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Submission to the National Inquiry into Children in Immigration Detention from

Michael Williams

The following material was provided to the Inquiry by Michael Williams, Chairman of the Swedish Network of Refugee and Asylum Support Groups in a series of emails in April 2003.

Tuesday, 8 April 2003

I enclose part of an address I gave to the Japanese Bar Association in August 2001 on the topic. These regulations still apply. Regarding children, they cannot be placed in detention unless they have previously been asked to report regularly to the authorities ( 'uppsikt' in Swedish): This can be to the police or officials of the Migration Board. Children can be detained with one of their parents for a maximum of 72 hours and under exceptional circumstances another 72 hours. However unaccompanied minors cannot be detained at all. If you wish I can send you the section of the Swedish Aliens Law that deals with these rules as well as the guideline notes of the Migration Board - both unfortunately only in Swedish. However in my essay I do translate quite a lot of these.

Sweden does not have a mandatory policy of detaining all asylum seekers who claim asylum without identity documents. As you will see in my presentation the law allows for this but it is not mandatory.

I hope you will find this information useful. I apologise for the delay. The Migration Board website provides some information in English www.migrationsverket.se

If you have any further queries do not hesitate to contact me.

Yours sincerely

Michael Williams

Chairman of the Swedish Network of Refugee and Asylum Support Groups (FARR)

Today I have been asked to focus on the issue of the detention of asylum seekers and present the Swedish model. My presentation will be structured in the following way. First I will present the legal framework which governs who may be detained, when and for how long. Then I will present the guidelines for detention used by the Migration Board. I will then try to evaluate the current system and describe some protests that have been made against the existence of detention centres; the experiences of NGOs visiting these centres, some statistical data and a brief comparison with some other countries in the European Union. I will also briefly refer to the positions on detention of UNHCR and the European Council on Refugees and Exiles, an umbrella organisation for over 70 NGOs in Europe active in the field of refugee protection.

The legal framework

Detention

According to Chapter 6 Section 2 of the Aliens Act, an alien over 18 years of age may be detained in a special detention centre if:

(a) his/her identity is unclear;
(b) detention is necessary for the investigation of his/her right to stay in Sweden;
(c) it is likely that he/she will be refused entry or expelled, or this is necessary to the enforcement of an existing refusal of entry or expulsion order.

In principle, detention under paragraph (c) can only be ordered if there are some reasons to presume that the alien otherwise will go into hiding or will engage in criminal activities in Sweden.

Detention under paragraph (b) is limited to 48 hours. In the other cases, it is limited to two weeks unless there are exceptional grounds for a longer period. However, if the refusal of entry or the expulsion order has already been made, the detention period may last up to two months, and even longer if there are exceptional grounds. Due to the possibility of extending the detention on exceptional grounds, there is no limitation to the overall detention period. However the decision to keep a person in detention must be reviewed every two months.

Decisions regarding detention may be appealed to the County Administrative Court. A detainee always has a right to legal counsel if detained more than three days.

The rules regarding children are stated in chapter 6 section 3. A child may be put into detention if the case will be decide under the accelerate procedure and it is highly probable that the case will be rejected. This happens mainly in expulsions to safe third countries which the applicant has passed through For the European Union there is a special convention called the Dublin convention with rules to decide which country is responsible for processing an asylum application. However there must be a clear risk that the child would otherwise disappear and thereby prevent the expulsion from taking place. Furthermore the alternative measure of surveillance must first be used before resorting to detention

A child may also be placed in detention if the child has previously been under surveillance and that has not proved sufficient to allow the expulsion order to be carried out. The child must not be separated from its legal guardian or if they are more than one not from the other, by placing one guardian and the child in detention. If the child has no legal guardian detention can only be used in very exceptional cases

When a child is placed in detention there is a maximum time limit of 72 hours after which the child must be released. Only in very exceptional circumstances can a child be detained for a further 72 hours.

Four authorities have the power to make decisions on detention The police authority can make such a decision before an alien has his asylum case registered at the Migration Board and also in cases where aliens have been expelled on grounds of criminality and served their sentence but are still in the country. The police is also responsible for decisions on detention when the Migration Board has handed over a case to them. This happens when the Migration Board no longer considers that the persons will leave the country on a voluntary basis even though their appeal has been rejected. Normally a rejected asylum seeker has 14 days to leave the country voluntarily although this may in practice be extended if the circumstances warrant.

The Migration Board can make decisions on detention as long as they are handling the asylum case. The Aliens Appeals Board can make decisions on detention while dealing with an appeal but once the decision has been taken the responsibility for carrying out a decision on detention falls on the Migration Board unless the case is a new application and the expulsion of the asylum seeker is already the responsibility of the police. If a case is being dealt with by the government it is the minister responsible who decides on whether an alien should be detained. The police are also allowed to put an alien in detention even if this is not their formal responsibility when circumstances so require - for example the risk of the alien disappearing. Even the coastguards and customs officers can detain an alien if there is a danger that the alien will go into hiding. However the detention must be reported immediately to the police, who then take over responsibility.

Since October 1 1997 the Migration Board has taken over responsibility for implementing decisions on detention and for running detention centres. Prior to that it was the responsibility of the police authorities, who sometimes used private security companies to supervise the detention centres. They also used police cells frequently and sometimes prisons. This system was criticised because asylum seekers should not be treated as criminals.

In the current system the officers of the Migration Board are not allowed to use force to implement a decision. They must therefore call on the police for assistance to for example escort an alien to or from the detention centre.

