[For the list of adressees, see end of the letter]
Re: Limiting Immigration Detention
On the occasion of the United Nations High Level Dialogue on International Migration and Development, to be held on October 3 and 4, 2013, in New York, we write to urge participating states to take measures to strictly limit the use of immigration detention worldwide.
We applaud the integration of human rights into migration policy as reflected throughout the Dialogue’s program, and in particular in Roundtable 2 on the human rights of all migrants. Preventing abusive immigration detention—and providing policies that facilitate safe, orderly migration channels—are key aspects of protecting and fulfilling the human rights of migrants. As the UN Secretary-General observed in his report on international migration and development, issued in advance of the Dialogue, “states should seek alternatives to administrative detention of irregular migrants, especially children.”
Human Rights Watch has conducted research on immigration detention on four continents over more than a decade, and our research finds that immigration detention violates multiple aspects of migrants’ human rights. This letter provides a brief summary of the key findings of our more recent research. Immigration detention, which is used against children, asylum seekers, and other particularly vulnerable groups, is often arbitrary and indefinite. Immigration facilities frequently fall outside of typical detention oversight, and are not subject to adequate monitoring or accountability mechanisms. Conditions are often squalid, particularly during crowded peak migration seasons, and in many cases, detainees are subject to abuse by guards. Detention, particularly when indefinite, takes a heavy toll on the mental health of migrants, especially children.
Human Rights Watch urges the UN General Assembly, states involved in the Dialogue, and other interested agencies, to develop migration policies and enforcement practices that give priority to human rights and that provide reasonable channels for regular migration. States should use immigration detention only as a last resort and for the shortest possible time; ensure that conditions meet basic standards; refrain from detaining children, asylum seekers, persons with mental disabilities, and other vulnerable migrants; and prioritize the use of alternatives to detention.
Human Rights Watch recommends that governments:
· Use immigration detention only in accordance with a procedure prescribed by law. Give priority to alternatives to detention, including supervised release or the use of open reception centers as a basic practice. Provide migrants access to a remedy whereby they can effectively challenge their detention.
· Limit or prohibit entirely the detention of vulnerable migrants, including refugees and asylum seekers, families with children, unaccompanied children, victims of sexual violence and other forms of gender-based violence, and people with disabilities.
· Ensure that conditions of detention centers are in line with international standards, respect human dignity, and are applicable across all types of facilities that detain migrants. This includes: separating unrelated men and women, and unrelated adults and children; providing basic necessities and access to education; and ensuring that facilities are clean, well ventilated, and not overcrowded. Permit unfettered monitoring of facilities’ compliance with international detention standards by multiple independent, nongovernmental organizations, and UN agencies and rapporteurs.
· Ensure humane treatment in detention facilities. Establish accountability by appropriately disciplining or prosecuting police and other security officials implicated in torture and other cruel, inhuman or degrading treatment. Adopt effective measures to end corruption in detention facilities and appropriately punish those responsible.
Arbitrary and Abusive Detention
Immigration detention frequently violates international law because it is arbitrary, denying those detained judicial review of their cases and other basic rights. For instance, Malta, a country at the external frontier of the European Union, has a policy of automatic detention for virtually all migrants who arrive irregularly (that is, not through an official port of entry), which amounts to arbitrary detention. While some vulnerable migrants are quickly released, asylum seekers can be held for up to a year, and those denied asylum for up to 18 months.
Immigration detainees worldwide include families with very young children, children traveling alone, and refugees and asylum seekers, all of whom are protected by limits to detention under international law. For example, Greece, one of the major gateways for migrants entering the EU, detains many vulnerable migrants, including asylum seekers and children. Unaccompanied children can spend months in Greek detention centers—often in the same cell with adults—in conditions that the European Committee for the Prevention of Torture termed “unacceptable.” Indonesian authorities frequently detain undocumented migrants, including unaccompanied children and children in families, for months or years in squalid conditions without access to education or in some cases outdoor recreation.  Thailand detains recognized refugees, including refugees who are awaiting processing of resettlement offers from third countries.
