISH.pdf>
7.

United Nations Development Programme,
Human Development Report 2009, (see n. 4).

8.

Amy Nethery and Stephanie J. Silverman, eds.
Immigration Detention: The Migration of a Policy
and Its Human Impact (Ashgate: Routledge,2015). For instance, the United States expanded
its detention capacity from 6,785 places per
day in 1994 to 34,000 per day in 2013: Global
Detention Project ‘United States detention
profile’ (March 2009) < http://www.globaldetentionproject.org/de/countries/americas/unitedstates/introduction.html >. For more details ofglobal detention capacities see Robyn Sampson
and Grant Mitchell, “Global Trends in Immigration Detention and Alternatives to Detention:
Practical, Political and Symbolic Rationales.”Journal on Migration and Human Security 1, no. 3(2013): 97-121.

9.

Michel Coutu and Marie-Helene Giroux, “TheAftermath of 11 September 2001: Liberty Vs.
Security before the Supreme Court of Canada,”
Int J Refugee Law 18, no. 2 (2006): 313-32;
Donald Kerwin, “The Use and Misuse of ‘National
Security’ Rationale in Crafting U.S. Refugee andImmigration Policies,” Int J Refugee Law, 17 no. 4(2005): 749-763.

10.

A good discussion can be found at Khalid Koser,
Irregular Migration, State Security and Human
Security, (London: Global Commission on International Migration, 2005), <http://www.gcim.
org/attachements/TP5.pdf>

11.

Gemma Aubarell, Ricard Zapata-Barrero, andXavier Aragall, “New Directions of National
Immigration Policies: The Development of theExternal Dimension and Its Relationship with
the Euro-Mediterranean Process,” In EuroMesco
Paper 79, 2009 http://www.iemed.org/
documents/EuroMeSCo%20Paper%2079_eng.
pdf; Global Detention Project ‘United States’(see n. 8); Derek Lutterbeck, “Policing Migrationin the Mediterranean,” Mediterranean Politics 11,
no. 1 (2006): 59 - 82; Savitri Taylor, “The Impactof Australia-PNG Border Management Cooperation on Refugee Protection,” Local-Global:
Identity, Security, Community (Special issue:
Beyond border control) 8 (2010): 76-99.

12.

Aubarell, Zapata-Barrero and Aragall, “NewDirections,” (see n. 11); Sandra Lavenex andEmek M. Uçarer, “The External Dimension ofEuropeanization,” Cooperation and Conflict 39,
no. 4 (2004): 417-43; Ricard Zapata-Barrero,
Johantan Zaragoza, and Xavier Aragall, “Cooperation and the Externalization of Borders and85

THERE ARE ALTERNATIVES (REVISED EDITION)

of Migration Policies: Spain’s New Political Orientations,” In New Directions of National Immigration Policies: The Development of the External
Dimension and Its Relationship with the EuroMediterranean Process, 2009, http://www.
euromesco.net/images/joint%20migration%20
report.pdf.
13.

Sampson and Mitchell, “Global Trends,” (see n.
8).

14.

The Global Detention Project aims to document
detention infrastructure internationally but
does not have a global estimate. For country
estimates see www.globaldetentionproject.org

15.

Much of this section was first published in April
2015 in the IDC Briefing Paper Does Detention
Deter? Written by Robyn Sampson. Available at
http://idcoalition.org/detentiondatabase/doesdetention-deter/

16.

Arjen Leerkes and Dennis Broeders, “A Case of
Mixed Motives? Formal and Informal Functionsof Administrative Immigration Detention,” British
Journal of Criminology 50, no. 5 (2010): 830-50.

17.

Alice Edwards, Back to Basics: The Right toLiberty and Security of Person and ‘Alternatives to Detention’ of Asylum-Seekers, Stateless
Persons, and Other Migrants, (Geneva: UNHCR,
2011).

18.

For instance, the Australian Minister for Immigration stated: “We already have the toughest
mandatory detention regime in the Westerndeveloped world, yet people still come toAustralia…So I don’t think mandatory detention
should be seen as a deterrent” in Michael Owen
and Tony Barrass, “Getting Tougher ‘Won’t
Stop Boats’ Says Chris Bowen,” The Australian,
November 2nd, 2010. http://www.theaustralian.com.au/news/nation/getting-tougherwont-stop-boats-says-chris-bowen/storye6frg6nf-1225946353586

19.

Edwards, Back to Basics (see n 17).

20.

Heather Crawley, Chance or Choice? Understanding Why Asylum Seekers Come to the UK.
(London: UK Refugee Council, 2010); Kate Day
and Paul White, “Choice or Circumstance: The
UK as the Location of Asylum Applications by
Bosnian and Somali Refugees,” GeoJournal
56, no. 1 (2002): 15-26; Alan Gilbert and Khalid
Koser, “Coming to the UK: What Do AsylumSeekers Know About the UK before Arrival?”
Journal of Ethnic and Migration Studies 32, no.
7 (2006): 1209-1225; Tetty Havinga and Anita
Bocker, “Country of Asylum by Choice or by
Chance: Asylum-Seekers in Belgium, the Netherlands and the UK,” Journal of Ethnic andMigration Studies 25, no. 1 (1999): 43-61; Thomas
Holzer, Gerald Schneider, and Thomas Widmer,“The Impact of Legislative Deterrence Measureson the Number of Asylum Applications in Swit-86

zerland (1986-1995),” International Migration
Review 34, no. 4 (2000): 1182; Eric Neumayer,“Asylum Destination Choice: What Makes Some
West European Countries More Attractive
Than Others?” European Union Politics 5, no. 2(2004): 155-80; Roslyn Richardson, “Sending a
Message? Refugees and Australia’s Deterrence
Campaign,” Media International Australia, no.
135 (2010): 7-18; Vaughan Robinson and Jeremy
Segrott, Understanding the Decision-Makingof Asylum Seekers, (London: Home Office,2002); Eiko Thielemann, Does Policy Matter? On
Governments’ Attempts to Control Unwanted
Migration, (San Diego: Center for Comparative
Immigration Studies, 2004).
21.

Robinson and Segrott, Understanding DecisionMaking (see n. 20).

22.

Day and White, “Choice or Circumstance,” (seen. 20); Gilbert and Koser, “Coming to the UK,”(see n. 20); Havinga and Bocker, “By Choice orby Chance” (see n. 20); Robinson and Segrott,Understanding Decision-Making (see n. 20).

23.

Richardson, “Sending a Message?” (see n. 20).

24.

Robinson and Segrott, Understanding DecisionMaking, (see n. 20).

25.

Richardson, “Sending a Message?” (see n. 20).

26.

Guy J. Coffey, Ida Kaplan, Robyn C. Sampson,and Maria Montagna Tucci, “The Meaning and
Mental Health Consequences of Long-Term
Immigration Detention for People Seeking
Asylum,” Social Science & Medicine 70, no. 12(2010): 2070-79.

27.

London Detainee Support Group, No Return,
No Release, No Reason: Challenging Indefinite Detention, (London: LDSG, 2010) http://
www.ldsg.org.uk/files/uploads/NoReasonReport0910.pdf In addition, airlines may refuse toaccept deportees on board if they are resisting
deportation: Matthew Gibney and Randall
Hansen, “Deportation and the Liberal State: The
Forcible Return of Asylum Seekers and Unlawful
Migrants in Canada, Germany and the United
Kingdom,” In New Issues in Refugee Research
Paper No. 77, (Geneva: UNHCR, 2003) 12.

28.

Mieke Kox, Leaving Detention? A Study on the
Influence of Immigration Detention on Migrants’
Decision-Making Processes Regarding Return,(The Hague: IOM, 2011).

29.

Coffey et al., “Meaning and Mental Health Consequences” (see n. 26).

30.

Richard Black, Khalid Koser, Karen Munk, Gaby
Atfield, Lisa D’Onofrio and Richmond Tiemoko,
Understanding Voluntary Return: Home Office
Online Report 50/04, (London: Home Office,2004); Robyn Sampson, Ignacio CorreaVelez, and Grant Mitchell, Removing Seriously

THERE ARE ALTERNATIVES (REVISED EDITION)

31.

Ill Asylum Seekers from Australia (Melbourne:
Refugee Health Research Centre, 2007).

naire Study,” Global Health Action 8 (2015), doi:
10.3402/gha.v8.28321.

Joris Van Wijk, Reaching out to the Unknown:
Native Counselling and the Decision-Making
Process of Irregular Migrants and Rejected
Asylum Seekers on Voluntary Return (The
Hague: IOM, 2008).

40. Physicians for Human Rights et al., From persecution to prison, 5 (see n 38).

32.

Anne Bathily, Immigration detention and its
Impact on Integration - A European approach(Milan: Foundazione ISMU, 2014).

33.

Equal Rights Trust, Unravelling Anomaly:
Detention, Discrimination and the Protection
Needs of Stateless Persons (London: The Equal
Rights Trust, 2010).

34.

London Detainee Support Group, No Return, No
Release, No Reason (see n. 27).

35.

B van Alphen, T Molleman, A Leerkes, J van
Hoek, Van bejegining tot vertrek – Eenonderzoek naar de werking van vreemdelingenbewaring (The Hague: Onderzoek en beleid 308,
Wetenschappelijk Onderzoek- en Documentatiecentrum, Ministerie van Veiligheid en Justitie,
2014), 150; A. Leerkes, E. Boersema, Het lot van
het inreisverbod, Memorandum 2014-2, (The
Hague: Wetenschappelijk Onderzoek- en Documentatiecentrum, Ministerie van Veiligheid en
Justitie, 2014), http://www.wodc.nl/images/
mem2014- 2-volledigetekst_tcm44-555776.pdf; Mark Provera, “The Criminalisation of Irregular
Migration in the European Union,” in CEPS Paper
in Liberty and Security in Europe, 80 (2015).