There are currently four detention centres in Sweden in or near the major cities of Stockholm, Gothenburg and Malmö and in the town of Flen with a total capacity of ................ The Aliens Act contains specific rules on how the detention centre should be run.

Aliens who are held in detention must be treated humanely and their dignity should be respected. By humane treatment is meant:

the foreigner is always the focal point and his or her case must be dealt with in a legal safe and expedient manner

a good relationship must be established between the detainee and the staff right from the very outset of the detainees entry to the premises

the foreigner must be able to feel secure and safe in this exposed situation

the staff must be sensitive to the needs of the detainee

Dignity should be respected based on the guidelines issued by UNHCR which state that the conditions for detainees should be humane with respect for the inherent dignity of the person.

The detainees are deprived of their freedom without being sentenced or being suspected of criminal activity. Depriving them of their freedom leads to many similarities with the prison service but the task is basically different, which is why the laws differ. Conditions in the detention centres should be similar as far as is possible to those at the regular reception centres run by the Migration Board . The only difference should be that the detainees are in a closed building and therefore have certain restrictions to their freedom of movement. Coercion or limitations in freedom of movement should not exceed what is necessary based on the grounds for the deprivation of freedom.

Activities at the detention centre should be formed based on the least impingement on the integrity of the individual and his or her rights. This means that all detainees have the right to send and receive letters to and from anyone they wish and that men and women need not share rooms unless they belong to the same family. The detainee also has the right to contact other people than detainees and must not be locked up in his or her room unless there are special ground for this. It is also natural that the detainee be allowed to keep valued personal belongings.

Religious observance is possible for persons of all creeds. It is a basic right according to the constitution. However this does not mean they can leave the centre to go to a mosque, shrine or church. Instead a neutral room is reserved for religious observance at the detention centre. Detainees are also able to request visits from pastors, imams and others who are important in their religious observance. Some faith communities see to it that their leader or a representative visits the detention centre regularly.

While at the detention centre the detainee has the right to a daily allowance in the same way as other asylum seekers. Daily activities are organised for both their physical and mental health. There is a library with access to internet, a number of other computers, a gym room and an enclosed outdoor area for ball games. Detainees are expected to help out with activities of daily living, keeping the rooms tidy and helping with work in the kitchen. If they refuse then their daily allowance can be reduced.

The detention centres have to take responsibility for all those aliens who have received an expulsion order but with regard to persons who have an expulsion order because they committed a serious crime these persons can be detained either by the prison authority or the police instead. Furthermore, detainees who pose a real threat to others can also be removed to police custody. However a child under 18 may never be placed in a prison or in police custody.

In other cases a problematic detainee can be confined to his or her room if this is necessary for the orderly running of the centre and for safety reasons or if the foreigner represents a danger to him or herself or to others. Such a decision must be reviewed as often as is required but at least every third day. If the person is a danger to himself then a medical examination should be promptly ordered. There is no requirement that detention confined to a room at the centre must be tried before removing someone to police custody or to the prison services.

Detainees are allowed visitors and to receive and make phone calls on an unrestricted basis but there can be limitations based on practical reasons regarding the safe running of the detention centre. Drunk visitors will not be admitted, nor will visits in large number sat the same time. Visiting hours should be generous and flexible and at times suitable to the visitor. More flexibility is shown to members of the family than to adult friends of the detainee These visitors can never be searched bodily however if it is necessary then a visit can be supervised for reasons of security. But a visit by legal counsel can only be supervised at the request of the detainee or legal counsel. If it is suspected that illegal objects have been handed over to the detainee then the detainee may be bodily searched after the visit. Visits should in general take place privately in a suitable room. If a visit is denied for some reason then the detainee has the right to appeal the decision. If a visitor does not wish to give his or her name then this is not in itself grounds to deny a visit, nor is it in itself sufficient grounds to decide to supervise the visit.

A detainee is not allowed to have alcoholic drinks or other stimulants or any object that can hurt anyone or be to the detriment of the keeping of order at the detention centre. basically the detainee should be allowed to retain personal objects of value and other belongings. Belts and braces are not normally taken from the detainee nor are objects such as personal cutlery, perfume bottles, deodorants. However the possession of a knife is not allowed. Regarding medicine there are restrictions to possessing many sleeping tablets. Since the staff at the detention do not have medical training it can sometimes be difficult to know what to decide in individual cases. However they can refer to guidelines issue by the Social Welfare Board

Detainees have the right to freedom of information and the right to express opinions in the same way as other citizens. Therefore no restrictions can be place on the individual's possession of certain newspapers or magazines. However the Migration Board does have a responsibility to limit the spreading of or access to for example pornographic materials or TV programmes which can be found offensive by other detainees.

If the detention centre staff suspect that a detainee may be in possession of forbidden substances such as drugs, alcohol, objects that can harm others or be a threat to order at the centre then a body search can be ordered. The detainee is often searched by the police before arriving at the centre. If that has taken place then the detainee is not body searched on arrival. If a body search is ordered then the law stipulates that it must not be carried out more thoroughly than the situation requires. Respect should be shown towards the detainee and a witness should be present unless this is declined by the detainee. Women may not be bodily searched in the presence of other men than doctors or qualified nurses. There are different degrees of body searches. The Migration Board staff are never allowed to carry out searches that involve examining the outer and inner parts of the body or the taking of tests. The Board staff can only examine clothes or any other object the person is wearing, bags, packages and other objects brought by the detainee to the centre.

