On 31 March 2015, the Latvian Centre for Human Rights (LCHR) has organised a seminar „Practical aspects of monitoring immigration detention and forced return”. The seminar was organised in the framework of a project „Developing good practices: promoting compliance with the Return Directive in Latvia, Lithuania and Slovakia”. Project is co-financed by the European Union under the European Return Fund - Community Actions 2012
The purpose of the seminar was to promote exchange of experience on monitoring immigration detention and forced return among the national authorities and NGOs. Additionally, the seminar aimed at raising awareness on the standards with regard to monitoring immigration detention and the alternatives to detention (ATD).
The seminar brought together 29 participants, including representatives from the State Border Guard (SBG), the Office of Citizenship and Migration Affairs (OCMA), Ministry of the Interior, the Ministry of Welfare, the Ministry of Justice, the Ombudsman’s Office, the State Legal Aid Administration, the Riga City Council, judges and lawyers.
In the first of the seminar, representatives from the national preventive mechanisms (NPMs), established in accordance to the Optional Protocol to the Convention Against Torture (OPCAT), from Switzerland and the UK as well as the Ombudsman of the Republic of Latvia presented their experience. Latvia has not ratified the OPCAT, although there have been discussions on its ratification. The LCHR made a presentation of preliminary study results with regard to immigration detention in Latvia.
In the opening speech, the LCHR’s researcher Svetlana Djackova emphasized a need for Latvia to be better prepared for receiving and return migrants according to the European standards; although the numbers of asylum seekers and irregular migrants are quite small, they are increasing.
The Vice President of the Swiss National Commission for the Prevention of Torture (hereinafter - the Commission) Alberto Achermann presented the Swiss experience on immigration detention and forced return monitoring. The Commission's mandate is quite broad. The Commission examines the situation of detainees and regularly visits all places where persons are deprived of their liberty. The Commission addresses recommendations to the competent authorities with the aim to prevent any form of torture, cruel, inhuman or degrading treatment or punishment and to improve the treatment of persons deprived of their liberty. The Commission is composed of twelve members appointed for a four years term. Members have extensive experience and the necessary professional and technical skills and expertise in the fields of medicine, psychiatry, law and intercultural relations. The Commission has unrestricted access to all kinds of data and information, which it needs to accomplish its mandate. The Commission can access all places of detention and can interview detainees and all other person who might give valuable information. The main method that is used by the monitoring is confidential interviews with officials, including medical staff, police officers and detainees. A draft report, including all recommendations, is discussed with the officials. After reports are published on the Internet and in the media, institutions may also come up with a written statement in response to the report, which will be published, together with the report on the website of the Commission. As a very important aspect, noted by A. Acherman, is a dialogue with cantonal officials, judicial officials as well as politicians. Since 2012 the priorities of the Committee are: 1) to ensure correct detention conditions for persons detained awaiting repatriation and 2) monitoring repatriation flights. Special attention is paid to the vulnerabilities: poor knowledge of language, poor knowledge of the legal system, little contacts in the country to stay, health status often unknown, identity unclear, etc. A. Achermann drew attention to the fact that the immigration detention standards are set, but they are scattered, incomprehensive, inconsistent and partly not applicable. Therefore, there are great differences between states and even within the states, and there is a need for recognized national standards. There is no a special mandate for Commission on monitoring of forced return. Monitoring is based on the OPCAT and the national law. The Commission has monitored only special flights. The Commission does not intervene in a monitoring process. The Commission is conducting monitoring of the whole process from the cell to the country of destination. Interviews with the returnees are usually not performed unless the expulsion fails; the Commission visits the place of detention. Complex situations in relation to forced return are discussed with the authorities. Two times a year there are meetings with all the circles concerned (NGO`s, Swiss Medical Association, executing authorities). Annual reports are publicly available.
Bev Alden, an Inspector of Her Majesty`s Inspectorate of Prisons (HMIP) from the UK, presented the British experience of immigration detention and forced return monitoring. The Inspectorate's role is to ensure independent inspection of detention, to report on conditions and treatment, and promote positive outcomes for those detained and the public. The Inspectorate was established in 1982 by amendments to the 1952 Prison Act. The UK has ratified the OPCAT in 2003. In 2009, the NPM was created; it is made up of 20 existing bodies with powers to inspect and monitor places of detention. One of the members of NPM is the HM Inspectorate Prison Inspectorate. In order to monitor detention and prevent torture, the NPM must be able to access all places of detention; speak to detainees and others in private; choose which places to visit and which people to talk to; access information on places of detention and on detainees and their treatment and conditions. The HMIP inspects prisons, police custody, immigration detention, military detention, court custody, customs custody facilities and secure training centres for children. The HMIP inspects according to its own set of published standards called “Expectations”. There are separate “Expectations” for male prisoners, female prisoners, children and young people, immigration detention, police custody, court custody and armed forces. Monitoring visits in places of detention are independent and impartial and unannounced. Inspectors have unfettered access, with ability to arrive unannounced, go anywhere and talk to anyone. After about 16 weeks after the visit report is published. Residence conditions are evaluated, taking into account four aspects - safety, respect, purposeful activity and preparation for removal and release. Evidence can be obtained as a result of observation, group discussion with detainees, individual interviews with detainees and staff, examination of documents, casework analysis, etc. In the UK, there are 11 immigration removal centres, one pre-departure accommodation designed for families with children and 34 short-term holding facilities. The HMIP has inspected enforced removals, including flights, since 2010, following the death of an Angolan detainee during deportation. The main findings in 2014-2015, mentioned by B. Alden, are as follows: detainees were transported and arriving at centres too late at night, and some were subject to excessive moves around the state; some of the immigration removal centres looked and felt like a prison; some security procedures were disproportionate; detainees were not permitted access Skype or social networks to maintain contact with family and friends; many detainees had no access to a lawyer to help in their case.
