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Barely Surviving
June 19, 2013

VII. Conclusion and Recommendations

Asylum-seeking and refugee children in Indonesia are trapped in a prolonged waiting game with no certain outcome. Many have fled desperate situations, and hope to find refuge in Australia or elsewhere. Yet Indonesia detains them without judicial review, subjecting them to poor conditions and brutal treatment in detention facilities. Outside detention, asylum seekers and refugees cannot work legally and are prohibited from moving freely around the country.

By failing to ratify and implement the 1951 Refugee Convention, Indonesia leaves refugees and asylum seekers living at the margins of society with no chance to integrate. Many wait months or years for UNHCR to process their cases. Only a small number will ultimately be resettled to a third country. It is no surprise, therefore, that some asylum seekers decide that boarding a rickety boat to travel irregularly to Australia looks like a risk worth taking.

Unaccompanied migrant children fall into a legal void. With no government agency taking responsibility for their guardianship, they are left in detention or on the streets, without the legal or material assistance to which they are entitled. Without a viable future in Indonesia even once released from detention, and with a long wait for the possibility of resettlement, many unaccompanied migrant children take the rash decision to take dangerous boat journeys.

Children who migrate with their families also have no future in Indonesia. Often detained in terrible conditions as young children, they are exposed to violence and left without an education. Once released, they and their parents have no secure immigration status in Indonesia, and children have few prospects for gaining an education and no way of becoming a part of Indonesian society.

Instead of leaving people without options, compelling them to take dangerous boat journeys, Indonesia should create a legal environment that protects asylum seekers and refugees, including through ratification of the 1951 Refugee Convention and its 1967 Protocol. Indonesia should stop detaining children without review, impose an absolute ban on detention of unaccompanied children, and immediately reform its immigration detention system. Australia should support its neighbor in establishing these policies, and should lift punitive asylum policies in order to minimize the risks of smugglers’ boats.

Migrants and asylum seekers will continue to come to Indonesia, in numbers that are likely to continue to increase. Indonesia should establish an immigration screening system that, while including enforcement of immigration laws through proper and humane deportation of migrants who do not have claims to enter or remain, protects children’s rights, recognizes valid claims for asylum, and offers a viable future for those who can remain in the country.

To the Indonesian Government

  • Accede to the 1951 Refugee Convention and its 1967 Protocol and implement their provisions into Indonesian law, providing a fair and timely asylum process accessible to all migrants who want to make refugee claims.
    • Provide appropriate living conditions for those seeking asylum and those granted refugee status, including by allowing the right to work and the right to move freely throughout the country.
    • Provide all children in Indonesia, including migrant children and child asylum seekers, access to education.

Regarding Detention of Migrants and Asylum Seekers

  • End arbitrary detention of migrants and asylum seekers. Provide all migrants detained with access to mechanisms to challenge the legality of their detention.
  • Develop a clear, nationally applicable standard operating procedure for immigration detention that prevents the detention of vulnerable migrants and asylum seekers, establishes benchmarks for acceptable conditions of confinement, and enables those detained to access an effective complaints procedure about immigration staff conduct.
  • Strictly enforce the prohibition of abuse of migrants in detention facilities, and implement a thorough, nationwide review of violence, abuse, and corruption in detention facilities. Ensure that children are never subject to or witness to violence in detention facilities.
  •  Enable the National Commission on Human Rights (Komnas HAM), the Inspector General, or other independent monitoring body, to be responsible for oversight of a complaints procedure about immigration staff conduct.
  • Provide migrants with access to lawyers, including free legal assistance for unaccompanied migrant children.
  • Consider the detention of children in families as an absolute last resort, after exploring all alternatives to detention, such as registration and community monitoring for them and for their family members, while always prioritizing the child’s best interests and right to family unity.

Regarding Unaccompanied Migrant Children

  • Immediately prohibit the detention of unaccompanied migrant children and provide them with safe accommodations outside detention facilities.
  • Grant unaccompanied children lawful status for as long as they are in Indonesia, to ensure their enjoyment of rights and protection on an equal basis with Indonesian children and to protect them from repeated arrest and detention.
  • Resolve which division within the government should take responsibility for guardianship of unaccompanied migrant children.
  • Take immediate steps to ensure that there are sufficient places in shelters for unaccompanied migrant children, and that they have access to education, adequate nutrition, and contact with family members abroad.