Mail sent to the detainee can sometimes be the object of examination in which case it should be opened in the presence eof the detainee. If the detainee does not consent to the package being opened in his or her presence then the object should be put aside and not opened. An examination of the contents should not include reading a letter or other written documents. Mail from legal counsel, lawyers, international organs that have the right to receive complaints from individuals or from the UNHCR must not be opened.

If it is clear from the weight or thickness of a letter that it only contains written material then it should be handed over tot h detainee without any inspection. However if there is a reasonable suspicion that the letter or package can contain drugs, alcoholic drinks or dangerous objects then the detainee should be summoned and the object inspected. A letter must not be opened or scanned before the detainee gives permission for this. If the staff suspect that a letter may have passport or other ID document in it they are not allowed to open that mail. The only way the authorities can use their right to take care of passports is if the detainee shows it to them.

Personal belongings that the detainee cannot have in his or her room are stored at the detention centre unless the property is illegal, in which case it is handed over to the police. They can have access to these objects on leaving the detention centre. A list is made of all objects received for storage.

Regular security inspections are made at the detention centre to make sure that windows, walls, alarm systems, electricity plugs and the like are in order. However such inspections cannot involve a routine search of the personal belongings of the detainees. Bags, bedclothes, cupboards, wardrobes and chests of drawers cannot be searched unless there are well founded suspicions of the possession of forbidden objects.

Well these are some of the formal regulations governing the detention of asylum seekers. You may wonder who supervises the implementation of these regulations. At the national level there is internal control through the head office of the migration Board but in Europe we also have another instance namely the Committee for the Prevention of Torture under the Council of Europe. This committee has a mandate to regularly inspect conditions in prisons and detention centres of the over 40 members of the Council of Europe. They also have the possibility of making lightning visits in acute situations. However normally the committee plans its visits well in advance and in 1998 it made an inspection of Sweden. The Committee also met representatives of NGOs and I was the one who co-ordinated that meeting. The Committee found the situation in Sweden on the whole more than adequate but did come with some pointers. I quote:

67. However, as already indicated (cf. paragraph 33), some allegations were heard of the use of excessive force and/or unusual means of restraint by prison service transport (TPT) officers during the expulsion of foreign nationals from Sweden.

The most serious allegations of ill-treatment heard by the delegation concerned a foreign national expelled from Sweden in late December 1997, who subsequently made a number of detailed written allegations regarding the manner in which he had been treated by prison officers from the TPT (blows with a baton, gagging of the mouth with adhesive tape) during an earlier abortive deportation attempt. Documents obtained by the CPT's delegation from the TPT Central Office in Gothenburg partially corroborated the account given by the person concerned.

68. The CPT recognises that it will often be a difficult task to enforce an expulsion order in respect of a foreign national who is determined to stay on a State's territory. Law enforcement officials may on occasion have to use force in order to effect such a removal. However, the force used should be no more than is reasonably necessary. It would, in particular, be entirely unacceptable for persons subject to an expulsion order to be physically assaulted as a form of persuasion to board a means of transport or as punishment for not having done so. Further, the Committee must emphasise that to gag a person is a highly dangerous measure.

69. The delegation's concerns about the means of restraint which may be used by prison service transport officers were heightened by the equipment which it found during impromptu inspections of two separate TPT vehicles at two different locations - Arlanda Airport and Österåker Prison. Both vans were carrying pouches which contained chains approximately two metres long, fitted with a number of padlocks. In each case, members of the TPT crew demonstrated the manner in which this item could be used to secure a detainee, namely fastened around the waist, passed down the inside of a trouser leg and secured tightly around the ankle in order to fix one leg in a partially-flexed position.
During the talks held at the end of the CPT's visit, the Swedish authorities indicated that such "body chains" were not an approved means of restraint (8) and provided an assurance that they would be withdrawn from service forthwith. run a real risk of being subjected to torture or ill-treatment.

3. Conditions of detention

76. The Aliens Act stipulates that detention for investigation (e.g. at the point of arrival/entry) may last for up to six hours. Following a formal detention order, deprivation of liberty can last for up to 48 hours (when such a measure is required for the purpose of establishing a person's identity), or for renewable periods of two weeks (if detention is deemed necessary in order to facilitate the investigation of a person's right to remain in Sweden; if it is likely that a person will be refused entry or expelled; in order to ensure that a refusal-of-entry or expulsion order can be enforced). It should also be noted that a decision to detain may be appealed before an administrative court.
The detention of young persons under the age of 18 is only allowed in exceptional cases (e.g. in order to ensure that a refusal-of-entry or expulsion order can be enforced) and is subject to additional safeguards (the young person concerned cannot be separated from his/her guardian as a result of detention unless there are exceptional grounds for so doing). Moreover, detention of young persons is limited to a period of a maximum of 72 hours, which can only be renewed once.

77. Persons detained for investigation at Arlanda Airport were placed in a spacious waiting room equipped with a bench, which was quite adequate for its declared use of holding persons for a few hours. Whenever foreigners were required to remain in custody for more than a few hours (and always if they were detained overnight) they were transferred to the Stockholm Region Detention Centre.

78. As already indicated, the Stockholm Region Detention Centre - a closed unit situated within the complex of the (open) Carlslund Refugee Centre at Upplands Väsby - was first visited by a CPT delegation in May 1991 (cf. CPT/Inf (92) 4, paragraphs 148 to 150). At the time of the 1998 visit, the centre had a maximum capacity of 40 places and was holding 26 inmates, the average length of stay being about four weeks. As had been the case in 1991, material conditions of detention at the centre were quite satisfactory.