36.

Coffey et al., “Meaning and Mental HealthConsequences” (see n. 26); Axel Klein andLucy Williams, “Immigration Detention in theCommunity: Research on the Experiences ofMigrants Released from Detention Centres in
the UK,” Population, Space and Place 18, no. 6(2012): 741-753.

37.

Coffey et al., “Meaning and Mental Health Consequences” (see n. 26).

38.

Physicians for Human Rights and the Bellevue/
NYU Program for Survivors of Torture, From
Persecution to Prison: the Health Consequencesof Detention for Ssylum Seekers (Boston & New
York: PHR and The Bellevue/NYU Program for
Survivors of Torture, 2003); Katy Robjant, Rita
Hassan, and Cornelius Katona, “Mental Health
Implications of Detaining Asylum Seekers:
Systematic Review,” The British Journal of
Psychiatry 194 (2009): 306-12; Zachary Steeland Derrick Silove, “The Mental Health Implications of Detaining Asylum Seekers.” eMedical
Journal of Australia 175 (2001): 596 - 99.

39.

Soorej Jose Puthoopparambil, Magdalena
Bjerneld, and Carina Källestål, “Quality of Life
Among Immigrants in Swedish Immigration
Detention Centres: A Cross-Sectional Question-

41.

Kathy Eagar, Janette Green, Kerry Innes, Lauren
Jones, Carmel Cheney-Fielding, Peter Samsa,
and Peter Eklund, The Health of People inAustralian Detention Centres - Health Profile andOngoing Information Requirements, (Wollongong, NSW: Centre for Health Service Development, University of Wollongong, 2007);
Aamer Sultan and Kevin O’Sullivan, “Psychological Disturbances in Asylum Seekers Held inLong Term Detention: A Participant-Observer
Account,” eMedical Journal of Australia 175(2001): 593 - 596.

42.

Ann Lorek, Kimberly Ehntholt, Anne Nesbitt,
Emmanuel Wey, Chipo Githinji, Eve Rossor, andRush Wickramasinghe, “The Mental and Physical
Health Difficulties of Children Held within a
British Immigration Detention Center: A Pilot
Study,” Child Abuse & Neglect 33, no. 9 (2009):
573-85; Sarah Mares and Jon Jureidini, “Psychiatric Assessment of Children and Families in
Immigration Detention - Clinical, Administrativeand Ethical Issues,” Australian and New Zealand
Journal of Public Health 28, no. 6 (2004):
520-26; Zachary Steel, Shakeh Momartin,
Catherine Bateman, Atena Hafshejani, Derrick M.
Silove, Naleya Everson, Konya Roy, et al. “Psychiatric Status of Asylum Seeker Families Heldfor a Protracted Period in a Remote Detention
Centre in Australia,” Australian and New Zealand
Journal of Public Health 28, no. 6 (2004):
527-36; Zachary Steel and Louise Newman, “TheChild Asylum Seeker: Psychological and Developmental Impact of Immigration Detention,”Child and Adolescent Psychiatric Clinics of North
America 17, no. 3 (2008): 665-683.

43.

Coffey et al., “Meaning and Mental Health Consequences” (see n. 26); Masao Ichikawa, Shinji
Nakahara, and Susumu Wakai, “Effect of PostMigration Detention on Mental Health among
Afghan Asylum Seekers in Japan,” Australianand New Zealand Journal of Psychiatry 40,
no. 4 (2006): 341-46; Zachary Steel, Derrick
Silove, Robert Brooks, Shakeh Momartin, Bushra
Alzuhairi, and Ina Susljik, “Impact of Immigration Detention and Temporary Protection on the
Mental Health of Refugees,” British Journal of
Psychiatry 188 (2006): 58-64.

44. Tony Ward, Long-term Health Costs of Extended
Mandatory Detention of Asylum Seekers,(Melbourne: Yarra Institute for Religion andSocial Policy, 2011).
45.

The International Covenant on Civil and Political
Rights provides for the protection from arbitrary
detention in Article 9 and the protection of
freedom of movement in Article 12.

87

THERE ARE ALTERNATIVES (REVISED EDITION)

46. Discussed in full in Edwards, Back to Basics(see n 17); Isabel Ricupero and Michael Flynn,
Migration and Detention: Mapping the International Legal Terrain, (Geneva: Global Detention
Project, 2009).
47.

For this research, the responses varied, but,when the word “alternatives” was used, respondents either did not know what they were, wereadamant that none existed in their countries,
or spoke only in terms of certain types ofalternatives. When the interview questions
were framed substantively, details of alternative measures were forthcoming. For further
details on how different organisations define
and view alternatives see, for example, UN HighCommissioner for Refugees, Guidelines on the
Applicable Criteria and Standards Relating to
the Detention of Asylum-Seekers and Alternatives to Detention, (Geneva: UNHCR, 2012);
Equal Rights Trust, Unravelling Anomaly (see n.
33); European Union Agency for Fundamental
Rights, Detention of Third-Country Nationals in
Return Procedures: Thematic Report, (Vienna:
FRA, 2010), 72-81.

Group, 2009); Department of Immigration andCitizenship, Community Care Pilot and Status
Resolution Trial, (Canberra: DIAC, 2009); Lisa
Nandy, An Evaluative Report on the Millbank
Alternative to Detention Project, (London:
The Children’s Society and Bail for Immigration Detainees, 2009); Eileen Sullivan, Felinda
Mottino, Ajay Khashu, and Moira O’Neil, “Testing
Community Supervision for the INS: An Evaluation of the Appearance Assistance Program
Volume 1” (New York: Vera Institute for Justice,2000), http://www.vera.org/content/testingcommunity-supervision-ins-evaluation-appearance-assistance-program; Verbauwhede, Alternatives to Detention for Families with Minor
Children - The Belgium Approach (Belgian Presidency of the Council of the European Union,2010), http://idcoalition.org/wp-content/
uploads/2010/09/discussant_i_ _alternatives_
for_detention.pdf
53.

International Detention Coalition, Case Management as an Alternative to Immigration Detention:
The Australian Experience, (Melbourne: IDC,
2009); International Detention Coalition, Dignity
Without Exception: Alternatives to Immigration
Detention in Mexico, (Mexico City, Mexico: IDC,
2013); Grant Mitchell and Sara Kirsner, “Asylum
Seekers Living in the Australian Community:
A Casework and Reception Approach, Asylum
Seeker Project, Hotham Mission, Melbourne,”
Refuge, 22, no. 1 (2004): 119-28; Rutgers Schoolof Law - Newark Immigrant Rights Clinic andAmerican Friends Service Committee, Freed But
Not Free: A Report Examining the Current Useof Alternatives to Immigration Detention, (New
Jersey: Rutgers and AFSC, 2012); Susan Weishar,“A More Humane System: Immigration Detention
through Community-Based Alternatives (Part2),” JustSouth Quarterly, no. Spring (2011): 4 & 9.

54.

Department of Immigration and Citizenship,
Annual Report 2009-2010, (Canberra: DIAC,
2010) 159; Dita Vogel and Norbert Cyrus,
Irregular Migration in Europe - Doubts on the
Effectiveness of Control Strategies. (Hamburg:
Hamburg Institute of International Economics,
2008).

55.

Examples are provided in Section 4.

56.

Valerie Braithwaite, Compliance with Migration
Law: Report for the Department of Immigration
and Citizenship, (Canberra: DIAC, 2010); Costello
and Kaytaz Building Empirical Evidence (see n.
49); Ilan Katz, Abigail Powell, Sandra Gendera,
Tricia Deasy, and Erik Okerstrom, The Experiences of Irregular Maritime Arrivals Detained in
Immigration Detention Facilities: Final Report.
(Sydney: Social Policy Research Centre, University of New South Wales and Australian Survey
Research Group, 2013).

57.

Braithwaite, Compliance with Migration Law (seen. 56); Costello and Kaytaz, Building Empirical

48. Sampson and Mitchell, “Global Trends” (see n. 8).
49.

Natasa Chmelickova, ed. Survey on Alternatives to Detention of Asylum Seekers in EU
Member States, (Regional Advocacy Coalition,2006); Cathryn Costello and Ezra Kaytaz,
Building Empirical Evidence into Alternatives to Detention: Perceptions of AsylumSeekers and Refugees in Toronto and Geneva,(Geneva: UNHCR, 2013); European Migration
Network, The Use of Detention and Alternatives to Detention in the Context of Immigration
Policies: Synthesis Report for the EMN Focussed
Study 2014, (European Commission, 2014);
Ophelia Field and Alice Edwards, Alternatives
to Detention of Asylum Seekers and Refugees,(Geneva: UNHCR, 2006).

50.

Amnesty International, Irregular Migrants andAsylum-Seekers: Alternatives to Immigration
Detention, (London: Amnesty International,2009); Edwards, Back to Basics (see n 17); Field
and Edwards, Alternatives to Detention (see n.
49).

51.

Nina Siulc, Zhifen Cheng, Arnold Son, and Olga
Byrne, Legal Orientation Program: Evaluation
and Performance and Outcome Measurement
Report, Phase II, (New York: Vera Institute ofJustice, 2008). The lack of an evidence-base for
migration programs is discussed in International
Organization for Migration, Assessing the Costs
and Impacts of Migration Policy: An International
Comparison, (Geneva: IOM, 2008).

52.

Jane Aspden, Evaluation of the Solihull Pilot for
the United Kingdom Border Agency and theLegal Services Commission. (UKBA and LSC,
2008); Andrew Cranfield, Review of the Alternative to Detention (A2D) Project, (London: Tribal

88

THERE ARE ALTERNATIVES (REVISED EDITION)

Evidence (see n. 49); Katz et al., Irregular
Maritime Arrivals Detained (see n. 56).
58.