To the agency deemed responsible for the guardianship of unaccompanied migrant children (for example, the Ministry of Social Affairs)

  • Develop comprehensive policies to meet the protection needs of unaccompanied migrant children in line with the Convention on the Rights of the Child and the UN Committee on the Rights of the Child’s standards articulated in its General Comment No. 6, including by:
    • Establishing a meaningful guardianship system through which each unaccompanied migrant child in the country is assigned, as soon as possible after arrival in the country, a guardian with the authority to be present in all decision-making processes, including immigration hearings, care arrangements, and efforts to make long-term plans for children, and who is knowledgeable about child care in order to ensure that the child’s legal, social, health, psychological, material, and educational needs are adequately covered.
    • Increasing the number of places available in care facilities (such as shelters and foster care settings) to the level required to ensure placement for all unaccompanied children in the country. Establish and enforce minimum standards for all care placements and provide specialized care for particularly vulnerable children, such as those who are victims of trafficking. Ensure care placements provide social and educational services, access to free legal aid, and protection from violence and ill-treatment. Design programs to reach out to unaccompanied children who live outside state-sponsored care to ensure their protection and educate them about risks of further travel. Set up a foster family system and provide adequate support to foster parents in the exercise of their functions.
    • In cooperation with the Directorate General of Immigration, setting up a registration and tracking system for unaccompanied children, to account for every child. Investigate incidents of unaccompanied children who abscond from care centers and design strategies to counter such occurrences.
    • Ensuring that unaccompanied migrant children have access to free legal assistance in asylum proceedings and other legal and administrative proceedings.

To the Directorate General of Immigration

Regarding Detention Generally

  • Consider the detention of children in families as an absolute last resort, after exploring all alternatives to detention for them and for their family members, and while always prioritizing the child’s best interests and right to family unity.
  • Develop a clear, nationally applicable standard operating procedure for immigration detention that prevents the detention of vulnerable migrants and asylum seekers, establishes benchmarks for acceptable conditions of confinement, prohibits bribery or corruption among staff members, and enables those detained to access an effective complaints procedure about immigration staff conduct.
  • Immediately prohibit the detention of unaccompanied migrant children and provide them with safe accommodations outside detention facilities.

Regarding Conditions of Confinement

  • Immediately bring detention conditions in line with international minimum standards, including standards relating to overcrowding, water and sanitation, nutrition, and access to recreation, among others.
  • Immediately cease detaining children with unrelated adults.
  • Provide appropriate, age-specific education to all children in detention facilities of compulsory primary education age, and allow children of secondary education age to continue their education if they desire.
  • Ensure that detainees have the means to communicate with family members, UNHCR, and legal representatives.
  • Ensure free and full access for independent agencies such as national and international governmental organizations and non-governmental organizations, and permit them to monitor detention conditions.

Regarding Abuse and Corruption in Detention Facilities

  • Issue clear standards and provide training to ensure that violence, ill-treatment, bribery, and corruption do not occur in the detention facilities under your jurisdiction.
  • Institute accountability mechanisms, including a confidential individual complaints procedure, to prevent abuses and redress corruption in immigration detention facilities. Ensure free and full access for independent agencies such as international governmental organizations and non-governmental organizations, and permit them to monitor detention conditions.
  • Promptly investigate any allegation of ill-treatment of migrants and asylum seekers, including children, by officials and hold perpetrators fully accountable under the law. Take targeted and comprehensive measures to prevent ill-treatment of migrants, including unaccompanied children, in the custody of state agents. Put in place victim protection mechanisms during investigations and make public statements condemning such acts.

Regarding Migrants and Asylum Seekers outside Detention

  • In cooperation with the Ministry of Social Affairs (or whichever agency takes guardianship for unaccompanied children), set up a registration and tracking system for unaccompanied children, to account for every child. Investigate incidents of unaccompanied children who abscond from care centers and design strategies to counter such occurrences.
  • Ensure that all unaccompanied migrant children in Indonesia are given an opportunity to seek asylum, and are provided representation by a guardian and a lawyer for all unaccompanied children who seek asylum. Prioritize the determination of asylum applications by unaccompanied children while ensuring a fair and full assessment of their claim. 
  • Ensure that all migrant children in Indonesia—including unaccompanied children and children with their families—have timely access to quality education, both in the exceptional cases where they are detained, and when they are living outside detention.

To the Indonesian National Police

  • Refrain from arresting refugees, asylum seekers, and people with tokens from UNHCR.
  • Use only the minimum force necessary in apprehending migrants and investigate and punish instances of excessive force.
  • Conduct comprehensive investigations into abuse claims made by migrants and asylum seekers in immigration detention, including by putting in place victim protection mechanisms during investigations.