A representation of the Ombudsman’s Office of the Republic of Latvia Ineta Pilane shared the experience of the Ombudsman’s Office in monitoring forced return, which started in July 2011. The process of monitoring includes three stages: visiting the foreigners at the places of their detention; surveying the foreigners; monitoring of actual expulsions. Recommendations are provided at the end of monitoring process, if necessary. The monitors are not allowed to intervene into the process of forced removal. The functions of the Ombudsman’s Office are regulated by both the Law on the Ombudsman’s Office and the Immigration Law. The Office has the right to obtain information from the authorities, to ask for social assistance or improvement of detention conditions. In practice, monitoring has been focused on surveying the foreigners and observing the detention conditions. During the time period from 1 July 2011 until March 2015, 110 foreigners have been surveyed shortly before their removal. The questionnaire includes questions on access to information on the removal process, detention conditions, access to medical care, etc. There were concerns with regards availability of translation and conditions in the short-term places of detention. During the time period from 1 January 2013 until March 2015, the Ombudsman’s Office has monitored nine actual removals, including seven removals by air.
Svetlana Djackova informed that, according to the data of the OCMA, the number of voluntary returns have significantly exceeded the number of forced returns over the last year; such a trend was caused by various factors, including the voluntary return projects implemented by IOM. In 2014, the number of detained asylum seekers and foreigners in the return procedure has increased as compared to 2013. In 2014 274 asylum seekers, including 6 minors, and 196 foreigners, including 10 minors, were detained. There were 8 detained unaccompanied minors in 2014. The average term of detention of foreigners was 21 day in 2014. The analysis of a sample of the Daugavpils Court’s decisions on detention revealed that the argumentation for application of the detention grounds by the SBG has been insufficient, and it was concluded in some cases by the court. The possibilities to apply alternatives to detention are not sufficiently assessed by the SBG and by the Daugavpils Court. Although ATD have been increasingly applied, the number of detained foreigners significantly exceeded the number of those for whose the alternatives to detention have been applied. The following recommendations were proposed: the authorities should first consider the possibility to apply ATD when taking a decision on detention in each individual case; adopt a provision on the possibility to grant open places of residence for foreigners during the return procedure, particularly for families with children and vulnerable persons; assign funding for such places.
A representative of the SBG Mareks Honavko had concerns about ensuring human rights for foreigners if ATD are applied in respect to them, but the foreigners do not have sufficient financial means and the crisis centres are not foreseen for them by the law. In such a case, detention is the only opportunity to stay for such persons. According to S.Djackova, although the material conditions in the detention centre meet the standards, it is still a place of deprivation of liberty and cannot replace ATD.
In the second part of the seminar, the coordinator of advocacy work at the International Detention Coalition (IDC) Ben Lewis gave a skype presentation on ATD, the role of the community and the good practices. The IDC is a global network of over 300 NGOs, faith – based groups, academics and practitioners in more than 70 countries that advocate for and provide direct services to refugees, asylum seekers and migrants in immigration detention.
The IDC, through its international membership has observed two parallel trends occurring globally in relation to the detention of refugees, asylum seekers and migrants. There has been the dramatic increase in the use of immigration detention by states over the past 10-15 years. The use of detention is justified as being the most effective way to prevent irregular entry or to control or manage people once they have arrived. The second trend is a more recent shift over the past five years by many states to implement a more human-centred approach to migration management, including the exploration and implementation of ATD and the use of detention in cases of last resort only. The reasons for this trend are following. First, alternatives have been found, on average, to be around 80% cheaper than detention. Second, there has been a growing criticism of immigration detention practices, particularly given the severe and well-known mental and physical health harms that detention has on people – and especially with regard to particularly vulnerable groups such as children, families, asylum seekers, or those who have been exposed to torture, trauma and other abuse either prior to or during their migration used for detention polices worldwide. In fact, there is no statistical correlation between an increase in detention practices and a decrease in irregular arrivals.