Costello and Kaytaz, Building Empirical Evidence(see n. 49).

59.

Edwards, Back to Basics (see n 17).

60. U.S. Government Accountability Office, Alternatives to Detention: Improved Data Collection
and Analyses Needed to Better Assess Program
Effectiveness (Washington, D.C.: US GAO, 2014),
http://www.gao.gov/products/GAO-15-26
30-31.
61.

Edwards, Back to Basics (see n 17).

62.

Email from the Director of the Toronto Bail
Project 30.07.2015. On file with the IDC.

63.

International Detention Coalition, Case Management as an Alternative (see n. 53).

64. Department of Immigration and Border Protection, Annual Report 2009-10 (Canberra: DIAC,
2010) 171.
65.

United Kingdom Home Office, UK Freedom ofInformation Request – 34114. On file with the IDC.

66.

Email from UNHCR Indonesia, 13 March 2015.
Copy on file with the IDC.

67.

Oral testimony of Julie Myers Wood. “S. 744
and the Immigration Reform and Control Act of
1986: Lessons Learned or Mistakes Repeated?”
Hearing before the U.S. House of Representatives Committee on the Judiciary, One
Hundred Thirteenth Congress, First Session
on s.744. 22 May 2013. http://judiciary.house.
gov/_cache/files/3498f4a0-82f4-4902-a73bda2d54055f44/113-30-81174.pdf 81.

68.

Of 19,905 third country nationals ordered
to leave, 12,988 returned voluntarily and 614
returned through an Assisted Voluntary Return
program. European Migration Network, “Country
Factsheet: Sweden 2012.” http://ec.europa.
eu/dgs/home-affairs/what-we-do/networks/
european_migration_network/reports/docs/
country-factsheets/sweden-emn-ountry-facthseet_en.pdf 6.

69.

Jesuit Refugee Service Europe, From Deprivation to Liberty: Alternatives to Detention in
Belgium, Germany, and the United Kingdom,(Brussels: JRS Europe, 2011).

70.

An analysis of such cost savings can also befound in Susan Banki and Ilan Katz, Resolving
Immigration Status Part 2: Comparative Case
Studies, (Sydney NSW: Social Policy ResearchCentre UNSW, 2009); Edwards, Back to Basics
84 (see n 17); Field and Edwards, Alternatives toDetention 48-50 (see n. 49).

71.

National Immigration Forum, The Math of Immigration Detention (2013) 1 http://www.immigra-

tionforum.org/images/uploads/mathofimmigrationdetention.pdf
72.

The annual cost of detaining an asylum seeker
in Australia was $239,000 in 2013-14: Australian
National Commission of Audit, The Report of the
National Commission of Audit (Canberra: NCOA,
2014) 10.14 http://www.ncoa.gov.au/report/
appendix-vol-2/10-14-illegal-maritime-arrivalcosts.html

73.

Cost to operate the Asylum Seeker Assistance
Scheme. Based upon the provision of assistance to 2802 persons at a cost of AUD 9.058
million during 2009-2010: Australia Department
of Immigration and Citizenship, Annual Report
2009-2010, (Canberra: DIAC, 2010), Administered Item – Payments to the Australian Red
Cross Society for the Asylum Seeker Assistance Scheme http://www.immi.gov.au/about/reports/annual/2009-10/html/outcome-2/
administered2-1-5.htm

74.

Cost to operate the Community Care Pilot at
AUS$5.6 million for 2008/9 with a maximum of
400 people in the pilot during this period, withan average daily cost of AUD $38.30. Excludes
case management costs. See Joint Standing
Committee on Migration, “Inquiry into Immigration Detention in Australia: Report 2 – Community-Based alternatives to Detention,”(Canberra:
Commonwealth of Australia, 2009), 122 http://
www.aph.gov.au/Parliamentary_Business/
Committees/Joint/Completed_Inquiries/mig/
detention/report2

75.

Philippe De Bruycker (Ed.), Alice Bloomfield, Evangelia (Lilian) Tsourdi, and Joanna
Pétin, “Alternatives to Immigration and Asylum
Detention in the EU: Time for Implementation,” (Odysseus Network and the European
Union, 2015), 129 http://odysseus-network.eu/
wp-content/uploads/2015/02/FINAL-REPORTalternatives-to-detention-in-the-EU.pdf

76.

De Bruycker, “Alternatives in the EU,” 129 (seen. 75).

77.

Figures for 2013. Quoted in European Migration
Network, The Use of Detention and Alternatives to Detention in the Context of Immigration Policies in Belgium, (Brussels: EMN, 2014),
http://www.emnbelgium.be/publication/detention-and-alternatives-detention-belgium

78.

EMN, Immigration Policies Belgium, see (n.77).
Although data for 2013 could not be located,the cost per day per person for housing andassisting asylum-seekers in open centres was¤53 in 2009 (approximately USD $68). Mieke
Candaele, spokesperson for FEDASIL, quoted
in UNHCR, “Alternatives to the Detentionof Asylum-Seekers in Belgium,” (UNHCR,
November 2011), http://www.refworld.org/
docid/524fc3ef4.html

89THERE ARE ALTERNATIVES (REVISED EDITION)

79.

Edwards, Back to Basics (see n 17).

Australasian Psychiatry, 11 Supplement, (2003):
96-101.

80. Edwards, Back to Basics (see n 17).
81.

Edwards, Back to Basics (see n 17).

82.

This figure is for shelters for unaccompanied refugee and asylum seeking children. This
includes rental of premises, weekly allowances,
security, supplies, and activities for the children,
but excludes health care costs and the initialpurchase of furniture and equipment. Email fromUNHCR Indonesia, 2015. On file with the IDC.

83.

U.S. GAO, Improved Data Collection 19 (see n.
60).

84.

ISAP program. U.S. GAO, Improved Data Collection 19 (see n. 60).

85.

Interview during fieldwork by Robyn Sampson.

86.

UK National Audit Office, Returning failed
asylum applicants, (London: The Stationary
Office, 2005) 44.

87.

Given some costs are the same across these twomodels (i.e. airfares and some staffing costs);
the comparison is demonstrated by comparing
the ‘non-common costs’ (i.e. location, detention
versus counselling, allowances). This allows
for a conservative estimate of the costs to becompared. Senate Legal and Constitutional
Legislation Committee, Additional Budget
Estimates Hearing: Immigration and Citizenship Portfolio, (2009) http://www.aph.gov.au/
senate/committee/legcon_ctte/estimates/
add_0809/diac/38.pdf

88.

89.

See Medical Justice, Review into Ending the
Detention of Children for Immigration Purposes:
Response by Medical Justice, (2010) quoted in
Edwards, Back to Basics (see n 17).
O’Brien, Natalie, “Asylum Compo Bill Tops
$16m,” The Sydney Morning Herald, June 12 2011.

90. Ward, Long Term Health Costs (see n. 44).
91.

As described in detail in Section 1.3.3. See
also Ichikawa et al. “Effect of Post-Migration
Detention (see n. 43); Steel et al. Impact ofDetention (see n 43).

92.

Coffey et al., “Meaning and Mental Health Consequences” (see n. 26).

93.

90

Cornelis J. Laban, Ivan H. Komproe, Hajo B. P. E.
Gernaat, and Joop T.V.M. de Jong. “The Impactof a Long Asylum Procedure on Quality of Life,
Disability and Physical Health in Iraqi Asylum
Seekers in the Netherlands.” Social Psychiatry
and Psychiatric Epidemiology 43, no. 7 (2008):
507-15; Susan Rees, “Refuge or Retrauma?
The Impact of Asylum Seeker Status on the
Wellbeing of East Timorese Women Asylum
Seekers Residing in the Australian Community,”

94.

Ilan Katz, Geraldine Doney, and Effie Mitchell,
Evaluation of the Expansion of the Community
Detention Program: Final Report to the Department of Immigration and Citizenship, (Sydney:
Social Policy Research Centre, UNSW, 2013) 8.

95.

Katz, Evaluation of Community Detention (seen. 94).

96.

Australian Human Rights Commission, Immigration Detention at Villawood: Summary of Observations from Visit to Immigration Detention Facilities at Villawood, (Canberra: AHRC, 2012), 16.

97.

For instance, evidence suggests returned asylum
seekers who were detained in Australia for long
periods were in a much more difficult position
trying to re-establish life than returned asylum
seekers who had not been detained: David
Corlett, Following Them Home: The Fate of the
Returned Asylum Seekers. (Melbourne: Black
Inc., 2005) 59. See Sampson, Correa-Velez and
Mitchell Removing Seriously Ill Asylum Seekers(see n. 30) regarding the impact of poor healthon the ability to prepare for return and Coffey etal., “Meaning and Mental Health Consequences”(see n. 26) regarding the difficulties faced byformer detainees in building a new life after
release with a visa.

98.

Field and Edwards argue that asylum seekers intheir destination country want to comply withauthorities while waiting for a visa outcome inorder to secure their future legal status, Field
and Edwards, Alternatives to Detention (see n.
49).

99.

UNHCR, Refugee Protection and Mixed
Migration: A 10-point Plan of Action, (Geneva:
UNHCR, 2007). For a discussion of thedifferent types of irregular migrants see
Ryszard Cholewinski and Kristina Touzenis,“Irregular Migration into and through Southernand Eastern Mediterranean Countries: Legal
Perspectives,” In CARIM Analytic and Synthetic
Notes 2009/01 (Florence: Consortium forApplied Research on International Migration,2009) and Vogel and Cyrus Irregular Migrationin Europe (see n. 54).