79. The most significant change at the centre concerned staff; at the time of the 1998 visit, it was no longer staffed by the police, but by Immigration Board personnel. The delegation observed that staff appeared to be attentive to the needs of inmates and were well equipped to perform their duties vis-à-vis detained foreigners (e.g. as regards knowledge of languages).

80. Following The CPT has recognised that it will often be a difficult taskthe 1991 visit, the CPT criticised the level of activities offered to persons detained at the centre for lengthy periods.

At the time of the 1998 visit, efforts were being made to provide a better regime for inmates. In addition to access to an outdoor exercise area, inmates could use an adequately equipped fitness facility and were offered the possibility to play table tennis and other games, to borrow books from the in-house and a public library, and to read newspapers; further -subject to the availability of staff to provide supervision - they could have access to the Internet. In addition, they could listen to the radio and watch a broad selection of both national and foreign television channels. However, the educational activities on offer were not as well developed, apparently due to space constraints, and work opportunities for inmates were very limited.

In this connection, the delegation was informed that the detention centre was soon to be transferred to more spacious premises, which would allow the range of activities offered to inmates to be further developed. The CPT would like to receive additional information on this subject.

82. Basic health care for immigration detainees held at the Stockholm Region Detention Centre was provided by a medical doctor who attended the centre for one hour per week, and a nurse who was present in the establishment for three (half) days every week. Outside those periods, assistance could be sought from the well-staffed health care service at Carlslund Refugee Centre or from a local emergency service, which provided both somatic and psychiatric care.

However, only emergency and ante-natal care was provided free of charge, there was no systematic medical screening on reception, medical records were kept in a perfunctory fashion and preventive medicine was not practised at the centre.

The CPT considers that the health care services provided to inmates at the Stockholm Region Detention Centre for foreigners should be developed. In particular, all inmates should be medically screened on reception and information should be provided to newly-arrived immigration detainees inter alia reminding them of basic hygiene measures. Further, appropriate arrangements should be introduced to ensure that health care is provided free of charge to all inmates who are not in a position to pay for such services.

C. The treatment of foreign nationals under the Aliens Act

98. In the course of the visit, the CPT's delegation heard no allegations - and gathered no other evidence - of physical ill-treatment of foreigners on arrival/apprehension or whilst detained by the police. Further, no such allegations were heard concerning foreigners being held under the Aliens Act at the Stockholm Region Detention Centre (Carlslund) or in other detention centres/prisons in Sweden.

However, some allegations were heard of the use of excessive force and/or unusual means of restraint by prison service transport (TPT) officers during the expulsion of foreign nationals from Sweden. The most serious allegations of ill-treatment heard by the delegation concerned a foreign national expelled from Sweden in late December 1997, who subsequently made a number of detailed written allegations regarding the manner in which he had been treated by prison officers from the TPT (blows with a baton, gagging of the mouth with adhesive tape) during an earlier abortive deportation attempt. Documents obtained by the CPT's delegation from the TPT Central Office in Gothenburg partially corroborated the account given by the person concerned.

To enforce an expulsion order in respect of a foreign national who is determined to stay on a State's territory. Law enforcement officials may on occasion have to use force in order to effect such a removal. However, the force used should be no more than is reasonably necessary. It would, in particular, be entirely unacceptable for persons subject to an expulsion order to be physically assaulted as a form of persuasion to board a means of transport or as punishment for not having done so. Further, the Committee has emphasised that to gag a person is a highly dangerous measure.

101. Material conditions in the waiting rooms for immigration detainees at Arlanda Airport and at the Stockholm Region Detention Centre were quite satisfactory. Moreover, the level of activities offered to persons held at the Detention Centre for lengthy periods had improved since the CPT's first visit to the Centre, and the transfer of the establishment to more spacious premises should allow the range of activities to be further developed.

However, the CPT has indicated that health care services provided to inmates at the Stockholm Region Detention Centre should be developed. In particular, all inmates should be medically screened on reception and information should be provided to newly-arrived immigration detainees inter alia reminding them of basic hygiene measures.

The government wrote in its reply:

1. Torture and other forms of ill-treatment
68. The CPT has emphasised that no more force than is reasonably necessary should be used when enforcing an expulsion order. It is entirely unacceptable for persons who are subject to an expulsion order to be physically assaulted as a form of persuasion to board a means of transport or as punishment for not having done so. Further the CPT has emphasised that to gag a person is a highly dangerous measure.

The Government totally agrees with the CPT on this issue. The CPT has referred to a case involving transport from Sweden of a person subject to an expulsion order. The National Prison and Probation Administration has investigated the incident. The investigation shows that the deportation was, in part, conducted in such a way and using such methods as are contrary to accepted practice in the prison service transport (TPT). However, the incident occurred at the airport in Zürich, Switzerland and the criticised measures were taken by the Swiss police. The Head of the transport service assessed that the Swedish prison officers did not have any real opportunity to direct the methods that were to be used, since they understood that the Swiss police took over responsibility for this part of the transport operation and their actions followed established routine. The National Prison and Probation Administration has contended that the methods used are contrary to the view of how detained persons are to be treated as expressed in Swedish legislation.

69. The CPT has asked for confirmation that the body chains found in the TPT's vehicles have been withdrawn from service.

The National Prison and Probation Administration decided on 11 November 1998 that body chains may no longer be used. The decision in attached is appendix 5.

2. Conditions of detention

82. The CPT considers that the health care services provided to inmates at the Stockholm Region Detention Centre for foreigners should be developed.

