International Law and the Detention of Refugees (Asylum Seekers)
The following is an excerpt from the section I wrote for the One America/Seattle University 2008 Report : Voices from Detention: A Report on Human Rights Violations at the Northwest Detention Center in Tacoma, WA.
Nations have recognized that there are certain communities and groups of people who are the most vulnerable and require further protections. Refugees and asylum-seekers have been identified as one of these most vulnerable communities. Additional treaties and rights apply to both asylum-seekers and refugees. The primary source of international law regarding the treatment of refugees is the Convention Relating to the Status of Refugees (hereinafter “the Convention” drafted shortly after and as a result of WWII, as well as the Protocol Relating to the Status of Refugees.
A refugee is any person who has “a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return it.”
The Protocol (to which the U.S. is a party) that expanded the temporal geographic protections of the original Convention. The Convention codifies previous international instruments relating to refugees and provides the most comprehensive codification of the rights of refugees under international law. The United Nations High Commissioner for Refugees (UNHCR) Detention Guidelines provide further guidance to the convention articles regarding the detention of refugees. Although the guidelines are not binding, the U.S. Supreme Court has stated that a similar document, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, provides significant guidance when interpreting the Convention. The same should be true of the guidelines.
According to the United Nations High Commissioner on Refugees (UNHCR), the detention of refugees and those seeking asylum is “inherently undesirable.” Pursuant to the Convention, recognized refugees and asylum seekers whose cases are pending should not be detained except for a brief period of time to confirm their identity. In addition, in order to prevent psychological harm to vulnerable refugees, unaccompanied elderly persons, torture or trauma victims and persons with a mental or physical disability should only be detained “on the certification of a qualified medical practitioner that detention will not adversely affect their health and well being. In addition there must be regular follow up and support by a relevant skilled professional. They must also have access to services, hospitalization, and medication counseling etc. should it become necessary.”
The Convention places obligations on all States in relation to refugees, whether or not they have been formally recognized as refugees. Article 26 requires that refugees who are lawfully in the territory have the right to move freely in that territory. The term “lawfully” under Article 26 is satisfied by the fact that United States law authorizes refugees to remain in the U.S. while their status is being verified.
Article 31 states that refugees who have entered the country illegally or without authorization should not be penalized, provided that they present themselves within a reasonable amount of time and show good cause for their illegal entry. Penalization would include unnecessary detention. Article 31(2) prohibits restrictions on refugeesʼ movements unless such restrictions are necessary, typically long enough only to ascertain his or her identity. Article 31 is especially relevant to the detention of immigrants because refugees who enter the United States often do so unlawfully. Refugees often must flee at a momentʼs notice, and there is little time to secure a valid visa. In addition, fear of persecution by the government they are fleeing may require the use of false identification.
It is important to note that asylum seekers arriving in the U.S. without proper documents are subject to ʻexpedited removalʼ in which undocumented immigrants, including asylum-seekers, arriving at ports of entry are subject to immediate removal without a judicial hearing. If the immigrant expresses a desire to apply for asylum or a fear of persecution in his or her home country, he or she will be afforded an initial “credible fear” hearing by an immigration officer. If the officer finds he or she has no credible fear, he or she will be removed without the ability to appeal or have his or her case heard by an immigration judge. If he or she is found to have a “credible fear,” he or she will be subjected to mandatory detention until a decision is made on his or her case by an immigration judge, or an appellate body, a process that could take years.
The United Statesʼ practice of detaining refugees pursuant to expedited removal procedures is a violation of Article 26 and Article 31 of the Convention. The U.S. is violating Article 26 by restricting the movement of refugees in general and Article 31(2) by detaining refugees for longer than for identification purposes. Unless the refugee poses a threat, refugees should not be detained even while their formal recognition of their status is pending. Despite Article 31(2) and the Department of Homeland Security having the discretion to parole refugees, the U.S. has recently made it more difficult to parole refugees currently in detention. On November 6th 2007, ICE issued new guidelines on the paroling of refugees in detention. These guidelines further limit the release of refugees from detention and are inconsistent with international refugee and human rights law.
Refugees should not be held in detention for any amount of time longer than necessary to procure their correct identification, and once they are in detention, they are entitled to certain protections under international law. For example, Article 16 of the Convention requires that refugees have free access to courts of law with regard to legal assistance. Asylum seekers should also have the right and the means to communicate with their representatives in private. It is important to ensure that detention not constitute an obstacle to an asylum seekers’ pursuance of their asylum application.
To read the entire report go to http://www.hatefreezone.org/downloads/Detention%20Center%20Study.pdf
To read the Convention and Protocol Relating to the Status of Refugees go to http://www.unhcr.org/protect/PROTECTION/3b66c2aa10.pdf