100. See also Section 2.4.1. This was evident in fieldwork in Spain, Sweden, Hong Kong and theNetherlands. This finding is evident in Field
and Edwards, Alternatives to Detention (seen. 49); Mitchell and Kirsner Casework andReception Approach (see n. 53); Sullivan et al.,“Testing Community Supervision” (see n. 52).
It is important to note that transit or destination status can only be established on a caseby-case basis for each individual (see Section
6.4.3).

THERE ARE ALTERNATIVES (REVISED EDITION)

101. Field and Edwards, Alternatives to Detention, iv(see n. 49).

that shows refugees’ mental health is significantly associated with current socio-politicalcircumstances: Matthew Porter and Nick Haslam,“Predisplacement and Postdisplacement Factors
Associated with Mental Health of Refugees andInternally Displaced Persons: A Meta-Analysis,”
Journal of American Medical Association 294,
no. 5 (2005): 602-12. For a discussion on theimportance of supporting health throughout
the assessment process, see Ignacio CorreaVelez, Vanessa Johnston, Joanne Kirk, andAngeline Ferdinand, “Community-Based Asylum
Seekers’ Use of Primary Health Care Services
in Melbourne,” The Medical Journal of Australia
188, no. 6 (2008): 344-348; Sampson, CorreaVelez and Mitchell Removing Seriously Ill Asylum
Seekers (see n. 30).

102. See Rutvica Andrijasevic, “Lampedusa in Focus:
Migrants Caught between the Libyan Desert andthe Deep Sea,” Feminist Review 82, no. 1 (2006):
120-25; Jacqueline Hagan, Karl Eschbach, andNestor Rodriguez, “U.S. Deportation Policy,
Family Separation, and Circular Migration,” TheInternational Migration Review 42, no. 1 (2008):
64; Stephen H. Legomsky, “The USA and the
Caribbean Interdiction Program,” Int J Refugee
Law 18, no. 3-4 (2006): 677-95; Janet Phillips
and Harriet Spinks, “Background Note: Boat
Arrivals in Australia since 1976,” (Canberra:
Parliamentary Library, Commonwealth ofAustralia, 2011).
103. See also Section 5 Minimum Standards. Thiswas evident in field work in Sweden, Belgiumand Hong Kong. This finding is supported by
the findings of Edwards, Back to Basics (seen 17); Jesuit Refugee Service Europe, From
Deprivation to Liberty, (see n. 69); Field and
Edwards, Alternatives to Detention 30-35(see n. 49); Lucy Fiske and Mary Ann Kenny,“‘Marriage of Convenience’ or ‘Match Made in
Heaven’: Lawyers and Social Workers Working
with Asylum Seekers.” Australian Journal of
Human Rights 10, no. 1 (2004): 137-57; Fleay,
Caroline, and Lisa Hartley. 2015. “‘I Feel Like a
Beggar’: Asylum Seekers Living in the AustralianCommunity Without the Right to Work.” Journalof International Migration and Integration (2015):
1-18, doi: 10.1007/s12134-015-0453-x; Lutheran
Immigration and Refugee Service, Alternatives to Detention Programs: An International
Perspective, (Washington, D.C.: LIRS, 2009);
Mitchell and Kirsner Casework and Reception
Approach (see n. 53).
104. For a discussion, see Jesuit Refugee Service
Europe Living in Limbo: Forced Migrant Destitution in Europe (Brussels: Jesuit Refugee Service
Europe, 2010). http://www.jrseurope.org/publications/JRS%20Europe%20Living%20in%20
Limbo%20-18-18h.pdf
105. Alice Bloch and Liza Schuster, “Asylum and
Welfare: Contemporary Debates,” Critical Social
Policy 22, no. 3 (2002): 393-414; Wayne A.
Cornelius, “Controlling ‘Unwanted’ Immigration:
Lessons from the United States, 1993-2004,”
Journal of Ethnic and Migration Studies 31, no. 4(2005): 775-94; Sylvie Da Lomba, “The Threatof Destitution as a Deterrent against Asylum
Seeking in the European Union,” Refuge 23, no.
1 (2006): 81-93; Thielemann Does Policy Matter(see n. 20).
106. Hildegard Dumper, Richard Malfait, and Nick
Scott Flynn, Mental Health, Destitution & Asylum
Seekers: A Study of Destitute Asylum Seekers in
the Dispersal Areas of the South East of England,(South of England Refugee & Asylum Seeker
Consortium, 2006). This coincides with research

107. This is discussed in more detail in Sections 7
Case management and 5.4 Legal advice. Thisfinding was evident in the United Kingdom,
Sweden, the United States, Australia, Belgium
and reinforced by the findings of Aspden, Evaluation of the Solihull Pilot (see n. 52); Edwards,
Back to Basics (see n 17); Field and Edwards,
Alternatives to Detention 45 (see n. 49); Fiske
and Kenny, “Marriage of Convenience” (see n.
103); Hotham Mission Asylum Seeker Project,
Providing Casework to Asylum Seekers at the
Final Stages: Discussion Paper, (Melbourne:
Hotham Mission, 2006), http://idcoalition.org/
paper-providing-casework-to-asylum-seekersat-the-final-stages/ ; Sullivan et al., “Testing
Community Supervision” (see n. 52).
108. Edwards, Back to Basics (see n 17) regarding the
Glasgow ‘family return project’. See also Jesuit
Refugee Service Europe, From Deprivation to
Liberty (see n. 69).
109. This was evident in Hungary, Hong Kong andSpain. Unfortunately, there is very little data
establishing the effectiveness of community
management options in ‘transit’ countries. Some
research points to the ways ‘transit’ countries
are actually destination countries for many
people: “it is a misconception that all or mostmigrants crossing the Sahara are “in transit” toEurope. There are possibly more sub-SaharanAfricans living in the Maghreb than in Europe…
While Libya is an important destination country
in its own right, many migrants failing or not
venturing to enter Europe prefer to stay in North
Africa as a second-best option.” Hein de Haas,“Irregular Migration from West Africa to the
Maghreb and the European Union: An Overview
of Recent Trends,” In IOM Migration Research
Series, (Geneva: International Organization for
Migration, 2008) 9.
110. Field and Edwards, Alternatives to Detention, 51(see n. 49).
111.

MHub, Detained Youth: The Fate of Young
Migrants, Asylum-Seekers and Refugees in Libya
Today, (MHub, 2015), http://www.mixedmigra-

91

THERE ARE ALTERNATIVES (REVISED EDITION)

tionhub.org/wp-content/uploads/2015/07/
MHUB_2015_Detained-Youth.pdf
112.

Edwards, Back to Basics, (see n 17).

113. The United Nations Office of the High Commissioner for Human Rights (OHCHR) has
developed a set of guidelines and principles
on human rights-based migration governance.
The fundamental premise of these guidelines
and principles is that all migrants, regardless of
their legal status, how they arrive at the border,
where they come from or what they look like,are entitled to enjoy their human rights. See
OHCHR, Recommended Principles and Guidelines on Human Rights at International Borders,(Geneva: OHCHR, 2015) http://www.ohchr.org/
Documents/Issues/Migration/OHCHR_Recommended_Principles_Guidelines.pdf
114. For relevant international standards relating
to detention: see International Detention
Coalition, Legal Framework and Standards
Relating to the Detention of Refugees, Asylum
Seekers and Migrants, (Melbourne: IDC, 2011);
See also Amnesty International, MigrationRelated Detention: A Research Guide on Human
Rights Standards Relevant to the Detentionof Migrants, Asylum-Seekers and Refugees,(London: Amnesty, 2007) http://www.unhcr.
org/refworld/docid/476b7d322.html ; UNHCR,
Detention Guidelines (see n. 2).
115. For a discussion of the human rights that
underlie this presumption against detention,
see Edwards, Back to Basics (see n 17) andEuropean Union Agency for Fundamental
Rights, Detention of Third-Country Nationals,
80-81 (see n. 47).
116. Ruben Giustiniani, ed. Migración: Un Derecho
Humano (Migration: A Human Right), (Buenos
Aires: Prometeo, 2004); Cristina Zurbriggen
and Lenin Mondol, Estado actual y perspectivasde las políticas migratorias en el MERCOSUR(Current situation and perspectives of migration
policies in MERCOSUR), (Montevideo: FLACSO,
2010); Barbara Hines, “The Right to Migrate as a
Human Right: The Current Argentine Immigration Law,” Cornell Int’l L.J. 471 (2010); Also thegovernment reports: Argentine Republic, Initial
Report Submitted by the Argentine Republic
under Article 73 of the Convention on theProtection of the Rights of All Migrant Workers
and Members of Their Families, 4 August
2010, CMW/C/ARG/1; Informe Nacional de la
República Argentina sobre la Implementaciónde los Compromisos emanados de la Cuarta
Cumbre de las Américas (National Reports on
the Implementation of Commitments from the
Fourth Summit of the Americas), XLVII GRIC/SIRG Ministerial, GRIC/Inf.1/07, 22 May 2007.
117.

92

The Directive of the European Parliament andof the Council 2008/115/EC of 16 December
2008, on Common Standards and Proceduresin Member States for Returning Illegally Staying
Third-Country Nationals.
118. The Directive of the European Parliament and of
the Council 2013/180/96 of 26 June 2013, Laying
Down Standards for the Reception of Applicantsfor International Protection (Recast).
119. European Union Agency for Fundamental
Rights, Fundamental Rights: Challenges andAchievements in 2012, (Vienna: EU FRA, 2012).
120. European Migration Network, Synthesis Reportfor the EMN Focussed Study 34 (see n. 49).
121.