An alien can be taken into custody if there is uncertainty about his or her identity, if it is necessary to be able to accomplish an investigation concerning the alien's right to stay in the country and also in situations of enforcement. Under the relevant legislation an alien who is taken into custody shall be entitled to the same medical care as is given to an alien who applies for asylum. This includes emergency care, care that cannot be deferred, maternity care, contraceptive guidance, care in connection with abortion and measures in accordance with legislation on communicable diseases (smittskyddslagstiftning). For the care given to an alien he or she shall, as in the case with any other person, pay a certain fee. An asylum-seeker receives support in the form of a daily allowance, which is also payable if the alien is taken into custody. An alien who can be assumed to stay in Sweden for at least one year or more has the same right to medical care as a Swedish citizen. Medical screening for asylum seekers is provided to examine the need for emergency care or care that cannot be deferred or measures under legislation on communicable diseases. As soon as possible after arrival in Sweden, an alien who applies for asylum is offered an initial individual contact with the health service, in which the alien's individual status and need of further examination is determined. The medical screening therefore varies depending on his or her personal status and country of origin. If an alien is taken into custody in connection with his/her arrival in Sweden, the above-mentioned initial contact will take place at the detention centre. If, on the other hand, the alien taken into custody has already been in Sweden for some time, medical screening will already have been carried out. In such cases there is no need for general medical screening. As regards inmates' costs for health care, the aim is, according to the allowances system, that the alien should be ensured adequate means.

Tuesday, 8 April 2003

[Questions asked of Mr Williams by the Inquiry:]

1. Could you clarify who would make the decision to detain a child for 72 hours - is it the Migration Board? Does the same body review detention for another 72 hours? What happens after that time - would the child be placed on strict reporting requirements?

2. You say that a child cannot be placed into detention without a guardian - does this mean that both the child and the guardian must meet the requirements for detention before a child can be detained? What happens if the guardian must be detained but not the child - are they separated? Or does this mean that the guardian cannot be detained when he or she has a child?

3. Could you specify which sections of the Aliens Act provide for the detention of children? (I don't need copies but would like to cite them). Also which sections provide for detention of adults?

4. Could you specify which sections of the Aliens act provide the specific rules on how the detention centre should be run? Do those rules specifically adopt UNHCR guidelines or other UN guidelines? If so, which guidelines or rules?

5. The Australian government has spoken of the Swedish Identity Card system as a way of tracking where asylum-seekers are at all times. I was wondering whether children are ever issued those cards? Can you briefly explain their function? Do you have any views about the effectiveness of that system in ensuring that children and their families do not disappear into the Swedish community?

6. I just have one additional question. Are decisions to detain (adults or children) appealable in Swedish Courts? If so, what is the name of the court and which section of the Aliens Act provide that right?

Tuesday, 8 April 2003

Here are the answers to most of your questions:

1. Could you clarify who would make the decision to detain a child for 72 hours - is it the Migration Board?

YES usually. But even other bodies such as the police, the Aliens Appeals Board and the government can make the decision. It is the instance or authority that is responsible for removal that has to make the decision. In normal cases this is the Migration Board but if the rejected applicants refuse to comply the police take over the case. The Appeals Board and the government are involved much less frequently.

Does the same body review detention for another 72 hours?

YES but after 72 hours exceptional circumstances are required to approve a prolongation
After 72 hours in detention the child and guardian have the right to free legal counsel who can negotiate with the authorities regarding immediate suspension of detention.

What happens after that time - would the child be placed on strict reporting requirements?

The child and guardian must be released if no removal is carried out within 144 hours. If there are practical hindrances to removal such as the lack of cooperation of home country authorities and this is deemed to be ongoing then the child and guardian may well be released without any further measures. However if removal can be expedited shortly after the end of the detention period strict reporting requirements would be used. In practice children are not detained unless the authorities are sure they can remove the family without formal difficulties within the time limit for detention.

2. You say that a child cannot be placed into detention without a guardian - does this mean that both the child and the guardian must meet the requirements for detention before a child can be detained?

YES

1What happens if the guardian must be detained but not the child - are they separated?
IF THE CHILD ONLY HAS ONE GUARDIAN IN SWEDEN THEN NEITHER OF THEM CAN BE PLACED IN DETENTION. IF BOTH GUARDIANS ARE IN SWEDEN THEN ONE GUARDIAN CAN BE DETAINED WHILE THE REST OF THE FAMILY IS REQUIRED TO REPORT REGULARLY TO THE AUTHORITIES.

3. Could you specify which sections of the Aliens Act provide for the detention of children?

Aliens Act (1989:529) Chapter 6 section 3 (main reference) and also section 4, section 5 and section 19

Also which sections provide for detention of adults.

Chapter 6 sections 2,(main section) and 4, 5, 6,7,8

4. Could you specify which sections of the Aliens act provide the specific rules on how the detention centre should be run?

Chapter 6 sections 18-31

Do those rules specifically adopt UNHCR guidelines or other UN guidelines? UNHCR guidelines published in Detention of Asylum Seekers in Europe vol 1 no 4 October 1995 Chapter 2 in the UNHCR European Series ISBN 92-1-100 707 -0 and also updates of these such as following:

UNHCR’s Guidelines on applicable Criteria and Standards relating to the Detention of Asylum-Seekers

Introduction

1. The detention of asylum-seekers is in the view of UNHCR inherently undesirable. This is even more so in the case of vulnerable groups such as single women, children, unaccompanied minors and those with special medical or psychological needs. Freedom from arbitrary detention is a fundamental human right, and the use of detention is, in many instances, contrary to the norms and principles of international law.