In many countries, immigration detention conditions are appalling. Human Rights Watch met a three-year-old boy in the Suan Phlu immigration detention center in Bangkok, Thailand, who had spent almost his entire life in detention. His father, a Somali refugee, described the conditions of detention: “The conditions are not hygienic for the boy. The room is hot and dirty which has caused the boy to be sick frequently. ... He bathes in the same water as the rest of us in the room and sometimes there is no water at all.” Peak migration seasons can be particularly problematic, when overcrowding can exacerbate the poor conditions. Monitoring agencies frequently fail to give immigration facilities adequate scrutiny.
Migrants and asylum seekers can face brutality in detention. Our 2013 report, “You Are All Terrorists,” found that Kenyan police in Nairobi tortured, raped, and otherwise abused and arbitrarily detained at least 1,000 refugees between mid-November 2012 and late January 2013. Human Rights Watch also documented cases of brutality in several Indonesian immigration facilities in 2010, 2011, and 2012, in which guards beat adult migrants and unaccompanied children, and forced children to watch as they beat adults. Arif B., an unaccompanied Afghan boy detained in Indonesia, was 15 when guards beat him for trying to escape: “I was beaten up very roughly…. There were eight or nine people beating me, most were guards and there was one person from the outside. They hurt my shoulder, my ear, my back.”
Human Rights Watch’s December 2010 report on the treatment of migrants and asylum seekers in Ukraine, Buffeted in the Borderland, documented torture and other ill-treatment of immigration detainees, including by punching and kicking, and in some cases using electric shock. Our August 2010 report, Detained and Dismissed, documented numerous incidents and allegations of sexual assault, abuse, and harassment of immigrant detainees in the United States.
Immigration detention is frequently indefinite, which takes its toll on the mental health of many detainees. This problem is especially severe for childrenand persons with mental disabilities. Our 2010 report Deportation by Default documented the ways in which persons with mental disabilities are likely to face prolonged detention in the United States, particularly since they have no right to a court-appointed attorney to help them navigate complex immigration proceedings. A psychologist who volunteers at an immigration detention center in Indonesia told Human Rights Watch that his child clients experienced psychological deterioration connected to the prolonged, ill-defined wait: “They lose hope, they lose dreams. There’s no timeframe on when they can have a normal life and go outside as humans. It leads to hopelessness and depression.”
In the US, prolonged or indefinite detention can also impede the ability of asylum seekers and others from pursuing claims to relief from deportation. In addition to causing psychological harm, the circumstances of detention, including access restrictions and geographic location, can make communication with family and others who can provide important evidence extremely challenging, as well as limit contact with counsel. Our 2009 report, Locked Up Far Away, showed how immigrants in the US are first arrested in locations where they have lived for decades and where their family members, employers, and attorneys also live. Days or months later, with no notice, many of these immigrants are loaded onto planes for transport to detention centers so remote that immigrants face extraordinary difficulties communicating with their attorneys and their family relationships are severely strained. Between 1999 and 2008, 1.4 million of these transfers occurred in the United States.
In many cases, immigration detention is not necessary; many of those detained for immigration reasons are held without due consideration of whether they are actually dangerous or at risk of absconding. Governments should actively explore alternatives to detention, particularly for vulnerable populations, including the use of open accommodation centers or reporting requirements that make it unlikely that the migrant will abscond.
In light of the significant human rights problems inherent in immigration detention, we urge the General Assembly, states involved in the Dialogue, and other interested agencies to use immigration detention only as a last resort, and always in the context of reasonable channels for regular migration. Governments should refrain from the detention of children and other vulnerable groups.
Thank you for your consideration of these important matters. Please be in contact with us if you would like further information.