European Union Agency for Fundamental
Rights, Fundamental Rights, 80-81 (see n. 119).
The report identifies such case law in Austria,
Germany, Denmark, the Netherlands andSlovenia. Hong Kong case law has also requiredthat the government outline the reasons for
detention: Mark Daly, “Refugee Law in HongKong: Building the Legal Infrastructure,” Hong
Kong Lawyer 09 (2009): 14-30.

122. UN Committee on the Rights of the Child,
Report of the 2012 Day of General Discussion:
The Rights of all Children in the Context of International Migration, (2012) http://www2.ohchr.
org/english/bodies/crc/docs/discussion2012/
ReportDGDChildrenAndMigration2012.pdf
123. UN General Assembly, Report of the Special
Rapporteur on the Human Rights of Migrants,
François Crépeau. A/HRC/20/24 (2012). para
72(f); see also Platform for International Cooperation on Undocumented Migrants (PICUM),
Children First and Foremost: A Guide to
Realizing the Rights of Children and Families in
an Irregular Migrant Situation, (PICUM, 2013)
http://picum.org/picum.org/uploads/publication/Children%20First%20and%20Foremost.pdf
124. UN General Assembly, Report of the Special
Rapporteur para 72(f) (see n. 123).
125. UNICEF, Administrative Detention of Children:
A Global Report, (Geneva: UNICEF, 2011), 167,
226, 229.
126. Michael Dudley and Bijou Blick, The Heart of the
Nation’s Existence – A Review of Reports on theTreatment of Children in Australian Detention
Centres, (ChilOut, 2002) Appendix E; Sarah
Mares and Jon Jureidini, “Psychiatric Assessment of Children and Families in Immigration
Detention - Clinical, Administrative and EthicalIssues.” Australian and New Zealand Journal of
Public Health 28, no. 6 (2004): 520-526; Human
Rights and Equal Opportunity Commission, A
Last Resort? National Enquiry into Children in
Detention, (Canberra: HREOC, 2004); Zachary
Steel, “The Politics of Exclusion and Denial:
The Mental Health Costs of Australia’s Refugee
Policy,” Australian and New Zealand Journal of
Psychiatry 37, (2003): A45-A46.

THERE ARE ALTERNATIVES (REVISED EDITION)

127. “Incarceration, even under relatively safe conditions, is damaging for immigrant children, especially those with high levels of previous trauma
exposure” in Rachel Kronick, Cécile Rousseau,
and Janet Cleveland. “Asylum-Seeking Children’s
Experiences of Detention in Canada: A Qualitative Study,” American Journal of Orthopsychiatry, 85, no. 3 (2015): 287-94. See also David
Corlett, Grant Mitchell, Jeroen Van Hove, Lucy
Bowring and Katherine Wright, Captured
Childhood, (Melbourne: International Detention
Coalition, 2012) 51; Lorek et al., ‘Children in
Detention” (see n. 42).
128. Kronick, Rousseau and Cleveland, “Asylumseeking children’s experiences of detention” (seen. 127).
129. See also UNHCR and IRC, Field Handbook
for the Implementation of UNHCR BID Guidelines, (Geneva: UNHCR and IRC, 2011); UNHCR,UNHCR Guidelines on Determining the BestInterests of the Child, (Geneva: UNHCR, 2008).
130. Terry Smith and Laura Brownlees, Age Assessment Practices: A Literature Review & Annotated
Bibliography, (New York: UNICEF, 2011).
131. Corlett et al., Captured Childhood, 65 (see n. 127)
132. Corlett et al., Captured Childhood, 65 (see n. 127)
133. UN Committee on the Rights of the Child,
General Comment No. 6: Treatment of Unaccompanied and Separated Children outside theirCountry of Origin (2005), http://daccess-ddsny.un.org/doc/UNDOC/GEN/G05/438/05/PDF/
G0543805.pdf?OpenElement
134. European Union Agency for Fundamental
Rights, Guardianship for Children Deprived of
Parental Care - A Handbook to Reinforce Guardianship Systems to Cater for the Specific Needsof Child Victims of Trafficking, (Luxembourg:
Publication Office of the European Union, 2014).
135. UN Committee on the Rights of the Child,
General Comment No. 6, para 33 (see n. 133).
136. European Union Agency for Fundamental
Rights, Guardianship (see n. 134).
137. Section 56 of Hungary’s Act II of 2007 also
provides that children with families may bedetained as a measure of last resort and for a
maximum of 30 days, where the best interestsof the child shall be a primary consideration, andif the immigration authorities are of the opinion
that the objectives of detention cannot be metby the confiscation of travel documents or adesignated residence requirement.
138. European Migration Network, Policies, Practices
and Data on Unaccompanied Minors in 2014:
Hungary, (European Commission, 2014) http://
ec.europa.eu/dgs/home-affairs/what-wedo/networks/european_migration_network/

reports/docs/emn-studies/unaccompaniedminors/13a_hungary_unaccompanied_minors_
en.pdf139. European Migration Network, Policies, Practices
and Data Hungary (see n. 138).
140. European Migration Network, Policies, Practices
and Data Hungary (see n. 138).
141. European Union Agency for Fundamental
Rights, Fundamental Rights: Challenges andAchievements in 2014, (Vienna: EU FRA. 2014),
http://fra.europa.eu/sites/default/files/fraannual-report-2014_en.pdf; UNHCR, Detention
Guidelines (see n. 2).
142. John A. Dent, Research Paper on the Social andEconomic Rights of Non-Nationals in Europe,(ECRE, undated).
143. As described in the above Section 2.5.
144. For a discussion, see Jesuit Refugee Service
Europe, Living in Limbo (see n.104).
145. Bloch and Schuster, “Asylum and Welfare:Contemporary Debates” (see n. 105); Cornelius“Controlling ‘Unwanted’ Immigration” (see n.
105); Da Lomba, “The Threat of Destitution” (seen. 105); Thielemann Does Policy Matter (see n.
20).
146. Dumper et al., Mental health, Destitution &Asylum Seekers (see n. 106). c.f. Hotham Mission
Asylum Seeker Project, Providing Casework,(see n. 107); Sampson, Correa-Velez and MitchellRemoving Seriously Ill Asylum Seekers (see n.
30).
147. As described in Section 2.5.
148. Council of the European Union, Directive
2013/33/EU, Article 17 (see n. 118).
149. Council of the European Union, Directive
2013/33/EU, Article 15 (see n. 118).
150. Information in this break out box is from interviews and site visits, with further references as
noted.
151. “[B]earing in mind that the general objective ofa C.A.R. is to develop the capacity of the Centre
resident’s integration in Spanish society, theCentre operates as a mediating agent in the integration process” Ministerio de Trabajo y Asuntos
Sociales, Refugee Reception Centres (C.A.R.),(Madrid: Calidad Administracion Publica, 2007).
152. Ministerio de Trabajo y Asuntos Sociales, C.A.R.:
Refugee Reception Centre, (Madrid: Ministeriode Trabajo y Asuntos Sociales, 2006).
153. UNHCR, Submission by the UNHCR for the
OHCHRs Compilation Report Universal Periodic
Review Spain, (Geneva: UNHCR, 2009).

93THERE ARE ALTERNATIVES (REVISED EDITION)

154. For a discussion of the role of visas on resolving
migration status, see Susan Banki and Ilan Katz,
Resolving Immigration Status Part 1: Review of
the International Literature, (Sydney NSW: Social
Policy Research Centre UNSW, 2009); Banki andKatz, Resolving Immigration Status Part 2 (seen. 70).
155. UNHCR, Options Paper 2: Options for Government on Open Reception and Alternatives toDetention, (Geneva: UNHCR, 2015) 6.
156. Tolerated status is granted to persons satisfying
the criteria laid out in article 99 of Romania’s
Emergency Ordinance 194/2002 on alien’s
regime in Romania. This includes persons
against whom a detention order was made but
who could not be returned within 6 months;
persons for whom there are serious reasons tobelieve are victims of human trafficking; andpersons detained for deportation, but who could
not be removed within 2 years.
157. European Migration Network, Synthesis Reportfor the EMN Focussed Study, 34 (see n. 49).
158. As described in Section 2.4.1 and 2.5. The importance of provision of information has been identified by Aspden, Evaluation of the Solihull Pilot(see n. 52); Field and Edwards, Alternatives toDetention 45 (see n. 49); and Lutheran Immigration and Refugee Service, An International
Perspective (see n. 103).
159. Costello and Kaytaz, Building Empirical
Evidence, 35 (see n. 49).
160. Ramji-Nogales, Schoenholtz and Schrag,“Refugee Roulette” (see n. 214).
161. American Bar Association, Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism
in the Adjudication of Removal Cases, (Washington DC: ABA, 2010); Aspden, Evaluation of
the Solihull Pilot (see n. 52).
162. Rutgers School of Law - Newark ImmigrantRights Clinic and American Friends Service
Committee, Freed But Not Free (see n. 53).
163. Telephone interpretation services are available
in some countries. For instance, a number ofcompanies provide telephone interpretation
services in Australia. This is especially usefulwhen there are a small number of bilingual
speakers for a particular language and for thosein rural areas. Telephone interpretation is not
ideal but it does improve communication andreduce the reliance on informal interpreters,such as family members.
164. Coffey et al., “Meaning and Mental Health Consequences” (see n. 26).
165. London Detainee Support Group, No Return,
No Release, No Reason (see n. 27). In addition,

94

airlines may refuse to accept deportees onboard if they are resisting deportation: Gibneyand Hansen, “Deportation and the Liberal State,”(see n. 27).
166. UNHCR, Detention Guidelines: Guidelines on the
Applicable Criteria and Standards Relating to theDetention of Asylum-Seekers and Alternatives toDetention, (Geneva: UNHCR, 2012), http://www.
unhcr.org/refworld/docid/503489533b8.html
167. UNHCR and OHCHR, Global Roundtable on
Alternatives to Detention of Asylum-Seekers,
Refugees, Migrants and Stateless Persons:Summary Conclusions, (May 2011) 31, http://
www.unhcr.org/refworld/docid/4e315b882.html
168. Rutgers School of Law - Newark ImmigrantRights Clinic and American Friends Service
Committee, Freed But Not Free, 17 (see n. 53).
169. European Union Agency for Fundamental
Rights, Handbook on European Law Relating to
Asylum, Borders and Immigration, (Vienna: EU
FRA, 2014), 165.
170. In Germany, immigration and asylum authorities, border guards and the police are responsible for conducting an individual assessment of
the grounds for detention, and will file an application for detention of a third-country nationalwith the courts. The final decision to detain
can only be made by the court. See European
Migration Network, Synthesis Report for the
EMN Focussed Study, 25 (see n. 49).
171.

