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WHAT IS THE LAW?

MANDATORY DETENTION UNDER INTERNATIONAL LAW

Article 9(1) of the International Covenant on Civil and Political Rights (‘ICCPR’) recognises freedom from arbitrary and unlawful detention. It reads:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Detention must be “lawful” under both domestic and international law. Furthermore, it must not be arbitrary, or, in other words, it must not be unreasonable and disproportionate. The UN Human Rights Committee has released General Comment 35, to explain the meaning of Article 9 (see paragraph 18 on immigration detention).

The UN Human Rights Committee has said that the detention of asylum seekers for specific purposes, such as health checks, identity checks, security checks, is permissible. Furthermore, the detention of an asylum-seeker in order to prevent that person disappearing into the community, in order to ensure that the person is available for deportation is permissible (see Jalloh v Netherlands). However, there cannot be an automatic presumption that all people will seek to abscond: it must be reasonable to believe that that particular asylum seeker will seek to do so.

The mandatory detention of all asylum seekers, or (as in Australia) of all who arrive by boat without a visa, without the individual consideration of the whether it is necessary to detain a particular individual, is a breach of Article 9(1) (see, for example, the HRC decisions of A v Australia and C v Australia).

Indefinite detention also breaches Article 9(1) – see M.M.M. v Australia and F.K.A.G v Australia, and this the case note). These cases involved the ongoing detention of refugees who had been deemed to be security risks by Australia’s secret intelligence agency, ASIO. There was no procedure for bringing that detention to an end, so it was effectively indefinite.

Children seeking asylum (AHRC Snapshot Report, 2013) (and indeed all children) are also entitled to additional protections under the Convention on the Rights of the Child (‘CRC’). Article 37(b) states that:

… The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time

Conditions of Detention

Conditions of detention are a separate issue to the instances in which detention itself is or is not allowed. If the conditions of detention are sufficiently severe, they may constitute a breach of Article 7 and Article 10 of the ICCPR. Article 7 reads:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 10(1) reads:

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

For example, the psychological impacts of long-term or indefinite immigration detention have been deemed to be cruel, inhuman and degrading treatment in C  v Australia, M. M. M. v Australia, and F. K. A. G v Australia.

Legal Procedures

A core aspect of the freedom from arbitrary detention is the right to bring court proceedings in order to challenge the lawfulness of one’s detention. Article 9(4) of the ICCPR reads:

Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

In A v Australia, the Human Rights Committee interpreted Article 9(4) very broadly. It found that a court must be able to order a person’s release if the person’s detention is “unlawful” under a country’s domestic law or under the ICCPR itself. Australia was found in breach, as its courts were only able to review the detention of Mr A under Australian law, rather than under the ICCPR as well. Under Australian law, Mr A’s detention was automatically lawful, whereas it was not lawful under the ICCPR. 

In General Comment 35, the Human Rights Committee explains more about Article 9(4) in Part V of the Comment.

Offshore Detention

Some States detain asylum seekers in other countries under agreements with those countries. Australia’s arrangements for the detention in Nauru and PNG of asylum seekers who attempt to arrive in Australia by boat are mentioned above.  Australia retains responsibilities with respect to those asylum seekers: responsibility is shared with the territorial states (ie Nauru and PNG). All States, including Australia, owe obligations to those people over whom their agents exercise control. The detention centres in Nauru and PNG are run by private companies who are contracted to and paid by the Australian government.  Australia’s continuing responsibilities for asylum-seekers in its detention centres in Nauru and PNG were recently confirmed by the UN Committee against Torture.

DETENTION LAWS AROUND THE WORLD REGARDING ASYLUM-SEEKERS

AUSTRALIA

Australia first introduced mandatory detention of asylum seekers in 1992 in response to a wave of boat arrivals. This was expanded in 1994 to include all asylum seekers arriving by boat. Mandatory detention remains part of the official policy of the Australian government to this day, despite international decisions which find that the policy breaches human rights (see, eg, A v Australia).

Between 2001 and 2007, and since August 2012, asylum seekers who attempt to arrive in Australia by boat have been processed in Nauru and PNG. Others have been detained in mainland Australia or (since 2007) in the remote Australian territory of Christmas Island. While Australia maintains a statutory regime of mandatory immigration detention, many asylum seekers have been allowed to live in the community while their claims are being processed.

In 2004, the High Court of Australia found that persons in immigration detention could be detained indefinitely (Al-Kateb v Godwin). However, in 2014, the High Court (in Plaintiff S4-2014 v Minister for Immigration and Border Protection) ruled that the detention of asylum seekers is illegal if is not “necessary and incidental” to the purpose of processing their claims for asylum or to deporting them to another country (see this blog on the case). The wider ramifications of Plaintiff S4-2014 case are not yet known.

There have been a number of reports condemning the conditions within Australia’s immigration detention facilities, particularly for children. In early 2014, an asylum seeker was murdered during a riot at the detention centre on Manus Island. In late 2014, an asylum seeker died from a lack of an injury sustained while in detention on Manus Island, prompting an inquiry into the lack of appropriate medical services for those in detention.

EUROPE

The practise of detention for asylum seekers varies across Europe. Some European nations, such as Germany, France and the Netherlands, have voluntarily committed to a Common European Asylum System (CEAS), which limits the use of mandatory detention solely to instances where it is absolutely necessary and for periods shorter than six months. However, other European countries have refused to participate in this programme. Indeed, mandatory detention policies are used in a number of European countries, including the UK, Ireland, Italy, Greece and Malta.

Although the EU itself has imposed a limit of six months on the detention of asylum seekers (Directive 2008/115/EC), a number of countries, including the UK and Ireland, refuse to place an upper limit on detention periods. In practice, periods of detention vary from as little as 32 days in France to 20 months in Latvia. Periodic increases in the number of asylum seekers, such as during the 2011 civil war in Libya, have also led to increased periods of detention.

CANADA

Under Protecting Canada’s Immigration System Act 2012, people who arrive in Canada without a valid visa are subjected to mandatory detention. Detention of each person is reviewed after 14 days, and then every six months.

NEW ZEALAND

New Zealand amended its Immigration Act in 2013 which provides for the detention of members of a “mass arrival group” who arrive in New Zealand without a visa, upon a court order. An explanation of this development may be found here.

Updated 4 March 2015