Alice Farmer Bill Frelick Alison Parker
Researcher Director Director
Children’s Rights Division Refugee Program US Program
H.E. Hon. Julie Bishop MP, Minister of Foreign Affairs, Australia
H.E. Mr. Michael Spindelegger, Minister of Foreign Affairs, Austria
H.E. Dr. Dipu Moni MP, Minister of Foreign Affairs, Bangladesh
H.E. Mr. Didier Reynders, Minister of Foreign Affairs, Belgium
H.E. Mr. John Baird, Minister of Foreign Affairs, Canada
H.E. Ms María Ángela Holguín Cuéllar, Minister of Foreign Affairs, Colombia
H.E. Mr. Ricardo Patiño, Minister of Foreign Affairs, Ecuador
H.E. Mr. Hugo Salvador, Minister of Foreign Affairs, El Salvador
H.E. Mr. Laurent Fabius, Minister of Foreign Affairs, France
H.E. Ms Hanna Tetteh, Minister of Foreign Affairs, Ghana
H.E. Mr. Guido Westerwelle, Minister of Foreign Affairs, Germany
H.E. Mr. Luis Fernando Carrera Castro, Minister of Foreign Affairs, Guatemala
H.E. Mr. Salman Khurshid, Minister of External Affairs, India
H.E. Mr. Eamon Gilmore T.D., Minister for Foreign Affairs and Trade, Ireland
H.E. Ms Emma Bonino, Minister of Foreign Affairs, Italy
H.E. Mr Fumio Kishida, Minister of Foreign Affairs, Japan
Dr. The Hon. Arvin Boolell, Minister of Foreign Affairs, Mauritius
H.E. Jose Antonio Meade Kuribrena, Secretary of Foreign Affairs, Mexico
H.E. Mr. Saad-Eddine El Othmani, Minister of Foreign Affairs, Morocco
H.E. Mr. Frans Timmermans, Minister of Foreign Affairs, Netherlands
H.E. Ms Viola Onwuliri, Minister of Foreign Affairs, Nigeria
H.E. Mr. Jalil Abbas Jilani, Secretary of Foreign Affairs, Pakistan
H.E. Mr. Albert del Rosario, Secretary of Foreign Affairs, Philippines
H.E. Ms Maite Nkoana-Mashabane, Minister of International Relations and Cooperation, South Africa
H.E. Mr. Carl Bildt, Minister for Foreign Affairs, Sweden
H.E. Didier Burkhalter, Chef du Département fédéral des affaires étrangères, Switzerland
H.E. Mr. Ahmet Davutoğlu, Minister of Foreign Affairs, Turkey
H.E. Mr. Luis Almagro, Minister of Foreign Affairs, Uruguay
H.E. Mr. John F. Kerry, Secretary of State, United States of America
H.E. Ms Catherine Ashton, High Representative for Foreign Affairs, European Union
United Nations, “Report of the Secretary General on International Migration and Development,” U.N. Doc. A/68/190, July 25, 2013.
Human Rights Watch, Barely Surviving: Detention, Abuse and Neglect of Migrant Children in Indonesia, June 2013,https://www.hrw.org/sites/default/files/reports/indonesia0613webwcover.pdf; Human Rights Watch, Unwelcome Guests: Greek Police Abuses of Migrants in Athens, June 2013, https://www.hrw.org/reports/2013/06/12/unwelcome-guests-0; Human Rights Watch, You Are All Terrorists: Kenyan Police Abuse of Refugees in Nairobi, May 2013, https://www.hrw.org/reports/2013/05/29/you-are-all-terrorists; Human Rights Watch, All You Can Do is Pray: Crimes against Humanity and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State, April 2013, https://www.hrw.org/reports/2013/04/22/all-you-can-do-pray-0; Human Rights Watch, Race to the Bottom: Exploitation of Migrant Workers Ahead of Russia’s 2014 Winter Olympic Games in Sochi, February 2013, https://www.hrw.org/reports/2013/02/06/race-bottom-0; Human Rights Watch, Turned Away: Summary Returns of Unaccompanied Migrant Children and Adult Asylum Seekers from Italy to Greece, January 2013, https://www.hrw.org/reports/2013/01/21/turned-away; Human Rights Watch,Criminal Reprisals: Kenyan Police and Military Abuses against Ethnic Somalis, May 2012, https://www.hrw.org/reports/2012/05/04/criminal-reprisals; Human Rights Watch, If You Come Back We Will Kill You: Sexual Violence and other Abuses against Congolese Migrants during Expulsions from Angola, May 