Eleanor Acer, “Living up to America’s Values:
Reforming the U.S. Detention System for
Asylum Seekers,” Refuge 20, no. 3 (2004):
44-57; Vladeck, Stephen I. “Boumediene’s Quiet
Theory: Access to Courts and the Separationof Powers.” Notre Dame Law Review 84, no. 5(2009): 2107-2150.

172. For a discussion of the issues facing statelesspersons see Equal Rights Trust Unravelling
Anomaly (see n. 33).
173. For an in-depth description of this program see
Edwards Back to Basics (see n 17); Field and
Edwards Alternatives to Detention, 85-89 (seen. 49).
174. Edwards Back to Basics (see n 17).
175. Edwards Back to Basics (see n 17).
176. Email from the Director of the Toronto Bail
Project 30.07.2015. On file with the IDC.
177. European Union Agency for Fundamental
Rights, Handbook on European Law (see n. 169).
178. For instance, Australia has been found to be
in breach of the right to be protected fromarbitrary detention on at least five occasions due
to its mandatory immigration detention laws.
Australian Human Rights Commission, Migration

THERE ARE ALTERNATIVES (REVISED EDITION)

Laws Must Live up to Australia’s Human Rights
Commitments, Media release, August 6th 2006,
http://www.humanrights.gov.au/about/media/
media_releases/2006/59_06.htm
179. International Organization for Migration,
National Referral Mechanism (NRM) for theProtection of Vulnerable Migrants in Zambia,(IOM, undated), https://www.iom.int/files/live/
sites/iom/files/Country/docs/National-ReferralMechanism-NRM-for-the-Protection-of-Vulnerable-Migrants-in-Zambia.pdf
180. International Organization for Migration, Guidelines: Protection Assistance for Vulnerable
Migrants in Zambia. (IOM Development Fundand the European Union, undated), http://www.
iom.int/files/live/sites/iom/files/Country/docs/
Guidelines_Protection-Assistance-for-Vulnerable-Migrants.pdf
181. International Organization for Migration, Guidelines, Annex 1 (see n. 180).
182. International Organization for Migration, Training
Manual (Facilitator’s Guide): Protection Assistance for Vulnerable Migrants in Zambia, (IOM,
undated), https://www.iom.int/files/live/sites/
iom/files/Country/docs/Manual-ProtectionAssistance-for-Vulnerable-Migrants.pdf; International Organization for Migration, Participant
Handbook: Training on Protection Assistance for
Vulnerable Migrants in Zambia, (IOM, undated),
http://www.iom.int/files/live/sites/iom/files/
Country/docs/Participants-Handbook-Protection-Assistance-for-Vulnerable-Migrants.pdf
183. Kathleen King and Peter Vodicka, “Screening
for Conditions of Public Health Importance inPeople Arriving in Australia by Boat without
Authority,” eMJA 175 (2001): 600-02.
184. For a discussion of the issues of the deportationof individuals with a serious illness see Sampson,
Correa-Velez and Mitchell Removing Seriously Ill
Asylum Seekers (see n. 30).
185. Interview in Sweden.
186. Godfried Engbersen and Dennis Broeders, “TheFight against Illegal Migration: Identification
Policies and Immigrants’ Counterstrategies,”
American Behavioral Scientist 50, no. 12 (2007):
1592-609.
187. Costello and Kaytaz Building Empirical Evidence(see n. 49); Ilan Katz Abigail Powell, Sandra
Gendera, Tricia Deasy, and Erik Okerstrom,
The Experiences of Irregular Maritime Arrivals
Detained in Immigration Detention Facilities:
Final Report - SPRC Report 11/13, (Sydney: Social
Policy Research Centre, University of New South
Wales and Australian Survey Research Group,2013).
188. Citizenship and Immigration Canada, ENF 20:
Detention. (CIC, 2007), Section 5.8 http://

www.cic.gc.ca/english/resources/manuals/enf/
enf20-eng.pdf
189. Lutheran Immigration and Refugee Service,
Unlocking Liberty: A Way Forward for U.S. Immigration Detention Policy, (Baltimore, MD: LIRS,
2011) 19.
190. LIRS, “Unlocking Liberty”, 19 (see n. 189).
191. Mark Noferi and Robert Koulish, “The Immigration Detention Risk Assessment,” Georgetown
Immigration Law Journal 29 Advanced Access(2015): 45-93; Sampson and Mitchell, “Global
Trends” (see n. 8).
192. Jesuit Refugee Service Europe, Becoming
Vulnerable in Detention: Civil Society Reporton the Detention of Vulnerable Asylum Seekers
and Irregular Migrants in the European Union,(Brussels: JRS Europe, 2010).
193. Lynn Gillam, “Ethical Considerations in Refugee
Research: What Guidance do Australia’s
Research Ethics Documents Have to Offer?”
Paper presented at Researching Refugees andAsylum Seekers: Ethical Considerations at the
University of Melbourne, 17th November 2010;
JRS Europe, Becoming Vulnerable in Detention(see n. 192).
194. Article 17.1 of the EU Council of Ministers’
Directive 2003/9/EC Laying Down MinimumStandards for the Reception of Asylum Seekers
in Member States (Official Journal of theEuropean Union L 31/20, 6 February 2003) lists
the following vulnerable groups: “minors, unaccompanied minors, disabled people, elderly
people, pregnant women, single parents withminor children and persons who have been
subjected to torture, rape or other serious formsof psychological, physical or sexual violence”(Art. 17.1).
195. We note the age of an ‘elder’ in many countriesof origin can be much lower than the age associated with being elderly in destination countries:
Rebecca Atwell, Ignacio Correa-Velez, andSandra M. Gifford, “Ageing out of Place: Healthand Well-Being Needs and Access to Home andAged Care Services for Recently Arrived Older
Refugees in Melbourne, Australia,” International
Journal of Migration, Health and Social Care 3,
no. 1 (2007): 4-14.
196. In Canada, officers are instructed to consider
alternatives to detention and ensure detention
is avoided or considered as a last resort for theelderly: Citizenship and Immigration Canada,
ENF 20, Section 5.13 (see n. 188).
197. Laurel Anderson, “Punishing the Innocent:
How the Classification of Male-to-Female
Transgender Individuals in Immigration
Detention Constitutes Illegal Punishment under
the Fifth Amendment,” Berkeley Journal of
Gender, Law & Justice 25, no. 1 (2010): 1-31.

95

THERE ARE ALTERNATIVES (REVISED EDITION)

198. Interview in the United States.
199. Department of Immigration and Citizenship,
Fact Sheet 64: Community Assistance Support
Program. (Canberra: DIAC, 2009).
200. International Detention Coalition, Legal
Framework and Standards (see n. 114).
201. Eduardo Arboleda, “Refugee Definition in Africa
and Latin America: The Lessons of Pragmatism,”
Int J Refugee Law 3, no. 2 (1991): 185-207.
202. Instead, they are to be placed by the Ministryof Family and Social Policies in accommodation facilities in the care of their adult relatives
or in the care of a foster family (upon taking
into account the opinion of the unaccompanied
minor). Unaccompanied minors over the age of
16 can be placed in reception centers.
203. UNHCR, Refugee Protection and Mixed
Migration: The 10-Point Plan of Action, (Geneva:
UNHCR, 2012).
204. Field and Edwards Alternatives to Detention,
248 (see n. 49).
205. Coffey et al., “Meaning and Mental HealthConsequences” (see n. 26); Eagar et al., Healthin Immigration Detention (see n 41); Jesuit
Refugee Service Europe, Becoming Vulnerable in
Detention (see n. 192).

210. Cécile Rousseau, Marie-Claire Rufagari, Déogratias Bagilishya, and Toby Measham, “Remaking
Family Life: Strategies for Re-Establishing Continuity among Congolese Refugees During theFamily Reunification Process,” Social Science &Medicine 59, no. 5 (2004): 1095-1108; Brooke
Wilmsen and Sandra Gifford, Refugee Resettlement, Family Separation and Australia’s Humanitarian Programme, (Geneva: UNHCR, 2009).
211.

This is a factor in decisions to release in the
United States (Box 12), Hong Kong (Box 14) andCanada (Box 25). This is reinforced by claims
that it is easier, for the purposes of deportation,
to locate a person who entered a country legally
because of ongoing participation in established structures of society: Gibney and Hansen,
Deportation and the Liberal State (see n. 27).

212. As one study of recidivism amongst foreigners
found: “The findings do not lend support to thearguments that removable aliens pose a disproportionate risk of repeat involvement in local
criminal justice systems.” Jennifer S. Wong,
Laura J. Hickman, and Marika Suttorp-Booth,“Examining Recidivism among Foreign-Born
Jail Inmates: Does Immigration Status Make a
Difference over the Long Term?” Global Crime(2015): 17.
213. As described in Section 2.5.2.
214. As described in Section 2.5.2.