The IDC defines ATD as “any law, policy or practice by which persons are able to reside in the community, without being detained for migration-related reasons”. This broad approach to ATD is based upon a 2011 study IDC completed looking at the ATD practices of 28 countries around the world, entitled “There are Alternatives”. In this study it was found more than 50 types of ATD being used effectively across all regions of the world. It was found more than 50 types of ATD being used effectively across all regions of the world. There were found a number of very effective community-based care models. By community-based models IDC mean all of the strategies, programs, and approaches that governments can take to effectively engage migrants in the migration process so that they do not have to resort to detention. Three of the primary benefits of community-based ATD are cost, compliance and voluntary return. IDC found that ATD programs are most successful when: 1) there is a focus on early intervention; 2) individuals are informed and feel that have been through a fair process; 3) they provide holistic case management with a goal of case resolution, not simply removal; 4) any conditions imposed are not overly onerous and 5) individuals are able to meet their basic needs. Positive ATD practices are as follows:
Individualized screening and assessment are important tools in reducing unnecessary detention, as authorities can identify and assess levels of risk and vulnerability as well as the strengths and needs of each person. Critical areas for assessment which was identified in research are the following: legal obligations, identity, health and security checks, vulnerability and individual case factors.
Case management – can be understood as “a comprehensive and coordinated service delivery approach widely used in the human services sector to ensure a coordinated response to, and support of, the health and wellbeing of vulnerable people with complex needs”. When used properly, case management can contribute to ensuring that the elements of successful ATD outlined above are in place.
Limited use of restrictions or conditions – the IDC`s findings indicate that overly onerous conditions actually have an adverse effect on compliance and successful case resolution outcomes. While conditions or restrictions might be imposed, they are absolutely necessary, and when deemed to be proportionate in each individual case.
During the panel discussion, the representative of the SBG Mareks Hoņavko pointed to the SBG’s initiative to propose ATD through cooperation with municipalities and their shelters and crisis centres. However, such an ATD requires funding. According to M.Honavko, NGOs should be more actively involved in providing assistance in concrete cases as well as to conduct studies on the role of NGOs in other states. M.Honavko disagreed that ATD are cheaper than detention, as no calculation of such costs was provided. If a person is granted an ATD, there should be access to medical care, costs for transport, place of residence, etc.; none of such costs are currently provided. M.Honavko believed that Latvia is a too small country to have a special open centre for foreigners; building of such a centre would very expensive and useless in terms of the state budget. According to M.Honavko, although ensuring social assistance to foreigners is outside the SBG’s competence, the SBG still has been involved in communication with municipalities, guiding children to school and has tried to look for solutions.
The head of the Division on families with children of the Riga City Council’s Welfare Department Agnese Igaune agreed to M.Honavko. In 2012, a family with many children was released from detention and there was the need for finding solutions; no changes have occurred until now. There are a lot of remaining issues, e.g. dealing with situations when foreigners are disabled, etc. The representative from the Riga City Council believed that there is a need to broaden the scope of persons for ensuring social services; integration measures are of particular importance. According to A.Igaune, NGOs and the Ombudsman’s Office should more actively involve in searching for solutions. Although this is a matter of the whole community, funding for work with foreigners should be secured. There is a need to agree on the place of residence for such foreigners: according to A.Igaune, the crisis centres are not suitable and prepared for receiving foreigners, and there is a need for special social services.
The Director of the Legal Department of the Ministry of the Interior Martins Razna pointed to the legal amendments with regard to immigration detention. It is planned to come back to the issue of amendments to the Immigration Law, which have been initiated before, and to elaborate a policy planning document, with the involvement of NGOs.
The Head of the crisis centre for families “Milgravis” Margita Kalnina - Laksa shared the centre’s experience to work with foreigners, including the family with children which could not be returned. According to her, such a work is still not in competence of the centre, as there is a need of special skills to work with various nationalities, ensuring translation, etc.
In the seminar’s conclusion part, S. Djackova said that the issues, which had been discussed before are complex and no immediate solution can be found. The issue of funding is still of high importance, but lack of funding to ensure ATD should not be a reason for refusal to solve the situation. The government should still think on the opportunities to provide funding, as detention should be a measure of last resort. The good practices of other states should be learned. The initiative of the SBG to seek further solutions with regard to ATD can certainly be considered as a good practice.
- Presentation by Alberto Achermann "Monitoring Immigration Detention and Forced Return standards and Swiss experiences"
- Presentation by Bev Alden "Inspecting Immigration Detention"
- Alternatives to detention: the role of the community and best practices
- Ben Lewis notes on Alternatives to detention: the role of the community and best practices
- Presentation by Ineta Pilane (in Latvian)
- Presentation by Svetlana Djačkova (in Latvian)
- European immigration Detention Rules. Existing Standards