2. Of key significance to the issue of detention is Article 31 of the 1951 Convention. Article 31 exempts refugees coming directly from a country of persecution from being punished on account of their illegal entry or presence, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The Article also provides that Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary, and that any restrictions shall only be applied until such time as their status is regularised, or they obtain admission into another country.

3. Consistent with this Article, detention should only be resorted to in cases of necessity. The detention of asylum-seekers who come "directly" in an irregular manner should, therefore, not be automatic nor should it be unduly prolonged. This provision applies not only to recognised refugees but also to asylum-seekers pending determination of their status, as recognition of refugee status does not make an individual a refugee but declares him to be one. Conclusion No. 44(XXXVII) of the Executive Committee on the Detention of Refugees and Asylum-Seekers examines more concretely what is meant by the term "necessary". This Conclusion also provides guidelines to States on the use of detention and recommendations as to certain procedural guarantees to which detainees should be entitled.

4. The expression "coming directly" in Article 31(1), covers the situation of a person who enters the country in which asylum is sought directly from the country of origin, or from another country where his protection, safety and security could not be assured. It is understood that this term also covers a person who transits an intermediate country for a short period of time without having applied for, or received, asylum there. No strict time limit can be applied to the concept "coming directly" and each case must be judged on its merits. Similarly, given the special situation of asylum-seekers, in particular the effects of trauma, language problems, lack of information, previous experiences which often result in a suspicion of those in authority, feelings of general insecurity, and the fact that these and other circumstances may vary enormously from one asylum-seeker to another, there is no time limit which can be mechanically applied or associated with the expression, "without delay". The expression, "good cause", requires a consideration of the circumstances under which the asylum-seeker fled. The term, "asylum-seeker", in these guidelines applies to those whose claims are being considered under an admissibility or pre-screening procedure as well as well as those who are being considered under refugee status determination procedures. It also includes those exercising their right to seek judicial and/or administrative review of their asylum request.

5. Asylum-seekers are entitled to benefit from the protection afforded by various International and Regional Human Rights Instruments which set out the basic standards and norms of treatment. Whereas each State has a right to control those entering into their territory, these rights must be exercised in accordance with a prescribed law which is accessible and formulated with sufficient precision for the regulation of individual conduct. For detention of asylum-seekers to be lawful and not arbitrary, it must comply not only with the applicable national law, but with Article 31 of the Convention and international law. It must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review to ensure that it continues to be necessary in the circumstances, with the possibility of release where no grounds for its continuance exist.

6. Although these guidelines deal specifically with the detention of asylum-seekers, the issue of the detention of stateless persons needs to be highlighted. While the majority of stateless persons are not asylum-seekers, a paragraph on the detention of stateless persons is included in these guidelines in recognition of UNHCR’s formal responsibilities for this group and also because the basic standards and norms of treatment contained in international human rights instruments applicable to detainees generally should be applied to both asylum-seekers and stateless persons. The inability of stateless persons who have left their countries of habitual residence to return to their countries has been a reason for unduly prolonged or arbitrary detention of these persons in third countries. Similarly, individuals whom the State of nationality refuses to accept back on the basis that nationality was withdrawn or lost while they were out of the country, or who are not acknowledged as nationals without proof of nationality, which in the circumstances is difficult to acquire, have also been held in prolonged or indefinite detention only because the question of where to send them remains unresolved.

Guideline 1: Scope of the Guidelines

These guidelines apply to all asylum-seekers who are being considered for, or who are in, detention or detention like situations. For the purpose of these guidelines, UNHCR considers detention as: confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory. There is a qualitative difference between detention and other restrictions on freedom of movement.

Persons who are subject to limitations on domicile and residency are not generally considered to be in detention.

When considering whether an asylum-seeker is in detention, the cumulative impact of the restrictions as well as the degree and intensity of each of them should also be assessed.

Guideline 2: General Principle

As a general principle asylum-seekers should not be detained.

According to Article 14 of the Universal Declaration of Human Rights, the right to seek and enjoy asylum is recognised as a basic human right. In exercising this right asylum-seekers are often forced to arrive at, or enter a territory illegally. However, the position of asylum-seekers differs fundamentally from that of ordinary immigrants in that they may not be in a position to comply with the legal formalities for entry. This element, as well as the fact that asylum-seekers have often had traumatic experiences, should be taken into account in determining any restrictions on freedom of movement based on illegal entry or presence.

Guideline 3: Exceptional Grounds for Detention

Detention of asylum-seekers may exceptionally be resorted to for the reasons set out below as long as this is clearly prescribed by a national law which is in conformity with general norms and principles of international human rights law. These are contained in the main human rights instruments.

There should be a presumption against detention. Where there are monitoring mechanisms which can be employed as viable alternatives to detention (such as reporting obligations or guarantor requirements [see Guideline 4]), these should be applied first unless there is evidence to suggest that such an alternative will not be effective in the individual case. Detention should therefore only take place after a full consideration of all possible alternatives, or when monitoring mechanisms have been demonstrated not to have achieved their lawful and legitimate purpose.

In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved. If judged necessary it should only be imposed in a non discriminatory manner for a minimal period.

The permissible exceptions to the general rule that detention should normally be avoided must be prescribed by law. In conformity with EXCOM Conclusion No. 44 (XXXVII) the detention of asylum-seekers may only be resorted to, if necessary:

(i) to verify identity.

This relates to cases where identity may be undetermined or in dispute.

(ii) to determine the elements on which the claim for refugee status or asylum is based.