206. Equal Rights Trust Unravelling Anomaly (seen. 33); A Face to the Story, Point of No Return:
The Futile Detention of Unreturnable Migrants,(Brussels: Flemish Refugee Action (Belgium),
Detention Action (UK), France terre d’asile(France), Menedék – Hungarian Association for
Migrants, and ECRE, 2014), http://pointofnoreturn.eu/wp-content/uploads/2014/01/PONR_
report.pdf
207. Sullivan et al., “Testing Community Supervision,”
30 (see n. 52); Field and Edwards Alternatives toDetention, 25 (see n. 49).
208. Field and Edwards Alternatives to Detention,
27 (see n. 49); Jesuit Refugee Service Europe,
Alternatives to Detention of Asylum Seekers:
Working Paper, (Brussels: JRS Europe, 2008) 11.
209. For instance, the Hong Kong government lists
a lack of family or community ties as a factor
which might increase the likelihood of detention:“The detainee does not have fixed abode orclose connection (e.g. family or friends) in Hong
Kong to make it likely that he/she will be easily
located”. Security Bureau Immigration Department, Detention Policy, (Hong Kong SAR: The
Government of the Hong Kong Special Administrative Region, undated). Also evidenced infactors influencing decisions to release on bond:Field and Edwards Alternatives to Detention,
206 UK and 225 USA (see n. 49).

96

215. Disparities in the adjudication of refugee andvisa cases is well documented. Alongsideregular training and review of decision makers,
legal advice for applicants is a key factor for
promoting accurate and consistent decisions
across decision makers: Jaya Ramji-Nogales,
Andrew I. Schoenholtz, and Philip G. Schrag,“Refugee Roulette: Disparities in Asylum Adjudication,” Stanford Law Review 60, no. 2 (2007):
295(117).
216. Hotham Mission Asylum Seeker Project,
Providing Casework (see n. 107); Sampson,
Correa-Velez and Mitchell Removing Seriously Ill
Asylum Seekers (see n. 30).
217. Information in this break out box is from interviews and site visits, with further references as
noted. Detention policy has been influenced
heavily by decisions handed down in the cases
A, F, AS and YA v Director of Immigration[2008] HKCU 1109 (CACV 314-317 of 2007, 18
July 2008) and Hashimi Habib Halim v Directorof Immigration [2008] HKCU 1576 (HCAL 139 of
2007, 15 October 2008). For a discussion, see
Daly, “Refugee Law in Hong Kong” (see n. 121).
218. Security Bureau Immigration Department,
Detention Policy, (see n. 208).
219. Hong Kong SAR has introduced a specificprocess for migrants to apply for protection

THERE ARE ALTERNATIVES (REVISED EDITION)

from torture. See Daly, “Refugee Law in HongKong” (see n. 121).
220. Edwards Back to Basics (see n 17).
221. Hotham Mission Asylum Seeker Project,
Providing Casework (see n. 107); International
Detention Coalition, Case Management as an
Alternative (see n. 53).
222. Adapted from Case Management Society ofAustralia, What is Case Management? (CMSA,
undated) http://www.cmsa.org.au/definition.
html ; Sheldon Gelman and Arthur J. Frankel,
Case Management: An Introduction to Concepts
and Skills, (Chicago, Ill: Lyceum Books, 2004).
223. Hotham Mission Asylum Seeker Project,
Providing Casework (see n. 107). For a description of the role of a case manager in a migration
context, see Box 15 Case Studies.
224. Hotham Mission Asylum Seeker Project,
Providing Casework (see n. 107). For an example
of its use by an immigration authority, see
Department of Immigration and Multicultural
Affairs, Case Management in DIMA, (Canberra:
DIMA, n.d.).
225. Case study provided to researchers by an expert
involved in this case. A pseudonym has beenused.
226. Case study provided by one of the researchers
who was personally involved in the resolution ofthis case. A pseudonym has been used.
227. See also Sebastian Sunderhaus, Regularization
Programs for Undocumented Migrants: Working
paper 142, (Koln/New York: The Center for
Comparative Immigration Studies, 2006) http://
ccis.ucsd.edu/wp-content/uploads/WP_142.pdf

calculated at $38.30, excluding case management costs. Joint Standing Committee on
Migration, “Inquiry into Immigration Detention,
122 (see n. 74). We have reported the cost ofdetention as used for detention debts. Joint
Standing Committee on Migration, Inquiry
into Immigration Detention in Australia: A New
Beginning. First report: Criteria for Releasefrom Detention, (Canberra: Commonwealth ofAustralia, 2008) 112.
231. Department of Immigration and Citizenship
Annual Report 2009-2010, 168 (See n. 73).
232. The International Organization for Migration has
found that “additional ‘investment’ by returningstates in reintegration support in countries oforigin is likely to render the return most sustainable with flow-on benefits such as encouraging
other irregular migrants to return home voluntarily and incentivizing returnees to stay home.”
International Organization for Migration: Return
Migration: Policies and Practices in Europe,(Geneva: IOM, 2004) 7.
233. Information in this break out box is from interviews and further references as noted.
234. Sullivan et al., “Testing Community Supervision,”
16 (see n. 52).
235. Field and Edwards Alternatives to Detention, 92(see n. 49).
236. Hotham Mission Asylum Seeker Project,
Providing Casework (see n. 107); c.f. The Centre
for Social Justice, Asylum Matters: Restoring
Trust in the UK Asylum System. (London: The
Centre for Social Justice, 2008) 4.
237. Information in this break out box is from interviews, site visits and further references as noted.

228. The Department of Immigration and Border
Protection will refer individuals to the SRSS
program by ‘bands’; individuals will then be
eligible for services based on the band they
are in. For an overview of the different bands
and services provided, see Australian Red
Cross, Addressing the Humanitarian Needsof Migrants in Transition: Status Resolution
Support Overview, (Australian Red Cross,undated) http://refugeehealthnetwork.org.
au/wp-content/uploads/Red-Cross-SRSSoverview1.pdf; Adult Multicultural Education
Services, Status Resolution Support Services(SRSS) – Overview, (AMES, 2014), http://refugeehealthnetwork.org.au/wp-content/uploads/
AMES-SRSS-Overview.pdf

238. Families who do not fall within this criteria areprovided with accommodation for a limited
period in an open return centre establishedin 2013 in the town of Holsbeek. The facility is
jointly managed by FEDASIL and the Immigration Office and during their stay, families arecounselled on the possibility of either obtaining
a residence permit or voluntary return to theircountry of origin. See European Migration
Network, Focused study of Belgium (see n. 77).

229. Department of Immigration and Citizenship,
Community Care Pilot (see n. 52).

240. UNHCR, Alternatives in Belgium 14 (see n. 238).

230. These costs have been calculated as follows:
The Community Care Pilot cost $5.6 million for
2008/9 with a maximum of 400 people in thepilot during this period: the average daily cost is239. UNHCR, Alternatives to the Detention of AsylumSeekers in Belgium. (Brussels: UNHCR, 2011) 14,
http://www.unhcr.be/fileadmin/user_upload/
pdf_documents/UNHCR-alternatives_to_Detention-Roadmap-Belgium-ENG-screen.pdf

241. Pieter Stockmans, “Return Homes as an Alternative to Detention,” Presentation at the Expert
Meeting on Detention in the Framework of theEastern Partnership Panel on Migration andAsylum, Chisinau, Moldova. 26-27 March 2014.

97

THERE ARE ALTERNATIVES (REVISED EDITION)

242. UNHCR, Alternatives in Belgium 14 (see n. 238).
243. US Citizenship and Immigration Services
Questions and Answers: Victims of Human Trafficking, T Nonimmigrant Status. (Washington,
D.C: US Citizenship and Immigration Services,
2010).
244. Sarah Craggs and Ruzayda Martens, Rights,
Residence and Rehabilitation: A Comparative
Study Assessing Residence Options for Trafficked Persons, (Geneva: IOM, 2010) 67.
245. This information was provided to the International Detention Coalition by a regional expert,
with further references as noted.
246. UNHCR, High Commissioner’s Dialogue on
Protection Challenges: Breakout Session 1:
Gaps in the International Protection Frameworkand in Its Implementation 8-9 December,(Geneva: UNCHR, 2010) http://www.unhcr.
org/4d09e47a9.pdf
247. Foreign Ministry of Argentina, Informe elaborado
en cumplimiento de la A/RES/67/172: La
perspectiva de derechos humanos en el tratamiento de la cuestión migratoria en la República
Argentina, (FMA, 2013).
248. P.A.R. “Migration through Morocco: No Way
Forward or Back,” The Economist, February 11th,
2014, http://www.economist.com/blogs/pomegranate/2014/02/migration-through-morocco249. IRIN, “Morocco: The Forgotten Frontline of the
Migrant Crisis,” July 29th, 2015, http://allafrica.
com/stories/201507301776.html
250. Centre for Equal Opportunities and Opposition to Racism, Annual Report on Migration,(Brussels: CEOOR, 2013) 118.
251. Isabelle Johansson, Particularly Distressing
Circumstances: Regularization and Employment
in Sweden, REGAINE Assessment Report (International Centre for Migration Policy Development, 2014) 17-18.
252. Article 2 of Act II of 2007 states that “exile”
means any person who is provided temporary
shelter and may not be returned to the countryof his/her nationality, or in the case of a statelessperson, to the country of domicile, for fear of
being subjected to capital punishment, tortureor any other form of cruel, inhuman or degrading
treatment, and there is no safe third country
offering refuge, and who is not entitled toasylum or treatment as a stateless person, nor to
any subsidiary form of protection or temporary
protection”.
253. European Migration Network, “Ad-Hoc Queryon Implementing Tolerated Stay,” (EMN, 2014),
http://ec.europa.eu/dgs/home-affairs/what-wedo/networks/european_migration_network/
reports/docs/ad-hoc-queries/illegal-immi-