To the Australian Government

  • Lead by example by lifting punitive asylum policies (including offshore processing and harsh visa regimes) and allowing those seeking asylum to reach Australian territory, thus minimizing the risks of the smugglers’ boats.
  • Strongly promote and facilitate the development of refugee law and refugee protection in Indonesia, including by encouraging the Indonesian government to ratify the 1951 Refugee Convention and its 1967 Protocol, and by working with the Indonesian government to develop its capacity to assess asylum claims and protect refugees.
  • Support Indonesia in developing appropriate laws and policies to respond to the protection needs of unaccompanied migrant children, including those enumerated by the UN Committee on the Rights of the Child in its General Comment No. 6.
  • In regional intergovernmental dialogues that address migration issues, push for a more humane approach to migration that prioritizes children’s rights about immigration enforcement.
  • Make funding of migration activities in Indonesia conditional on respect for human rights and international standards on migrant detention conditions, including provisions for monitoring and review.
  • Pressure Indonesia for accountability on instances of abuse in immigration detention.
  • Accelerate resettlement procedures and continue to increase the number of refugees resettled from Indonesia to Australia.

To International Donor Governments

  • Strongly promote and facilitate the development of refugee law and refugee protection in Indonesia, including by encouraging the Indonesian government to accede to the 1951 Refugee Convention and its 1967 Protocol, and by working with the Indonesian government to develop its capacity to assess asylum claims and protect refugees.
  • Call on the Indonesian government to cease detaining asylum seekers and refugees with UNHCR documents, to consider the detention of children in families as an absolute last resort, and to prohibit the detention of unaccompanied migrant children.
  • Support Indonesia in developing appropriate laws and policies to respond to the protection needs of unaccompanied migrant children, including those enumerated by the UN Committee on the Rights of the Child in its General Comment No. 6.
  • Provide financial and technical assistance to the Indonesian government in implementing new policies on migrants, asylum seekers, and unaccompanied migrant children.
  • Provide increased financial assistance to UNHCR and non-governmental organizations conducting refugee status determinations, so that these procedures can move more speedily, and so that people in detention, unaccompanied minors, and other vulnerable groups can be prioritized.
  • Recognize the importance of education for migrant children, and support their education both outside detention and when they are detained.

To the Association of Southeast Asian Nations

  • Uphold refugee rights in the establishment of all policies and practices on regional immigration enforcement.
  • Prioritize children’s rights in immigration enforcement, including by providing specialized protection for unaccompanied migrant children, and by urging states to cease the detention of migrant children.

To UNHCR

  • While recognizing the parameters of the resource constraints faced by UNHCR in Indonesia, urgently speed up the very slow processing of refugee claims, if necessary by increasing the number of UNHCR eligibility officers, interpreters, and support staff.
    • Prioritize to an even greater degree particularly vulnerable groups, including unaccompanied migrant children, so that the processing time on these claims is significantly reduced.
    • Given the issues faced by those subject to prolonged detention, prioritize to an even greater degree claims made by those detained.
  • End the system of giving “tokens” or appointment slips to asylum seekers who approach UNHCR, which leaves people without legal protection for extended periods. Issue asylum seeker certificates as soon as that person is in touch with the office, to minimize the risk of arrest and other maltreatment.
  • Promote fair practice standards in UNHCR’s refugee status determination process by permitting asylum seekers legal representation and providing unaccompanied migrant children with free legal assistance.
  • Expand advocacy efforts with the government of Indonesia to ensure that unaccompanied migrant children have adequate care, including shelter and access to basic necessities.

To the International Organization for Migration

  • In the course of providing nutrition assistance to people under IOM’s care in detention, ensure that adequate food with appropriate nutritional standards is provided to all children in its care in immigration detention facilities.
  • Monitor conditions of confinement for all asylum seekers and children in its care in immigration detention facilities, and report issues to the Directorate General of Immigration.
  • Recognizing resource constraints, and while the government of Indonesia has failed to fulfill its responsibility to provide access to education, expand IOM’s educational programming for children both inside and outside detention.
  • Continue to work with the government of Indonesia to ensure that unaccompanied migrant children have adequate care, including shelter and access to basic necessities.
  • Expand translation programs to ensure that asylum seekers have access to adequate translation in the course of their proceedings with UNHCR.

To UNICEF

  • Consider migrant children, including asylum-seeking children and unaccompanied migrant children, as a core element of UNICEF’s programming in Indonesia. Prioritize advocacy that urges the government of Indonesia to end the detention of migrant children.
  • Support Indonesia in developing appropriate laws and policies to respond to the protection needs of unaccompanied migrant children, including those enumerated by the UN Committee on the Rights of the Child in its General Comment No. 6.
  • Run programming and support programming run by others that responds to the protection needs of unaccompanied migrant children, including those enumerated by the UN Committee on the Rights of the Child in its General Comment No. 6.
  • Work to ensure that all migrant children in Indonesia, whether detained or not, whether unaccompanied or with their families, have access to education.