This statement means that the asylum-seeker may be detained exclusively for the purposes of a preliminary interview to identify the basis of the asylum claim. This would involve obtaining essential facts from the asylum-seeker as to why asylum is being sought and would not extend to a determination of the merits or otherwise of the claim. This exception to the general principle cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time.

(iii) in cases where asylum-seekers have destroyed their travel and /or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum.

What must be established is the absence of good faith on the part of the applicant to comply with the verification of identity process. As regards asylum-seekers using fraudulent documents or travelling with no documents at all, detention is only permissible when there is an intention to mislead, or a refusal to co-operate with the authorities. Asylum-seekers who arrive without documentation because they are unable to obtain any in their country of origin should not be detained solely for that reason.

(iv) to protect national security and public order.
This relates to cases where there is evidence to show that the asylum-seeker has criminal antecedents and/or affiliations which are likely to pose a risk to public order or national security should he/she be allowed entry.

Detention of asylum-seekers which is applied for purposes other than those listed above, for example, as part of a policy to deter future asylum-seekers, or to dissuade those who have commenced their claims from pursuing them, is contrary to the norms of refugee law. It should not be used as a punitive or disciplinary measure for illegal entry or presence in the country, and should be avoided for failure to comply with administrative requirements or breach of reception centre, refugee camp, or other institutional restrictions. Escape from detention should not lead to the automatic discontinuance of the asylum procedure, nor to return to the country of origin, having regard to the principle of non-refoulement.

Guideline 4: Alternatives to Detention

Alternatives to the detention of an asylum-seeker until status is determined should be considered. The choice of an alternative would be influenced by an individual assessment of the personal circumstances of the asylum-seeker concerned and prevailing local conditions.

Alternatives to detention which may be considered are as follows:

(i) Monitoring Requirements.

Reporting Requirements: Whether an asylum-seeker stays out of detention may be conditional on compliance with periodic reporting requirements during the status determination procedures. Release could be on the asylum-seeker’s own recognisance or, alternatively or additionally, that of a family member, NGO or Community group who would be expected to ensure that the asylum-seeker reports to the authorities periodically, complies with status determination procedures, and appears at hearings and official appointments.

Residency Requirements: Asylum-seekers would not be detained on condition they reside at a specific address or within a particular administrative region until their status has been determined. Asylum-seekers would have to obtain prior approval to change their address or move out of the administrative region. However this would not be unreasonably withheld where the main purpose of the relocation was to facilitate family reunification or closeness to relatives.

(ii) Provision of a Guarantor/ Surety. Asylum-seekers would be required to provide a guarantor who would be responsible for ensuring their attendance at official appointments and hearings, failure of which would result in a penalty, most likely the forfeiture of a sum of money, levied against the guarantor.

(iii) Release on Bail. This alternative allows for asylum-seekers already in detention to apply for release on bail, subject to provisions of recognisance and surety. For this to be genuinely available to asylum-seekers they must be informed of its availability and the amount set must not be so high as to be prohibitive.

(iv) Open Centres. Asylum-seekers may be released on condition that they reside at specific collective accommodation centres where they would be allowed to obtain permission to leave and return during stipulated times.

These alternatives are not exhaustive. They identify options which provide State authorities with a degree of control over the whereabouts of asylum-seekers while allowing asylum-seekers basic freedom of movement.

Guideline 5: Procedural Safeguards.

If detained, asylum-seekers should be entitled to the following minimum procedural guarantees:

(i) to receive prompt and full communication of any order of detention, together with the reasons for the order, and the rights in connection with the order, in a language and in terms they understand.

(ii) to be informed of the right to legal counsel. Where possible, they should receive free legal assistance.

(iii) to have the decision subjected to an automatic review before a judicial or administrative body independent of the detaining authorities. This should be followed by regular periodic reviews of the necessity for the continuance of detention, which the asylum-seeker or his representative would have the right to attend.

(iv) either personally or through a representative, to challenge the necessity of the deprivation of liberty at the review hearing, and to rebut any findings made. Such a right should extend to all aspects of the case and not simply the executive discretion to detain.

(v) to contact and be contacted by the local UNHCR Office, available national refugee bodies or other agencies and an advocate. The right to communicate with these representatives in private, and the means to make such contact should be made available.
Detention should in no way constitute an obstacle to the asylum-seekers’ possibilities to pursue their asylum application.

Guideline 6: Detention of Persons under the Age of 18 years.

In accordance with the general principle stated at Guideline 2 and UNHCR’s Guidelines on Refugee Children, minors who are asylum-seekers should not be detained.
In this aspect, reference is made to The Convention on the Rights of the Child, in particular:

Article 2 which requires that States take all measures appropriate to ensure that children are protected from all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians or family members;

Article 3 which provides that in any action taken by States Parties concerning children, the best interests of the child shall be a primary consideration;

Article 9 which grants children the right not to be separated from their parents against their will;

Article 22 which requires that States take appropriate measures to ensure that minors who are seeking refugee status or who are recognised refugees, whether accompanied or not, receive appropriate protection and assistance; and

Article 37 by which State Parties are required to ensure that the detention of minors shall be used only as a measure of last resort and for the shortest appropriate period of time.

Unaccompanied minors should not, as a general rule, be detained. Where possible they should be released into the care of family members who already have residency within the asylum country. Otherwise, alternative care arrangements should be made by the competent child care authorities for unaccompanied minors to receive adequate accommodation and appropriate supervision. Residential homes for children or foster care may provide the necessary facilities to ensure that their proper development (both physical and mental), is catered for while longer term solutions are being considered.