2012, https://www.hrw.org/reports/2012/05/20/if-you-come-back-we-will-kill-you; Human Rights Watch, Hate on the Streets: Xenophobic Violence in Greece, July 2012, https://www.hrw.org/reports/2012/07/10/hate-streets-0; Human Rights Watch, Boat Ride to Detention: Adults and Child Migrants in Malta, July 2012, https://www.hrw.org/reports/2012/07/18/boat-ride-detention-0; Human Rights Watch, Ad Hoc and Inadequate, September 2012, https://www.hrw.org/reports/2012/09/12/ad-hoc-and-inadequate; Human Rights Watch, The Law Was Against Me: Migrant Women’s Access to Protection for Family Violence in Belgium, November 2012, https://www.hrw.org/reports/2012/11/08/law-was-against-me-0; Human Rights Watch, A Costly Move: Far and Frequent Transfers Impede Hearings for Immigrant Detainees in the US, June 14, 2011, https://www.hrw.org/reports/2011/06/14/costly-move-0; Human Rights Watch, They Deceived Us at Every Step: Abuse of Cambodian Domestic Workers Migrating to Malaysia, November 2011, https://www.hrw.org/reports/2011/10/31/they-deceived-us-every-step; Human Rights Watch, The EU’s Dirty Hands, September 2011, https://www.hrw.org/reports/2011/09/21/eu-s-dirty-hands-0; Human Rights Watch, Detained and at Risk: Sexual Abuse and Harassment in United States Immigration Detention, August 2010, https://www.hrw.org/reports/2010/08/25/detained-and-risk; Human Rights Watch, Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, July 2010, https://www.hrw.org/reports/2010/07/26/deportation-default-0.
Human Rights Watch, Boat Ride to Detention: Adult and Child Migrants in Malta, July 2012, www.hrw.org/reports/2012/07/18/boat-ride-detention-0.
Human Rights Watch, Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece, December 2008, www.hrw.org/reports/2008/12/22/left-survive. The issue was recently documented by the UN Special Rapporteur on the human rights of migrants. UN Human Rights Council, Report of the Special Rapporteur on the human rights of migrants, Francois Crepeau, Mission to Greece, April 2013, A/HRC/23/46/Add.4, http://reliefweb.int/sites/reliefweb.int/files/resources/G1313221.pdf (accessed September 24, 2013), para 5.
European Committee for the Prevention of Torture and Inhuman or Degrading Punishment (CPT), Public Statement Concerning Greece, March 15, 2011, http://www.cpt.coe.int/documents/grc/2011-10-inf-eng.htm.
Human Rights Watch, Barely Surviving: Detention, Abuse, and Neglect of Migrant Children in Indonesia, June 2013, https://www.hrw.org/reports/2013/06/23/barely-surviving.
Human Rights Watch, Buffeted in the Borderland: The Treatment of Asylum Seekers and Migrants in Ukraine, December 2010, https://www.hrw.org/reports/2010/12/16/buffeted-borderland-0.
Human Rights Watch, Detained and Dismissed: Women’s Struggles to Obtain Health Care in United States Immigration Detention, March 2009, https://www.hrw.org/reports/2009/03/16/detained-and-dismissed.
Dr. Allan S. Keller et al., “Mental health of detained asylum seekers,” The Lancet, vol. 362, issue 9397 (November 22, 2003), pp. 1721-1723.
International Detention Coalition, Captured Childhood: Introducing a New Model to Ensure the Rights and Liberty of Refugee, Asylum Seeker and Irregular Migrant Children Affected by Immigration Detention (Melbourne, 2012), pp. 48-49.
Human Rights Watch, Deportation by Default, July 2010, https://www.hrw.org/reports/2010/07/26/deportation-default.
Human Rights Watch interview with C.A., psychologist, September 5, 2012.
Human Rights Watch, Costly and Unfair: Flaws in US Immigration Detention Policy, May 2010, https://www.hrw.org/reports/2010/05/06/costly-and-unfair-0.
Human Rights Watch, Locked Up Far Away, December 2009, https://www.hrw.org/reports/2009/12/02/locked-far-away-0.