98

gration/549_emn_ahq_on_implementing_tolerated_stay_03072014_en.pdf
254. Cragg and Martens, Rights, Residence and Rehabilitation, 132 (see n. 244).
255. United Nations Office on Drugs and Crime,
Toolkit to Combat Trafficking in Persons,(Geneva: UNODC, 2008) 326.
256. As discussed in Section 7, a robust casemanagement system and regular engagementwith caseworkers help ensure that individuals are better supported and managed in thecommunity to achieve case resolution.
257. Sections 57 and 127 of Brazil’s Law No. 6,815
of August 19, 1980, the Foreigner’s Statute(Estatuto do Estrangeiro).
258. Information in this break out box is from interviews and site visits, with further references as
noted. Further information available at http://
www.migrationsverket.se/info/skydd_en.html
259. Grant Mitchell, “Asylum Seekers in Sweden,”(August 2001) http://www.fabian.org.au/940.
asp
260. Of 19,905 third country nationals ordered
to leave, 12,988 returned voluntarily and 614
returned through an Assisted Voluntary Return
program. European Migration Network, “Country
Factsheet: Sweden 2012,” (EMN, 2012) 6, http://
ec.europa.eu/dgs/home-affairs/what-wedo/networks/european_migration_network/
reports/docs/country-factsheets/swedenemn-ountry-facthseet_en.pdf.
261. Grant Mitchell, Asylum Seekers in Sweden: An
Integrated Approach to Reception, Detention,
Determination, Integration and Return, (2001),
http://idcoalition.org/asylum-seekers-insweden/
262. Franck Düvell, “Transit Migration: A Blurred andPoliticised Concept,” Population, Space andPlace 18, no. 4 (2012): 415-427; Aspasia Papadopoulou-Kourkoula, Transit Migration: The
Missing Link between Emigration and Settlement(Basingstoke: Palgrave Macmillan, 2008).
263. There is now large-scale economic and politicalinvestment by the European Union in the abilityof its nearest neighbours to halt the travel ofmigrants, including in Eastern Europe, Turkey
and northern Africa. The United States has
also taken such measures to reduce migration
through Mexico and other Latin Americancountries, while Australia has invested in suchintervention in Indonesia. See Jason De León,“The Efficacy and Impact of the Alien Transfer
Exit Programme: Migrant Perspectives from
Nogales, Sonora, Mexico,” International Migration
51, no. 2 (2013): 10-23; Raül Hernández i Sagrera,“Exporting EU Integrated Border Management Beyond EU Borders: Modernization andTHERE ARE ALTERNATIVES (REVISED EDITION)

Institutional Transformation in Exchange forMore Mobility?” Cambridge Review of International Affairs 27, no. 1 (2014): 167-83; Kemal
Kirisci, “Reconciling Refugee Protection withEfforts to Combat Irregular Migration: The Caseof Turkey and the European Union,” In Global
Migration Perspectives, edited by Jeff Crisp andKhalid Koser, (Geneva: Global Commission on
International Migration, 2004); Amy Netheryand Stephanie J. Silverman, eds. Immigration Detention: The Migration of a Policy and Its
Human Impact, (Ashgate: Routledge, 2015); Amy
Nethery, Brynna Rafferty-Brown, and Savitri
Taylor, “Exporting Detention: Australia-Funded
Immigration Detention in Indonesia,” Journalof Refugee Studies (2012) doi: 10.1093/jrs/
fes027; Florian Trauner and Stephanie Deimel,“The Impact of EU Migration Policies on African
Countries: The Case of Mali,” International
Migration 51, n. 4(2013): 20-32.
264. Papadopoulou-Kourkoula, Transit Migration (seen. 262).
265. Antje Missbach, “Making a “Career” in PeopleSmuggling in Indonesia: Protracted Transit,
Restricted Mobility and the Lack of Legal Work
Rights,” Sojourn: Journal of Social Issues inSoutheast Asia 30, no. 2(2015): 423-454.
266. MHub Detained Youth (see n. 111).
267. Information provided to the IDC by a national
expert.
268. This was evident in Hungary, Hong Kong andSpain. Unfortunately, there is very little researchestablishing the effectiveness of community
management options in ‘transit’ countries. Some
research points to the ways ‘transit’ countries
are actually destination countries for many
people: de Haas, “Irregular Migration from West
Africa,” (see n. 109).
269. Joe Biden, “A plan for Central America,” The
New York Times, January 29th 2015, http://www.
nytimes.com/2015/01/30/opinion/joe-biden-aplan-for-central-america.html
270. Mana Rabiee, “Greece pledges to shut immigration detention centers,” Reuters U.S.,
February 14th 2015, http://www.reuters.com/
video/2015/02/14/greece-pledges-to-shutimmigrant-detenti?videoId=363197263
271. Karolina Tagaris, “Greece pledges to shut
immigration detention centers.” Reuters U.K.
February 14th 2015. http://uk.reuters.com/
article/2015/02/14/uk-greece-politics-immigrants-idUKKBN0LI0Q720150214
272. UNHCR, “UNHCR Welcomes the Envisaged
Changes in the Administrative Detention of Third
Country Nationals” Press release, February 19th,
2015 http://www.unhcr.gr/nea/artikel/24dcef5d
13ebd29a1559fc4d7339ad10/unhcr-welcomesthe-envisaged-changes.html

273. Banki and Katz, Resolving Immigration Status
Part 2, 102 (see n. 70); Field and Edwards, Alternatives to Detention, 47 (see n. 49).
274. Edwards, Back to Basics (see n 17).
275. See Article 46 of the Venezuelan Immigration
Law and Migration No. 37.944 of 24 May, 2004.
276. Banki and Katz, Resolving Immigration Status
Part 2, 14-16 (see n. 70); Field and Edwards,
Alternatives to Detention, 45 (see n. 49).
277. Field and Edwards, Alternatives to Detention, 35(see n. 49).
278. Field and Edwards, Alternatives to Detention, 30(see n. 49).
279. Field and Edwards, Alternatives to Detention, 35(see n. 49).
280. Pursuant to section 48(2) of Hungary’s of
Hungary’s Act II of 2007 on the Admission andRights of Residence of Third-Country Nationals
281. Field and Edwards, Alternatives to Detention, 35(see n. 49).
282. We have not come across any examples ofauthorities using new communication technologies such as email, SMS/text messages, Skypeor web-based log in for reporting purposes. Thismay be worth further exploration, as it has thepotential to increase contact with authorities
while limiting impositions on daily life.
283. “Persons released to [the Toronto Bail Project]
are initially required to report twice weekly
to the offices of TBP in downtown Toronto.
Reporting requirements are softened as trustdevelops between the two parties and there areno lapses in reporting.” Edwards, Back to Basics,
58 (see n 17).
284. Rutgers School of Law - Newark ImmigrantRights Clinic and American Friends Service
Committee, Freed But Not Free, 16 (see n. 53).
285. Information in this break out box is from De
Bruycker, “Alternatives in the EU,” 129 (see n. 75),
with further references as noted.
286. Information obtained during fieldwork.
287. Information in this break out box based on
Sullivan et al., “Testing Community Supervision”(see n. 52).
288. Unlike bond or bail programs, there were no
financial consequences for the guarantor uponnon-compliance in this program.
289. A detailed breakdown of cost outcomes is foundat Sullivan et al., “Testing Community Supervision,” 64-69 (see n. 52).

99

290. Field and Edwards, Alternatives to Detention, 45(see n. 49) also recommend further research inthis area.
291. It is important to be aware that some detainees
may be exploited if they become indebted to
unscrupulous guarantors.
292. Information in this break out box is from
Edwards, Back to Basics (see n 17) and otherreferences as noted.
293. Citizenship and Immigration Canada, ENF 20(see n. 188).
294. Community Legal Education Ontario, Being
Arrested and Detained for Immigration Reasons,(CLEO, 2008), http://www.cleo.on.ca/english/
pub/onpub/PDF/immigration/arrdetim.pdf
295. As discussed in Section 1.3.2. See also Costello
and Kaytaz, Building Empirical Evidence (seen. 49); London Detainee Support Group, No
Return, No Release, No Reason (see n. 27).
296. For a discussion on issues of sustainable return
see Ruerd Ruben, Marieke Van Houte, and Tine
Davids. “What Determines the Embeddedness ofForced-Return Migrants? Rethinking the Role ofPre- and Post-Return Assistance.” International
Migration Review 43, no. 4 (2009): 908-37.
297. APT, IDC and UNHCR, Monitoring Immigration
Detention (see n. 2).
298. Department Order No. 94/1998, Establishinga Procedure for Processing Applications for
the Grant of Refugee Status [Philippines], 4March 1998, http://www.unhcr.org/refworld/
docid/3ede2d914.html
299. Information in this break out box based on
the expert knowledge of staff of the International Detention Coalition, and from Department of Immigration and Citizenship, Fact Sheet
85: Removal Pending Bridging Visa, (Canberra:
DIAC, 2007).
300. Information provided to the IDC by a national
expert.
301. Electronic monitoring has been used in
migration matters primarily in the USA: Field and
Edwards, Alternatives to Detention, 36-38 (seen. 49).
302. Information in this break out box is from interviews and site visit. Further information available
at http://www.migrationsverket.se/info/skydd_
en.html303. Committee for the Prevention of Torture, Reportto the Swedish Government on the Visit to
Sweden Carried Out by the European Committee
for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) from
9 to 18 June 2009, http://www.cpt.coe.int/
documents/swe/2009-34-inf-eng.pdf