All appropriate alternatives to detention should be considered in the case of children accompanying their parents. Children and their primary caregivers should not be detained unless this is the only means of maintaining family unity.

If none of the alternatives can be applied and States do detain children, this should, in accordance with Article 37 of the Convention on the Rights of the Child, be as a measure of last resort, and for the shortest period of time in accordance with the exceptions stated at Guideline 3.

If children who are asylum-seekers are detained at airports, immigration holding-centres or prisons, they must not be held under prison-like conditions. All efforts must be made to have them released from detention and placed in other accommodation. If this proves impossible, special arrangements must be made for living quarters which are suitable for children and their families.

During detention children have the right to an education which should optimally take place outside the detention premises in order to facilitate the continuance of their education upon release. Provision should also be made for their recreation and play, which is essential to a child’s mental development and to alleviate stress and trauma.

Children who are detained benefit from the same minimum procedural guarantees (listed at Guideline 5) as adults. A legal guardian or adviser should be appointed for unaccompanied minors.

Guideline 7: Detention of Vulnerable Persons

Given the very negative effects of detention on the psychological well being of those detained, active consideration of possible alternatives should precede any order to detain asylum-seekers falling within the following vulnerable categories listed:

Unaccompanied Elderly Persons.
Torture or Trauma Victims.
Persons with Mental or Physical Disability.

In the event that individuals falling within these categories are detained, it is advisable that this should only be 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, hospitalisation and medication counselling, etc., should it become necessary.

Guideline 8: Detention of Women

Women asylum-seekers and adolescent girls, especially those who arrive unaccompanied, are particularly at risk when compelled to remain in detention centres. As a general rule the detention of pregnant women in their final months and nursing mothers, both of whom may have special needs, should be avoided.

Where women asylum-seekers are detained they should be accommodated separately from male asylum-seekers, unless these are close family relatives. In order to respect cultural values and improve the physical protection of women in detention centres the use of female staff is recommended.

Women asylum-seekers should receive the same access to legal and other services, without discrimination as to their gender, and specific services in response to their special needs. In particular they should have access to gynaecological and obstetrical services.

Guideline 9: Detention of Stateless Persons.

Everyone has the right to a nationality and the right not to be arbitrarily deprived of his or her nationality.

Stateless persons, those who are not considered to be nationals by any State under the operation of its law, are entitled to benefit from the same standards of treatment as those in detention generally. Being stateless and therefore not having a country to which automatic claim might be made for the issue of a travel document should not lead to indefinite detention. Statelessness cannot be a bar to release. The detaining authorities should make every effort to resolve such cases in a timely manner, including, through practical steps to identify and confirm the individuals nationality status in order to determine which State they may be returned to, or through negotiations with the country of habitual residence to arrange for their re-admission.

In the event of serious difficulties in this regard, UNHCR’s technical and advisory service pursuant to its mandated responsibilities for stateless persons may, as appropriate, be sought.

Guideline 10: Conditions of Detention.

Conditions of detention for asylum-seekers should be humane with respect for the inherent dignity of the person. They should be prescribed by law.

Reference is made to the applicable norms and principles of international law and standards on the treatment of such persons. Of particular relevance are the 1988 UN Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment, 1955 UN Standard Minimum Rules for the Treatment of Prisoners, and the 1990 UN Rules for the Protection of Juveniles Deprived of their Liberty.

The following points in particular should be emphasised:

(i) All asylum-seekers should undergo an initial screening at the outset of detention to identify trauma or torture victims, for treatment in accordance with Guideline 7.

(ii) There should be segregation within facilities of men and women, and the segregation of children from adults except where they are part of a family group.

(iii). Separate detention facilities should be used to accommodate asylum-seekers. The use of prisons should be avoided. If separate detention facilities are not used, asylum-seekers should be accommodated separately from convicted criminals or prisoners on remand. There should be no co-mingling of the two groups.

(iv) Asylum-seekers should have the opportunity to make regular contact and receive visits from friends, relatives, religious, social and legal counsel. Facilities should be made available to enable such visits. Where possible such visits should take place in private unless there are compelling reasons to warrant the contrary .

(v) Asylum-seekers should have the opportunity to receive appropriate medical treatment, and psychological counselling where appropriate.

(vi) Asylum-seekers should have the opportunity to conduct some form of physical exercise through daily indoor and outdoor recreational activities

(vii) Asylum-seekers should have the possibility to continue further education or vocational training.

(viii) Asylum-seekers should have the opportunity to exercise their religion in practice, worship and observance and to receive a diet in keeping with their religion.

(ix) Asylum-seekers should have the opportunity to have access to basic necessities, i.e., beds, shower facilities, basic toiletries, etc.

(x) Asylum-seekers should have access to a complaints mechanism (grievance procedures), where complaints may be submitted either directly or confidentially to the detaining authority. Procedures for lodging complaints, including time limits and appeal procedures, should be displayed and made available to detainees in different languages.

Conclusion.

The increasing use of detention as a restriction on the freedom of movement of asylum-seekers on the grounds of their illegal entry is a matter of major concern to UNHCR, NGOs, other Agencies as well as Governments. The issue is not a straight-forward one and it is hoped these guidelines have addressed the legal standards and norms applicable to the use of detention. Detention as a mechanism which seeks to address the particular concerns of States related to illegal entry requires the exercise of great caution in its use to ensure that it does not serve to undermine the fundamental principles upon which the regime of international protection is based.

Geneva, 10 February 1999

Last Updated 14 July 2003.

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Submission to the National Inquiry into Children in Immigration Detention from

Michael Williams

The legal framework

Detention

Conclusion.

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